Jason Lewis on the SCOTUS decision, very interesting....

[John S.]

Click link and listen to the second hour! I promise you'll look at the decision differently!



http://www.ktlkfm.com/cc-common/podcast ... nlewis.xml

[tweener]

I like the way jason looks at things, but my arguement is this...
1) they talk about selective incorporation, and I beleive like many in the past that "fundamental" rights should be incorporated to the cities and state level...

it would only make sense that the bill of rights would be fundemamental...

others may not be..

2) they have allready been picking and choosing for years which are incorporated..... preseident has allready been set, even if it is wrong.....we can't go back and change precedent.

[jgalt]

I am in complete agreement with Jason - and have believed this since long before I heard him speak about it. The short version, for those who don't want to listen to the show...:

The Bill of Rights should never have existed in the first place. The Constitution sets out the specific powers that the federal government is to have, i.e. it has only those powers specifically granted to it in the actual text of the Constitution. Since there is no power given in the Constitution for Congress to make any law abridging the freedom of speech, the freedom of the press, the quartering of soldiers in citizens homes, the taking of property without due process of law, etc, there is absolutely no reason to explicitly state that Congress could not do these things. By including a Bill of Rights, its supporters effectively planted the idea that Congress could in fact do things that the Constitution granted no power to do, thereby setting up the concept that the federal government could do pretty much whatever it wanted to, so long as it didn't do the things explicitly forbidden to it by the Bill of Rights. I suspect that this is the fatal flaw in the Constitution that has allowed for the situation we are in today...

Also, tweener, while I agree wholeheartedly that the "strict constructionists" on the SCOTUS had little practical choice to rule in any way other than the way they did because of precedent, that doesn't mean the ruling is in any way consistent with a "strict constructionist" point of view. It is, in fact, 180 degrees opposite, with the four voting against it effectively ruling in favor of upholding the Constitution as it was intended - though they get no credit for this, as this was most certainly not their intent.

The Constitution is now officially a dead letter. It has effectively been so for decades, but is officially as of today. The structure may still seem sound to those who cannot, or refuse to, see the quite obvious signs of collapse, but it is like a dam that has reached the point where cracks have irreversibly begun to form that cannot be reversed. The devastating collapse might yet still be averted, but it isn't likely. Controlling how it comes apart & limiting the amount of damage that is done is the best we can hope for - accomplishing that will require a tremendous amount of very hard (& dangerous) work, and the cost will be stupendously high.

The large percentage of those who use it as justification for some policy or another which they support, do so only because it is still a very effective symbol of the freedom & liberty which many still seek, but which is likely gone for good - unless, of course, some small percentage are willing to stand up and fight for it... We'll see what happens...

[John S.]

The part where Jason says what is to stop the federal government, IE:SCOTUS from ruling that states no longer have the right to make laws regarding 1) The Death Penalty.
2) Late term or any term abortions
3) The constitutionality of Obamacare
4) Welfare


Although they did the right thing on the 2nd amendment, it does set a precedence for the feds to take over states rights and control of our own states. He also stated in this case under ANY other issue but "GUNS" the tables would have been turned 180 degrees with the libs and conservatives backing just the opposite side of the issues!

[ijosef]

Lewis makes a good argument, particularly in regards to the incorporation doctrine. Barron v. Baltimore established that the bill of rights only applied to the federal gov't, but it wasn't too long before that went out the window. I can understand incorporation, especially under the privileges and immunities clause, but not under the due process clause as it currently stands.

jgalt (awesome handle by the way) makes a great point regarding the original argument against the bill of rights. The opponents feared that the bill of rights would come to define our rights, instead of the people retaining all rights not specifically enumerated to the federal gov't in the US Constitution. They were correct - our rights are largely defined by what's in the constitution. The gov't had stepped on everything else, including some of the the bill of rights as well. I'm glad they did give us the first ten amendments though, since gov't would have encroached even further without them.

I also believe that the gov't in currently in violation of the 2nd Amendment with the gun control acts of 1935 and 1968.

[cmj685]

As I read the liberal dissent of the decision, I think I kept hearing echoes that sounded something like this: "The 2nd Amendment doesn't fit our vision of modern-day America anymore, and therefore it should be rejected. A new, modern society demands a new way of thinking and acting which cannot be determined any longer by that document." I think jgalt is right with his analysis. I think the disintegration of historic America is happening all around us. The only rule in the future will be the majority opinion of people--particularly powerful people, the ruling elite.

[nyffman]

I think the disintegration of historic America is happening all around us.

Or, the pendulum is swinging, like pendulums tend to do.

[GregM]

As I understand it, the Bill of Rights was attached to the new constitution to gain the support of anti-Federalists who feared that a central government might encroach upon certain natural rights, like self expression and self defense. How would the constitution have been ratified without those ten amendments?

[jgalt]

As I understand it, the Bill of Rights was attached to the new constitution to gain the support of anti-Federalists who feared that a central government might encroach upon certain natural rights, like self expression and self defense. How would the constitution have been ratified without those ten amendments?

It wouldn't have been. However, that doesn't change the fact that it wasn't necessary to protect our pre-existing liberties, and likely has caused more problems than it has solved...

[GregM]

I blame human nature and the corruption of career politicians for those problems, not our constitution.

[jgalt]

No doubt our Constitution is better than anything that has been created before or since, but no one believes it is perfect. The existence of a Bill of Rights is one glaring deficiency. The ease with which the Supreme Court became the most powerful branch of government (as opposed to the weakest, as originally envisioned) is another.

To blame "human nature & the corruption of career politicians" is not at all helpful, as they existed before the Constitution, and will continue for as long as humans are, well, humans. A fruitful discussion would be one in which the shortcomings of the document are acknowledged, and ways to fix them are considered.

As I suspect you are aware, one of, if not the main priority in the crafting of the Constitution was to come up with a system that would constrain the negative effects of "human nature & the corruption of career politicians"'. I think we can all agree that it has failed miserably on that count. Discovering the exact causes of why & how this happened is at least as important as figuring out how best to fix the problems we face.

Having said that, the deficiencies built into the Constitution did not become a serious problem until the Progressive Movement came to the fore at the very end of the 19th century. The Progressives are the "enemy" of the Constitution, and resolving the pre-existing issues within it will not have any effect on the Progressives, since they either twist the words of the Constitution to mean whatever is most helpful to them in the moment, or ignore it altogether. We definitely have bigger fish to fry in the near term, but how best to resolve the issues with the original document must be determined in parallel with the frying of the Progressive fish - otherwise it will be too easy to simply replace the Progressives with some other group / attractive ideology that will be able to use the still-flawed Constitution for purposes other than that which it was designed.

[DeanC]

John Galt =