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Drudge Retort: The Other Side of the News
Friday, June 21, 2024

Josh Gerstein: A rift is emerging among the Supreme Court's conservatives - and it could thwart the court's recent march to expand gun rights. On one side is the court's oldest and most conservative justice, Clarence Thomas. On the other is its youngest member, Amy Coney Barrett. The dispute over the historical approach - part of a legal philosophy known as originalism - also could have implications for Donald Trump's pending bid to have the high court declare him immune from prosecution for attempting to subvert the 2020 election.

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The divide became evident last week as the court ruled on what was expected to be an amusing but not terribly significant case over a trademark application for crude anti-Trump T-shirts. Despite the trivial subject matter, Barrett squared off with Thomas in such a confrontational manner that they seemed to be really fighting about something else.

Thomas wrote the majority opinion rejecting the trademark applicant's claim. Barrett (and all the other justices) agreed with that bottom-line result. The quarrel came down to methodology.

In a concurring opinion, Barrett used unusually blunt terms to skewer Thomas' history-based rationale for denying the trademark. She described his approach as "wrong twice over," and she made clear that her gripes went far beyond this case alone.

Barrett complained in her 15-page concurrence that her conservative colleagues have become so enamored of history that they're now employing it even when the record is ambiguous and the purpose of embracing a retrospective approach is unclear.

"The views of preceding generations can persuade, and, in the realm of stare decisis, even bind," Barrett wrote, using the Latin term for the principle that courts should adhere to past rulings. "But tradition is not an end in itself - and I fear that the Court uses it that way here."

"It presents tradition itself as the constitutional argument. ... Yet what is the theoretical justification for using tradition that way?" she wrote.

Barrett's next critique amounts to fighting words among legal conservatives: She compared Thomas' approach to the kind of amorphous, multi-pronged legal tests that conservatives frequently accuse liberal judges of concocting.

"Relying exclusively on history and tradition may seem like a way of avoiding judge-made tests. But a rule rendering tradition dispositive is itself a judge-made test," she asserted.

Last week's trademark case wasn't the first time Barrett has unfurled the yellow caution flag as the court turned to history to resolve a case. Almost a year ago, in a case involving the admissibility of confessions by co-conspirators, Barrett again accused Thomas of making too much of a very limited historical record.

"The Court overclaims. That is unfortunate," Barrett wrote in a solo concurrence, referring to Thomas' majority opinion. "While history is often important and sometimes dispositive, we should be discriminating in its use. Otherwise, we risk undermining the force of historical arguments when they matter most," she declared.

Completely outside the realm of political implications, this is truly huge. ACB is making the argument that fellow conservative justices seeking historical analogues as matters of ruling on contemporary constitutionality are themselves utilizing a "judge-made test" - the same thing these justices decried as being extralegal and outside the power of the SCOTUS.

For those who follow the progression of legal interpretations, ACB is telling Thomas and Alito that not only are their references into history just another "rule" created from the bench, she also argues that the examples they use do not fully represent the totality of viewpoints or considerations of the issues at particular points in history.

"It does seem to me that Justice Barrett is trying to lay down a marker of at least some limitation or clarity in terms of where she and the others on the court see history and tradition' moving in the future," said Catholic University law professor Jennifer Mascott, who clerked for Thomas at the Supreme Court and Kavanaugh when he was an appeals court judge. "Justice Barrett is basically raising questions that could really shift and perhaps limit the impact of the way specific [historical] examples are used."

#1 | Posted by tonyroma at 2024-06-21 10:21 AM | Reply | Newsworthy 1

And now this hits:

Supreme Court upholds gun restrictions against domestic violence suspects

The Supreme Court has ruled that when an individual has been found by a court to pose a credible threat to the physical safety of another, that individual may be temporarily disarmed consistent with the Second Amendment.

Chief Justice John Roberts wrote the opinion, and Justice Clarence Thomas dissented.

"Our tradition of firearm regulation allows the Government to disarm individuals who present a credible threat to the physical safety of others," Roberts wrote.

www.msnbc.com

#2 | Posted by tonyroma at 2024-06-21 10:51 AM | Reply | Newsworthy 1

It never ceases to boggle my mind that Thomas, a black man, would insist on deferring to a mindset from an era when his ancestors where slaves to the people in power coming up with these originalist policies.

