Checks, Balances and Constitutional Theory

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Basic differing philosophies

1)That which is not forbidden is permitted
2)That which is not permitted is forbidden

My reading of the Constitution and Founding Fathers writings leads me to believe that they wanted #1 for the people and #2 for the government.

Obviously a lot of people in our history haven't looked on this the way I do. And a lot have.

So what is the "right" way to look at it? Isn't that the basic difference between the right and the left in our politics? Can it be that simple? Or do we absolutely have to complicate it? and if we have to , do we have to complicate it as much as we do?

"Our lives are nasty, brutish and short..." (Hobbs, I think) This idea implies that we must be controlled, ruled for our own good, and is an underlying principle of elitists, who protect us from ourselves (and them from us).

I believe the Founding Fathers had something else in mind.

We gave, and continue to give the Fed gov the power and the authority, and men in govt are using it in our name. Today, many of us feel that power is not being used wisely or prudently in our best interest in a great number of areas. We can ask, beg, wheedle, cajole, pressure, and threaten, but the plain fact is that the only time we can actually force those we have hired (elected) to be responsive to our will is through elections every 2 and 4 years, and even then, we can only dismiss those who have broken faith with us, if enough of us vote our concience and not just our pocketbooks.

We are running full tilt down a narrow path with a deep drop on either side. I suppose in some ways we always have been, but today it seems particularly clear the danger of straying too much one way or the other. What is unclear is where the path turns and the rocks in it that will cause us to stumble and perhaps fall.

I suggest that we remember Franklin, and hang together. If nothing else, we will be in good company.

 

[Socrates]

The four horsemen retired. Old men, not up for a battle to alter the court, by constitutional amendment. How anyone could say that the court didn't pass socialist legislation after 36 has forgotten perhaps the absolute most absurd case of all time: Wickard. The Federal government telling a farmer he can't grow wheat on his own land for his own consumption, and, justifying it with the Commerce Clause.:barf: The court had to back peddle from that position in following decisions until 1995, when Lopez was passed.

As for the way to view such situations: I suggest another approach.

Congress can get away with anything, unless their is a Constitutional basis to sue: in other words, you need standing to sue, and invalidate such garbage.

Kali currently has a case going that may give teeth to Heller, and establish the level of scrutiny for 2nd amendment violating laws.

The question would be: What standard of scrutiny would a bail out be evaluated on?

A more fundamental approach would be to attack the congressional ability to tax.

Another would be to try and slow the government down, by limiting their meeting time, and pay. With a 9% approval rating, Congress is ripe for a huge constitutional pay cut, by Constitutional Amendment.

The sad part is the rich boys that play the market game profit in an unstable market. However, that is the EXACT reverse of what is good for America, which needs stability, and consistent, measured growth. If Bush had not bailed the companies out, or bad business folk, and instead put a trillion dollars into buying stocks, he would have accomplished a couple things. First, if the government owns stock, it's intrest is long term growth, and self-preservation, at all costs. Therefore, they are unlikely to create wild market swings by buying and selling a trillion or so dollars in stock. By putting so much money into the market, they would hugely diminish the ability of a few, ultra wealthy oil folks to manipulate the market for their own gain, by causing great swings, by putting money in, and pulling it out suddenly.

 

[Al Norris]

Mike, while I might agree with some of what you reported, the fact remains that the "Drama" did exactly what it was supposed to do. The Court backed off and explicitly approved the New Deal packages.

Ultimately, the court packing plan did a LOT of damage to Roosevelt. Opposition to new New Deal programs increased markedly, and virtually no New Deal legislation (certainly none of any importance) passed after 1936.

Not exactly as this time line shows:

• 1935 Jan 7: Panama Refining Co. v. Ryan, 293 U.S. 388 (1935) Held, 8-1: National Industrial Recovery Act Sect. 9(c) unconstitutional
• 1935 May 6: Railroad Retirement Bd. v. Alton R. Co., 295 U.S. 330 (1935) Held, 5-4: Railroad Retirement Act unconstitutional
• 1935 May 27: Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935) Held, 9-0: National Industrial Recovery Act unconstitutional
• 1935 May 27: Humphrey's Executor v. U.S., 295 U.S. 602 (1935) Held, 9-0: President may not remove FTC commissioner without cause.
• 1936 Jan 6: United States v. Butler, 297 U.S. 1 (1936) Held, 9-0: Agricultural Adjustment Act unconstitutional
• 1936 May 18: Carter v. Carter Coal Company, 298 U.S. 238 (1936) Held, 6-3: Bituminous Coal Conservation Act of 1935 unconstitutional
• 1936 Nov 3: Roosevelt electoral landslide
• 1936 Unk: Justice Owen Roberts switches sides creating a liberal majority which upheld all New Deal packages
• 1936 Dec 16: West Coast Hotel Co. v. Parrish argued
• 1937 Feb 5: Conference vote on West Coast Hotel
• 1937 Feb 5: Judiciary Reorganization Bill of 1937 ("JRB37") announced.
• 1937 Feb 10: NLRB v. Jones & Laughlin Steel Corp. argued
• 1937 Mar 9: "fireside chat" regarding national reaction to JRB37
• 1937 Mar 29: West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) Held, 5-4: State of WA minimum wage law constitutional
• 1937 Mar 29: SONZINSKY V. UNITED STATES , 300 U.S. 506 (1937) Held, 9-0: National Firearms Act a constitutional tax
• 1937 Apr 12: NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937) Held, 5-4: NLRA constitutional
• 1937 May 24: Steward Machine Company v. Davis, 301 U.S. 548 (1937) Held, 5-4: Social Security tax constitutional
• 1937 Jul 22: JRB37 referred back to committee by a vote of 70-20 to strip "court packing" provisions.
• 1938 Feb 16: [Second] Agricultural Adjustment Act of 1938
• 1939 May 15: U.S. v. Miller, 307 U.S. 174 (1939) Held, 8-0: National Firearms Act constitutional and not a usurpation of State police powers, No second amendment violation.
• 1941 May 26: Agricultural Adjustment Act of 1938, amended
• 1942 Nov 9: Wickard v. Filburn, 317 U.S. 111 (1942) Held, 9-0: Agricultural Adjustment Act upheld

