From: Jim Burnes - Denver <jim.burnes@ssds.com>
Date: Fri, 13 Nov 1998 03:04:57 +0800
To: Jim Choate <ravage@einstein.ssz.com>
Subject: Re: "social responsibility" was (dbts: Privacy Fetishes, Perfect) (fwd)
In-Reply-To: <199811120230.UAA27385@einstein.ssz.com>
Message-ID: <Pine.SOL.3.91.981112091708.5257A-100000@denver>
MIME-Version: 1.0
Content-Type: text/plain



> 
> > Date: Wed, 11 Nov 1998 19:27:21 -0700 (MST)
> > From: Jim Burnes <jvb@ssds.com>
> > Subject: Re: "social responsibility" was (dbts: Privacy Fetishes, Perfect) (fwd)
> 
> > > Actually this is the central fallacy of those that haven't bothered to
> > > actually read the federalist papers, the anti-federalist papers or the
> > > constitution, much less say how it should be amended. 
> 
> That's an easy way to brush aside having to prove your point. Especialy
> after having drawn a completely illogical and incorrect conclusion like
> this.
> 

perhaps.  it just seems so unbelievable that someone who had read all
these would not understand that the US was founded as a constitutional
republic with limited *powers*, a bill of *rights* that points out the
rights that people already had and should protect.

> > > If a constitutional amendment had to have been passed it would have been
> > > to give the federal government unlimited power to do what they believe is
> > > in the interests of our general welfare.
> 
> This sentence makes no sense, mind rewording it so I know specificaly what
> it is your talking about. No amendment has to be passed.
>

It makes absolute sense.  The constitution enumerates the specific powers
of the federal government.  Please go get a copy and read it. You would
have to create an amendment to give the federal government unlimited
powers.  For example, if the constitution had been written otherwise
prohibition would never have needed an amendment.  Legislators would
just have said it was for the "general welfare".  Having lived in the
early 1900's and educated in the previous century they were still under
the delusion that they lived in a republic.
 
> >   Madison explicitly addressed
> > > the issue of unlimited federal power emanating from the welfare clause.
> 
> Would you mind explaining where providing for the *general* welfare equates
> to unlimited powers?

I can't explain it to you because I don't believe it.  I can tell you
that that specific clause is what exploded the size and scope of federal
power.  It was specifically pointed to by the 1937 supreme court re the
social (in)security decision.  If you would like chapter and verse I can 
probably track it down.  The supremes in 1937 used it and you used
it in your email when you said that the general welfare clause was the
the reason we had some sort of social contract.

I can tell you that if you read the general welfare clause as meaning
the feds have the power to do whatever the legislators and the executive
believe is in our own best interests -- that opens them up to virtually
unlimited powers.  I'm sure Hitler, Mao and Stalin believed they were
doing what was in the interests of the "general welfare" also.  91 million
dead later you have your answer. Oops..I forgot about the Khmer Rouge..
make that 92 million.  The problem with that kind of "general welfare"
is that it is fundamentally incompatible with individual rights.

> No government has unlimited powers and providing for
> the general welfare can't honestly be extrapolated to that conclusion.

Tell that to Hitler, Mao and Stalin.  Tell that to the Japanese 
Americans that were interned in prison camps.  Have we arrived at
unlimited power yet, Jim?  How about burning children alive in their
own church without those responsible being punished?  Have we arrived
at unlimited power yet, Jim?

> Within the context of the Constitution general welfare is in reference to
> building a framework for the expression of life, liberty, and the pursuit of
> happiness.
> 

As much as I love Jefferson's prose, that is a part of the declaration
of independence and not the constitution.  The DOI is a document of 
intent, the constitution is a document of law.  The general welfare
clause is almost meaningless.  Like the DOI it specifies intent, but not a
specific delegation of power.  The delegation of powers, the seperation 
of those powers and reservation of individual human rights are what is 
the motive forces behind the constitution.

If the general welfare clause were a law it would have to be found
invalid for vagueness.

> > > Had the supreme court bothered to read the founder's writings on this
> > > they would have found it in a week or two.  That's assuming their
> > > conclusion was not already decided.
> 
> Found what? Whose conclusions, the founding fathers or the sitting supremes?

Read it again, Jim.  "bothered to read the *founder's writings* on this"

> 
> > > The constitution is a document that enumerates the powers of the federal
> > > government.  It is very specific.
> 
> And prohibits the enumeration of individual liberties by the same
> government. Rather handy little situation that, since it completely blows
> holes in any move to derive totalitarian control (which by the way is not
> democratic).

You seem to be confusing the concepts of "powers" and "rights".  People
have rights, institutions have powers.  The constitution enumerates the
specific *powers* of the federal government.  However agenda motivated
SC judges in 1937 seemed to ignore the 9th and 10th amendment to the 
constitution and extend the meaning of the "general welfare" clause to an 
extra-constitutional extent.  They overrode the limited powers of the
federal government.