#3 | Posted by igashosparks at 2024-06-21 01:19 PM | Reply | Newsworthy 4

"Barrett complained in her 15-page concurrence that her conservative colleagues have become so enamored of history that they're now employing it even when the record is ambiguous and the purpose of embracing a retrospective approach is unclear."

Well duh.

That's all conservatism has ever been.

Cherry picked facts, arranged to halt forward progress and sometimes undo it.

#4 | Posted by snoofy at 2024-06-21 01:28 PM | Reply | Newsworthy 4

Good. Forcing originalism to be practiced by enshrining it in law is BS.

For centuries we've done just fine with having opposing philosophies duke it out.

#5 | Posted by jpw at 2024-06-21 03:26 PM | Reply

Originalism is the most logical form of jurisprudence.

#6 | Posted by BellRinger at 2024-06-21 06:48 PM | Reply | Funny: 2

Originalism is the most logical form of jurisprudence.

POSTED BY BELLRINGER AT 2024-06-21 06:48 PM | REPLY

Nonsense Jeff. We don't live in the same conditions that existed when the Constitution was formed.

#7 | Posted by LauraMohr at 2024-06-21 06:50 PM | Reply | Newsworthy 5

Originalism is the most logical form of jurisprudence.
#6 | POSTED BY BELLRINGER

Got any examples?

#8 | Posted by snoofy at 2024-06-21 06:55 PM | Reply

www.rawstory.com

thomas is bought and paid for.

#9 | Posted by Alexandrite at 2024-06-21 06:57 PM | Reply

Originalism is the most illogical form of jurisprudence.

It's fully illogical to support beliefs and opinions based in the distant past when the breadth of relevant human knowledge and experiences were significantly lesser than they are in the present.

All the writings and wishes of the Founders were based on their bedrock understanding that the Constitution they codified then would obviously need changes and evolve as the nation matured. The last thing they wanted was for future Americans to feel that they were locked into how things were interpreted in their times. These thoughts are in writing throughout the letters and left us for posterity. There was never any ambivalence in understanding that even enumerated rights come with both practical limitations and group/personal responsibilities, for without them one person's liberty could turn into another person's tyranny.

Originalism is nothing but sophistry from those who actually want to see their religious views and morality codified into law by elevating their "belief" on how law should be interpreted sans any dispositive empirical findings or data. What they "know" to be true then is still true right now, - by God - even though no exact analogues from present to past exists. And then they claim that the same "belief" is indeed dispositive simply because they say so over any protestations by the other alleged co-equal branches of government.

#10 | Posted by tonyroma at 2024-06-21 07:43 PM | Reply | Newsworthy 2

#10

Let me be clear, basic rights and principles don't change over time; however, the practical application of those basic rights and principles relating to specific circumstances might change as society does.

It makes no sense - and defines illogic - to wed oneself to viewpoints based in the past when there is no direct analogue. Life nor society is the same as it was at the time of this nation's founding.

#11 | Posted by tonyroma at 2024-06-21 08:04 PM | Reply | Newsworthy 3

@#11 ... Let me be clear, basic rights and principles don't change over time; however, the practical application of those basic rights and principles relating to specific circumstances might change as society does. ...

Yup.

And that is the problem with Originalism.

It is stuck in time.


#12 | Posted by LampLighter at 2024-06-21 08:09 PM | Reply | Newsworthy 2

Since Roberts won't reign in the courts excesses, perhaps she wants to make a name for herself.

After all, the table is wide open.

#13 | Posted by fresno500 at 2024-06-21 10:30 PM | Reply | Newsworthy 1

But more to the topic of this thread...

I remain to be convinced that the current SCOTUS is as MAGA as some say it is.

Yeah, I'll readily say that it leans towards the Right wing of US politics.

But is it MAGA?

I do not see that yet.

#14 | Posted by LampLighter at 2024-06-21 10:33 PM | Reply

Procol Harum - Pilgrims Progress (1969)
www.youtube.com

Lyrics excerpt...

genius.com

...
I sat me down to write a simple story
Which maybe in the end became a song
In trying to find the words which might begin it
I found these were the thoughts I brought along

[Verse 2]
At first I took my weight to be an anchor
And gathered up my fears to guide me round
But then I clearly saw my own delusion
And found my struggles further bogged me down

[Verse 3]
In starting out I thought to go exploring
And set my foot upon the nearest road
In vain I looked to find the promised turning
But only saw how far I was from home

[B]
In searching I forsook the paths of learning
And sought instead to find some pirate's gold
In fighting I did hurt those dearest to me
And still no hidden truths could I unfold
...