The obvious point I was trying to make, was that during this era, our country took a decided turn away from what and how the government operates (via the constitutional powers). The Checks and Balances failed. Miserably.

 

[Mike Irwin]

Phyrric victory at best, Al.

After 1936, even with the huge landslide that Roosevelt enjoyed, he wasn't able to get a single significant piece of New Deal legislation through Congress again.

And, it's also HIGHLY erroneous to say that Roosevelt's plan to pack the Supreme Court somehow "scared" the justices into rolling over and licking Roosevelt's boots.

It also requires an examination of the differences in the pieces of New Deal legislation that the court did review/reject, and the pieces that the court refused to review.

The court was not engaged in a program of rejecting every piece of New Deal legislation 20 minutes after it came off of Roosevelt's desk.



I think it's also an incorrect assessment to say that the 'checks and balances' failed miserably.

The checks and balances acted exactly as the framers NEVER envisioned them to act.

Remember, it was the Supreme Court itself that decided, via Marbury v Madison, that it had the ultimate judicial review over laws passed by Congress and enacted by the President.

That was a role that the framers never envisioned, because they never wrote that role into the powers allocated to the Supreme Court.

 

[Al Norris]

Phyrric victory at best, Al.

One takes victory, in whatever manner it is presented.

The court was not engaged in a program of rejecting every piece of New Deal legislation 20 minutes after it came off of Roosevelt's desk.

Was that implied in what I wrote? I certainly don't think so.

When one studies the cases of the era, one can conclude that certain legislation was negated because it was an overreach of legislative powers. After the 1936 election, and the defection of Owens, one can also conclude that "something" happened; Several cases were decided in the governments favor that before had been decided against.

That "something" has always been open to debate.

Remember, it was the Supreme Court itself that decided, via Marbury v Madison, that it had the ultimate judicial review over laws passed by Congress and enacted by the President.

That was a role that the framers never envisioned, because they never wrote that role into the powers allocated to the Supreme Court.

That's actually a popular misconception. Jefferson played heavily upon that, BTW.

Judicial Review has been part and parcel of the judicial powers, as far back as the Magna Carta.

There really was no stretch in Marbury. If this were not so, the rest of the founders (who were mostly alive then) would have sounded the Hue and Cry. Jefferson led the charge, followed by whom?

 

[publius42]

The court had to back peddle from that position in following decisions until 1995, when Lopez was passed.

I don't follow you here. What cases represent a "back peddle" from the Wickard decision? I can't think of one.

Lopez might count as the only back peddle, and it was a half stroke at best. It reviewed a law which had already been replaced, so it had no practical effect at the time, and the Gun Free School Zones Act remains on the books today. It does not appear to have had any effect on subsequent cases, and the dissenters in Raich said that the majority conclusion in that case had reduced Lopez to a "drafting guide" for Congress.

 

[Socrates]

You are correct. When reading Lopez, you get that impression...

 

[buzz_knox]

And, it's also HIGHLY erroneous to say that Roosevelt's plan to pack the Supreme Court somehow "scared" the justices into rolling over and licking Roosevelt's boots.

Maybe so, but that's precisely is what is taught by at least a few constitutional law professors.

 

[Tennessee Gentleman]

The switch in time that saved nine.

http://www.boston.com/news/globe/ideas/articles/2005/12/04/supreme_switch/?page=1

Not sure it has been decided either way.

 

[Al Norris]

Again, speculation, Tennessee.

Even the article itself says we may never know the real reasons for the switch.

And yet, everything did change after 1937. Felix Frankfurter, then a professor at Harvard but soon to join the court, himself called Roberts's move ''a somersault.''

As I wrote earlier, "That "something" has always been open to debate."

 

[Tennessee Gentleman]

Again, speculation, Tennessee.

You are right, we cannot know what they thought without them telling us. However, the coincidences are compelling and I think fit in with aspects of human nature.

I think somewhere in all justices heart of hearts their decisions are kept in check by the possibility of their court becoming irrelevant.

I like the famous quote by Oliver Wendell Holmes "If the nation wants to go to hell, then GD let 'em do it."