 > 
>   As Madison stated, if the general
> > > welfare clause meant what the socialist engineers wished it meant, there
> > > would have been no need to enumerate the specific powers of the federal
> > > government.
> 
> Well to be accurate there was no enumeration of the specific powers in the
> original Constitution, it's why Jefferson (who was in France at the time),
> Madison, and others fought and supported the Bill of Rights. Because of the
> 9th and 10th such moves are inherently doomed to failure.

Excuse me.  There was no enumeration of the powers of the federal
government in the original constitution?  How exactly do you create
a constitution without a mention of the various powers that branches
of government are going to have?

Not to mention that the arguments with respect to a bill of rights was 
not that the original constitution bestowed unlimited powers, but
that since the constitution only bestowed limited powers that there
was no need for a bill of rights.  Jefferson was concerned that with
no BOR people would not have a guidebook to know when the state
was overstepping its mandated powers.

> 
>   In fact, it would have been as if the founding fathers had
> > > said: 
> > > 
> > > "The federal government has unlimited power to do whatever it
> > > feels necessary."
> > > 
> > > "The powers of the federal government are as follows"
> > > 
> > > (1) 
> > > (2)
> > > (3) etc
> > > 
> > > Which would be ridiculous on its face.
> 
> This entire section is ridiculous. To say on one hand the powers are
> unlimited and then to proceed to list them weakens the argument, this was
> also the reason for the 10th. It prevents such extrapolations as this.
>

I'm sorry it was so unclear to you.  Let me reiterate.  The 1937 Supreme
Court stated that the general welfare clause was a grant of unlimited 
federal powers to impose "general welfare".  You let me know what
"general welfare" would limit them to.  I was pointing out, as Madison
stated, that to read the constitution this way would be to read it
as if the constitution had just granted the federal government unlimited 
powers and then proceeded to enumerate the specific powers.  As I
pointed out and as appears above "this would be ridiculous on its
face".  You simply restated that and then proceeded to argue with
me.

> > > The reality of the situation is that Roosevelt kept trying to stack the
> > > Supreme Court.
> 
> Wow, I didn't realize Roosevelt was even alive to participate in the
> original Constitutional debates.
>

Since this was a dicussion of the nails in the coffin of the Republic
and since that covers about 150 years it is necessary to cover that
time span.
 
> I'm going to stop here since we are obviously off on one of your pet peeves
> that isn't related to the discussion at hand. To jump 150 years in one fell
> swoop is pretty extraordinary. The reality is, as Jefferson himself said,
> that the laws of one generation aren't the laws of another.

Yes, the destruction of the constitution is a pet peeve of mine as it is
for many people on the list.   The reason I even brought it up is that 
you seemed to be misinformed on the extent of the powers of the federal 
government granted by the constitution.  The whole "social contract" 
theory is bunk.

The reality is that the laws of the previous generations certainly are the
laws of succeeding generations.  The entire body of English Common Law is
based on this concept.  The constitution is amendable, that is what
Jefferson meant.  By all means amend it if you are able, but don't pretend
under color of law that the constitution means something other than what
it says.

Here is the point of this whole dicussion:

(1) The constitution chains down the federal government in a prison of
specific limited powers.

(2) The general welfare clause is not an escape clause from that prison.

(3) The general welfare clause is not a justification for transfer 
payments or other systems of theft.

(4)The dismantling of the republic began with the civil war, was
accelerated by the formation of the Federal Reserve and new taxation
systems and eventually finalized by Roosevelt's stacking of the supreme court
when Social (in)Security was challenged in 1937.  The subsequent reading by
the Supreme that the "general welfare" clause was a delegation of 
unlimited federal powers essentially destroyed the notion of limited
federal power and began the vast bureaucratic machine that we know
and love today.

jim

"The two enemies of the people are criminals and government, so let us tie
the second down with the chains of the constitution so the second will not
become the legalized version of the first." -- Thos. Jefferson

". . . we are fast approaching the stage
   of the ultimate inversion: the stage
   where the government is free to do
   anything it pleases, while the citizens
   may act only by permission; which is
   the stage of the darkest periods of
   human history, the stage of rule by
   brute force."
   - Ayn Rand , The Nature of Government

"In questions of power, then, let no more be said of confidence in man, 
but bind him down from mischief by the chains of the Constitution."
  --Thomas Jefferson

"A wise and frugal government, which shall restrain men from injuring one 
another, shall leave them otherwise free to regulate their own pursuits 
of industry and improvement, and shall not take from the mouth of labor
the bread it has earned."
  --Thomas Jefferson 

"No man can take another's property from him without his consent. This 
is the law of nature; and a violation of it is the same thing, whether it
be done by one man who is called a king, or by five hundred of another
denomination..."
  --Samuel Adams