Forsook?

OK, it is the past tense of forsake.




#15 | Posted by LampLighter at 2024-06-21 10:41 PM | Reply

LAMP @ #14

"But is it MAGA?"

We'll know one way or the other if the Supremes decide to create a King out of either Trump or Biden. I think their brains are working overtime to calculate the odds in November.

Guesses aside, I don't even have a personal opinion of what they're going to do.

Most experts think they're going to kick it back to the lower court. If they do, Trump's not going to be a happy camper. He wants what he wants and he wants it NOW.

#16 | Posted by Twinpac at 2024-06-21 11:41 PM | Reply | Newsworthy 1

@#16 ... We'll know one way or the other if the Supremes decide to create a King out of either Trump or Biden. ...

Yeah....

imo, by slow-walking any manner of a decision upon whether or not fmr Pres Trump has absolute immunity, SCOTUS seems to have already decided upon the King they desire.


#17 | Posted by LampLighter at 2024-06-21 11:55 PM | Reply | Newsworthy 1

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#18 | Posted by lodokaf at 2024-06-22 03:50 AM | Reply

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#19 | Posted by lodokaf at 2024-06-22 03:51 AM | Reply

"Yup. And that is the problem with Originalism. It is stuck in time."

But it's not.

The constitution has mechanisms that allow for change.

Abortion, for instance, was not probably something that was at the top of mind in 1776. Had it been, there might have been an amendment stipulating that abortion rights would be federally guaranteed. Or federally prohibited. And if it were considered so important by so many, it could be an amendment now.

#20 | Posted by madbomber at 2024-06-22 04:46 AM | Reply | Funny: 1

LAMP

"SCOTUS seems to have already decided upon the King they desire."

That probably goes without saying. But Trump needs this immunity BEFORE the election in November because there's a better than even chance he's going to lose.

If the Supremes don't kick the can back to a lower court, maybe the best thing Trump can hope for is a situational immunity. But that would mean he's wide open for a charge of conspiring to overthrow the government, among dozens of other charges for acts he committed outside his official line of duty as President.

The Supremes certainly know how to stretch the Constitution beyond recognition but creating a King is risky business for themselves as well. It means they've abdicated. their very existence. One wrong move and the crazy King they created would have them executed.

#21 | Posted by Twinpac at 2024-06-22 06:18 AM | Reply | Newsworthy 2

Originalism is a fake doctrine that invites judges and their staff to cherrypick historicial anecdotes and 300 year old dictionaries to backfill their predetermined conclusion. Which is why smart, respectable rightwing judges like Richard Posner call it a scam.
newrepublic.com

#22 | Posted by JOE at 2024-06-22 07:49 AM | Reply

Abortion, for instance, was not probably something that was at the top of mind in 1776. Had it been, there might have been an amendment stipulating that abortion rights would be federally guaranteed. Or federally prohibited. And if it were considered so important by so many, it could be an amendment now.

#20 | POSTED BY MADBOMBER

If women had power abortion would be in the first amendment

#23 | Posted by truthhurts at 2024-06-22 08:06 AM | Reply

#23 You mean if women had all the power?

#24 | Posted by madbomber at 2024-06-22 08:34 AM | Reply

"The constitution has mechanisms that allow for change."

Does Originalism have mechanisms that allow for change?

#25 | Posted by snoofy at 2024-06-22 09:05 AM | Reply

Originalism is the most logical form of jurisprudence.

#6 | POSTED BY BELLRINGER

Actually, it's the most intellectually lazy, especially the text, history, tradition nonsense this court is pushing.

Relying solely on what they thought or explicitly wrote while giving no credence to the clear meaning and intent of the constitution is pure laziness.

#26 | Posted by jpw at 2024-06-22 09:20 AM | Reply

The constitution has mechanisms that allow for change.

That ship has long sailed.

