[jbooth]

That's a really bad example, given the interstate commerce clause. Pelosi was laughing it off because damn near everybody, including the majority-conservative supreme court, agrees that regulating healthcare is regulation of interstate commerce, just like 1000s of other things that the federal government does which don't happen to be hot political footballs at the moment.

Conversely, most people that I've talked to agree that the NSA listening is very much not constitutional as per the 4th amendment. Even if you think it's constitutional, you have to do a lot of weasel wording about the definition of 'search and seizure'.

[jacoblyles]

It was actually a very close ruling (5-4) that hinged on whether "regulating interstate commerce" gave the power to the government to compel people to participate in commerce.

Personally, I disagree with the Wickard v. Filburn ruling that gave the power to the government to control what a farmer grows on his own land to feed to his own cattle under the "interstate commerce" power. The Constitution was distorted beyond any reasonable reading of the English language during the FDR administration and we never recovered.

The Republic is dead, FDR killed it. It's just taken us awhile to get used to living in a totalitarian state. Well, here we are.

[dragonwriter]

> It was actually a very close ruling (5-4) that hinged on whether "regulating interstate commerce" gave the power to the government to compel people to participate in commerce.

No, it didn't hinge on that point. The court split a number of different ways on different points in the case, but the rationale to which a majority signed on to for finding the individual mandate constitutional was the Taxing Clause, not the Commerce Clause.

There was an apparent 5-4 majority against finding for it under the Commerce Clause (the four conservative dissenters who would have struck it down plus Roberts), though there was no single opinion to that effect joined by any majority.

[jbooth]

Yeah, but the only reasons it was close were political. The individual mandate is well within the bounds of interstate commerce regulation when you compare it to some of your and my examples of existing jurisprudence that aren't politically controversial at the moment.

[CWuestefeld]

But the eventual SCOTUS decision did determine that it's not covered by the Interstate Commerce Clause. So your explanation of Pelosi's laugh may illustrate what was going on in her mind (as well as most other legal scholars at that date), but it also shows that they were wrong in the final analysis.

The reason that ObamaCare survived wasn't because of the Interstate Commerce loophole. It was because SCOTUS determined that it's a tax, and thus came in through the power of Congress to levy taxes.

[Torgo]

In my cynical opinion Roberts wrote his finding as a tax to prevent being responsible for the ruling that found you could use interstate commerce to argue the government could compel you to actually _engage in commerce_ so that your activity could then be regulated, because inactivity affects the market. Ginsburg wrote a pissy rebuttal defending the Commerce Clause interpretation. It's almost comical she had to write a dissent for a decision in her favor simply because she loves the omnipotentCommerce Clause so fucking much.

[embolism]

Ordering people to pay money to a government approved set of corporations is not regulating healthcare it's regulating the people and undermining property rights.

What's next? A selected group of 'food providers' that you have to pay because the government decides that they provide a better diet than people would choose from the free market?

[jbooth]

It's not new. You've got mandatory flood insurance from a selected group of companies, mandatory osha safety training from a selected group of companies, mandated accounting procedures that must be certified by selected people...

If you disagree with the law on principle, that's fine, it's certainly not a perfect solution.

But those are political objections. Based on how the interstate commerce clause has been interpreted for a wide variety of issues, it's not unconstitutional (for most working definitions of constitutional). That's why Pelosi laughed and moved on to the next question.

[embolism]

This is a good argument for the constitution meaning essentially nothing since if there are no limits on how the government can control how people spend their money, there are no real limits on how much control the government can exert over the individual.

I'm not saying you're wrong, just that your point isn't really about what is or is not constitutional, but rather that interpretation has rendered the constitution meaningless so anything is constitutional now. Perhaps this is why Pelosi laughed at the idea of something being unconstitutional.

[dragonwriter]

> I'm not saying you're wrong, just that your point isn't really about what is or is not constitutional, but rather that interpretation has rendered the constitution meaningless so anything is constitutional now.

Except that that's clearly not the case, as plenty of things remain prohibit by the Constitution, as we see the Supreme Court finding as recently as today [1].

Sure, the interstate commerce power is generally interpreted in a fairly broad manner today, but that is very different than "anything is constitutional now".

[1] http://www.supremecourt.gov/opinions/12pdf/11-9540_8m58.pdf

[CWuestefeld]

plenty of things remain prohibit by the Constitution

The language of your statement reveals the problem (sorry for being deconstructionist...)

There is very little that the Constitution prohibits -- that's not how it's constructed. It's not designed to blacklist certain governmental powers.

Rather, it starts from a perspective where all rights belong to the people, and the government may do nothing. It then whitelists certain powers as the people have decided to vest them with the government. That is, the government can do nothing other than the things the people have enumerated for it in the Constitutions (particularly Article 1 Section 8).

That people think of government power in terms of whether it's prohibited by the Constitution rather than whether it's allowed by the Constitution reveals how far away we've gotten from understanding how it was intended to work.

[dragonwriter]

> The language of your statement reveals the problem (sorry for being deconstructionist...)

Sure, but not for being wrong.

> There is very little that the Constitution prohibits -- that's not how it's constructed. It's not designed to blacklist certain governmental powers.

There's quite a lot that the Constitution prohibits the government from doing.

> That people think of government power in terms of whether it's prohibited by the Constitution rather than whether it's allowed by the Constitution reveals how far away we've gotten from understanding how it was intended to work.

That people think that there is a difference shows how little people have paid attention to the Bill of Rights, a rather critical piece of the Constitution, which, as part of its whole stack of specific prohibitions, made the two superficially-conflicting approaches you refer to equivalent when everything not explicitly granted to the federal government was explicitly reserved against the federal government (see Amendment 10.)

[embolism]

Presumably that set of opinions is meant to make the point that the Supreme Court is still ruling things unconstitutional and therefore some things are still unconstitutional. This is true, but irrelevant.

The point is that if anything can be ruled constitutional, then the ruling something unconstitutional is merely a tool for the federal government to use to regulate the states and lesser courts, not any kind of protection against the power of the federal government itself against the rights of the individual.

[dragonwriter]

> The point is that if anything can be ruled constitutional

The Constituton isn't magic. No matter what it says, courts applying it have always been able to rule anything constitutional (or, conversely, unconstitutional.) Like any set of rules for human behavior, it is not self enforcing.

The Constitution has never, from day one, been a protection against the power of the federal government, it is at most a warning about what the public intends to limit the federal government to, and it has force exactly to the extent that the public is willing to follow up on that warning.

[dreamdu5t]

Shhhh.. lest people be reminded that the government's claim to power is arbitrary.