Star Trek

Lostshaker,

To address your points about trade and that “not all forms of human organization are governmental”, if you go back far enough in history  you arrive at tribal organization with no overarching government. Yes, trade may (or may not) have occurred between tribes. If it did occur, it was not necessarily of sufficient magnitude that such forms of organization were dependent upon trade for their very existence. Trade was a luxury, not a necessity. Granted, as societies grew more complex and interdependent, trade became more vital.  From this perspective, government can be seen as flowing and evolving form tribal forms of economic and political organization.

 

There is a difference between “forces of production and wealth” and “trade”.  I do not dispute that trade usually developed in tandem with government and with such “forces of production”. They are, however, concepts describing separate aspects of historical reality. Theoretically at least, “production” can occur without “trade”. For example, in a command economy where resources are distributed by edict rather than by “free trade”.  I am not advocating or celebrating such an alternative, merely pointing it out as an alternative.  So, to say that government is “economically dependent” is a different statement that to say that government is “trade dependent”.  Your statement that government is “trade dependent” is not accurate in the sense of being absolutely true in all cases, although it can be seen as true under many actual historical circumstances.  

 

Granted that historical accuracy, it should be noted that “trade” and “capitalism” are not completely synonyms of each other. Trade can occur between societies organized upon essentially socialist (or communist) principles in which the means of production are controlled in a manner not consistent with traditional capitalist societies. That “trade” might occur within and between such societies does not make them “capitalist”.  

Moreover, trade can also be seen as dependent upon government – do government regulations exist to foster and protect “free” trade, do laws prohibit “free” trade, etc. 

 

Lostshaker,

 

Regarding our discussion about "case law and "Constitutional Law",  I would submit to you that what you describe as “Constitutional Law” and what I describe as “Case Law” can be identical.  “Case Law” does not “by its very nature” stray from the Constitution. “Case Law” has the potential of straying from the Constitution, but there is nothing about “its very nature” which causes it to do so.

 

The Constitution serves as first principles.  Case law then interprets the meaning of those first principles. As new situations arise not specifically contemplated in the Constitution, case law builds on earlier decisions. Therefore, what I call “case law” does not automatically stray from original intent, it can be a matter of just fleshing out that original intent.

Lostshaker: You’re taking “general Welfare” out of context. General Welfare relates to those matters, which Congress is specifically granted Powers over under the Constitution, Section I, Article 8. It is therefore not constitutionally valid to promote other aspects of the general Welfare outside of those listed for such action is favoritism.

 

caltrek: I think you mean Article I, Section 8, which includes the clause that “The Congress shall have the Power to lay and collect Taxes, Duties, Imports and Excises, to pay the Debts and provide for the common Defense and General Welfare of the United United States, but all Duties, Imposts and Excises shall be uniform throughout the United States.”

 

So that Article clearly grants the power to Congress to act to provide for the general welfare. Under that article, further powers are explicitly spelled out, but not stated as being exhaustive of the powers that Congress can assume in providing for the “General Welfare”.

 

The Tenth Amendment is often cited as restricting Congress to specifically stated powers. However, that clause concerns the relative powers of the States and of the people, and does not overturn the notion of the Constitution having designated certain powers to Congress. I would argue that one of those powers not overturned is to act to provide for the general Welfare as granted in Article I, Section 8.

 

Certainly, actions taken by Congress can be examined on a case by case basis to determine whether they involve undue favoritism, but actions to promote the general welfare cannot, or at least should not, be classified as promoting favoritism in all cases.

 

 

caltrek: As I recall Marbury v Madison was so effective because it affirmed the power of the Supreme Court to exercise the authority that it was granted under the Constitution.

Lostshaker: Big surprise that government would celebrate a court ruling that empowers any branch of government, which effectively empowers the government as a whole and lends precedent to the other branches empowering themselves through illegitimate means… for example, the Executive Branch empowering itself with legislative ability via the executive order.

If the Court were concerned with upholding the Constitution, and the principles of a Republic embedded therein, than it wouldn’t have been necessary for the Court to establish its legitimacy, as such was outlined in the Constitution. However, Marshall was concerned with creating a strong federal government. The Constitution merely got in his way. 

caltrek:   I did not say that the decision was made “to establish its legitimacy”, I said that it “affirmed the power of the Supreme Court to exercise the authority that it was granted under the Constitution”.  Section 1, Article III of the Constitution “vested in one supreme court” the “judicial Power of the United States.”

Section 2 extended the judicial power “to all Cases, in Law and Equity, arising under this Constitution.”

In Marshall’s own words: “It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. [5 U.S. 137, 178]   So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. 

If then the courts are to regard the constitution; and (t)he constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.

Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law.

This doctrine would subvert the very foundation of all written constitutions. It would declare that an act, which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare, that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.

That it thus reduces to nothing what we have deemed the greatest improvement on political institutions-a written constitution, would of itself be sufficient, in America where written constitutions have been viewed with so much reverence, for rejecting the construction.”

Marshall then makes reference to Article VI of the Constitution: “It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank.

Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument.”

These are hardly the words of one who sees the Constitution as a document that “merely got in his way”. 

 

(My apologies for any confusion caused by the time lag between this last response on the three responses that I submitted before it. This last response required some research and more careful thought, hence the delay in including it with the other responses).

 

 

Link to text of Marbury v Madison:

 

http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=5&page=137

 

 

 

 

 

 It is when we drive off people that support us on fiscal issues but don't care as much about social issues.  The social conservatives are why I will never identify myself as Republican and the socialist are why i will never identify myself as Democrat even though both parties have postions I support.  I vote republican more often then not due to the fact I feel fiscal issues are more imporant than social issues.  This is why I made fun of homosexual groups blasting Obama for not repealing the Defense of Marriage Act as soon as he got into office given the state of the economy, the healthcare "debates", and Russia invading Georgia.  Gays not getting tax benifits from the federal and state governments if far less important than potential world war.