#27 | Posted by REDIAL at 2024-06-22 09:22 AM | Reply

"Abortion, for instance, was not probably something that was at the top of mind in 1776."

And what does Originalism say about abortion?

#28 | Posted by snoofy at 2024-06-22 09:27 AM | Reply

Originalism is the most illogical form of jurisprudence.

#6 | POSTED BY BELLRINGER

FTFY

#29 | Posted by donnerboy at 2024-06-22 01:35 PM | Reply

Is ACB Splitting from Conservative Justices on Originalism?

I will believe it when I see it.

Let's see how (or if) she ever rules on Louisiana's insane Ten Commandments law (and Trumpy's insane immunity case).

#30 | Posted by donnerboy at 2024-06-22 01:39 PM | Reply | Newsworthy 1

If history is going to be used to determine the outcome of legal questions, we don't need people trained in the law, we need historians! Thomas and other originalists are trying to anchor American society to a point in time when diversity wasn't threatening white male privilege.

#31 | Posted by FedUpWithPols at 2024-06-22 03:53 PM | Reply

Whenever you see a headline in the form of a question, the answer is usually doubtful at best.

#32 | Posted by sentinel at 2024-06-22 04:27 PM | Reply

When our founders were alive an abortion was dangerous af.

Times have changed.

Originalists?

On this topic they might as well be insisting our founders wrote about how to build a three stage rocket that could take us to the moon.

#33 | Posted by Tor at 2024-06-22 04:37 PM | Reply

FFS Originalism is about the worst possible concept of jurisprudence there could possibly be.

Knowledge expands with time.

Societies change with time.

Technology radically changes our relationship with each other, society, life itself over time.

A document purporting to represent people MUST be dynamic to protect and expand rights.

Even the smartest person in 1782 would have no concept of the internet, or vaccines or education, or LGBTQ people or the workings of the human brain or the limits of resources or a thousand other factors.

To base current rights on the condition of people in 1782 makes people's current rights conditional, that is by definition. Women had few rights PoC none. To base the current rights on those makes women and PoC inherently second class citizens with fewer rights than white males.

#34 | Posted by truthhurts at 2024-06-22 05:07 PM | Reply | Newsworthy 1

The best definition of Conservatism is "Opposition To Change."

As a judicial "philosophy," Originalism fits the definition.

#35 | Posted by snoofy at 2024-06-22 05:17 PM | Reply | Newsworthy 1

" Actually, it's the most intellectually lazy, especially the text, history, tradition nonsense this court is pushing.

Relying solely on what they thought or explicitly wrote while giving no credence to the clear meaning and intent of the constitution is pure laziness.

#26 | POSTED BY JPW AT 2024-06-22 09:20 AM | FLAG: "

Based on your second paragraph, you clearly don't understand what originalism is.

The Constitution doesn't evolve. Laws don't evolve. They remain in place until they are deliberately changed through an established process.

#36 | Posted by BellRinger at 2024-06-22 05:46 PM | Reply

The Constitution doesn't evolve. Laws don't evolve. They remain in place until they are deliberately changed through an established process.

#36 | POSTED BY BELLRINGER

Which is nonsense and no way to run anything, anywhere anytime.

#37 | Posted by truthhurts at 2024-06-22 05:51 PM | Reply | Newsworthy 1

The Constitution doesn't evolve. Laws don't evolve. They remain in place until they are deliberately changed through an established process.
#36 | POSTED BY BELLRINGER

That doesn't sound right.

Why can't evolution be one of the established processes?

Evolution is a necessary trait for survival in every realm of society from medicine to warfare.

There's no basis for what you are saying.

You pantomime the righteous ignorance of religious zealots who say their holy book is the immutable word of their G-d, except apply it to the Constitution.

That does not a philosophy of jurisprudence make. That is nothing more than zealotry, imposed onto the justice system.

#38 | Posted by snoofy at 2024-06-22 06:14 PM | Reply

"or LGBTQ people"

They had those in 1782.
They had those in 1782 BC.
LGBTQ have always been part of humanity.

#39 | Posted by snoofy at 2024-06-22 06:18 PM | Reply | Newsworthy 1

"or LGBTQ people"
They had those in 1782.
They had those in 1782 BC.
LGBTQ have always been part of humanity.

#39 | POSTED BY SNOOFY

Correct, to clarify, I meant, progressive understanding and acceptance of LGBTQ in a modern context.

#40 | Posted by truthhurts at 2024-06-22 06:24 PM | Reply

That does not a philosophy of jurisprudence make. That is nothing more than zealotry, imposed onto the justice system.

POSTED BY SNOOFY AT 2024-06-22 06:14 PM | REPLY

Exactly correct.

#41 | Posted by LauraMohr at 2024-06-22 06:42 PM | Reply

The Constitution doesn't evolve. Laws don't evolve. They remain in place until they are deliberately changed through an established process.
#36 | POSTED BY BELLRINGER

Current-day SCOTUS changes the Constitution whenever they feel like it. In Heller they functionally deleted the first half of the 2nd Amendment. The Constitution "evolved."

In Dobbs they reversed longstanding precedent on a partisan whim, and laws across the nation did not "remain in place until changed throufh an established process."

For someone who claims to care about civics, you are unwilling to confront the reality that this SCOTUS has thrown a partisan wrench into the established process and made themselves a superlegislature.

#42 | Posted by JOE at 2024-06-23 07:51 AM | Reply | Newsworthy 1

#43. Roe was an example of the court acting as a super legislator. Dobbs undid that and put it back to the states. Heck Congress can create an abortion law at the federal level if it chooses.

Heller affirmed the 2A right to keep and bear arms.

What the left ultimately wants is a UK / Australia national gun ban. It can't happen without first repealing 2A.

#43 | Posted by BellRinger at 2024-06-23 01:11 PM | Reply

You won't answer this, but I'll waste space on the internet by asking again.

What authority does Congress have to protect the right to abortion that this SC will recognize?

Please be specific as to the mechanism in the Constitution that would give them the power.

Please keep in mind that Dobbs specifically stated access to abortion is not a right.

#44 | Posted by truthhurts at 2024-06-23 01:17 PM | Reply

You are clinging to the opinion of a single professor who is clearly misguided. Congress can create a law making assisted suicide legal. Congress can also make a federal abortion law.

It's funny to me that you think POTUS has limitless powers when a Dem occupies the White House and at the same time you think congress doesn't have the authority to create a federal abortion law.

#45 | Posted by BellRinger at 2024-06-23 01:27 PM | Reply

Jeffy: as a fan of originalism I'm sure you'll join me in demanding Thomas get out and start picking cotton after we castrated him for his miscegenation.
And put Barrett back in the kitchen where she belongs.
And,of course, disband the Air Force and standing army

#46 | Posted by northguy3 at 2024-06-23 01:31 PM | Reply

So, you're not going to answer the question.

First, this is MY opinion, I am not repeating what I have read, like you do.

Yes, congress can do anything, that does not mean it will be constitutional.

You cannot identify a power, because the power does not exist.

Murder is a state crime (under most situations). Congress could not pass an assisted suicide law, unless they identified that as a right. In the same way they couldn't outlaw it.

Congress CAN effectively ban abortion nationwide through regulating COMMERCE between states, i.e. one of their enumerated powers. In fact, that is likely where they will try to ban it should republicans control congress-of course ------- may even try to tell the FDA to rescind it's approval of Mifepristone (we'll see how that plays out-hopefully not).
There are some dual use issues with abortion devices.

The Mifepristone case only failed because the plaintiff had no standing. Some of the states are preparing lawsuits that will claim they are injured by FDA's approval of Mifepristone because that allows their citizens to get around the ban. How do you think this SC will rule?

There is simply now power in the Constitution for Congress to protect something like abortion, unless it is a right. Congress (under the 14th) has the authority to protect rights from state infringement. the SC said abortion is not a right.

It is clear you don't understand.

#47 | Posted by truthhurts at 2024-06-23 01:36 PM | Reply

Here are Congress' powers:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the -------- of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;"And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Where is their power to protect abortion?

#48 | Posted by truthhurts at 2024-06-23 01:40 PM | Reply

AMENDMENT XIV

Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

{SNIP}

Section 5.
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Dobbs said abortion is neither a privilege nor an immunity.

Where oh where is the power?

#49 | Posted by truthhurts at 2024-06-23 01:41 PM | Reply

For your further education:

The coming week will likely see the issuance of an opinion in the EMTALA case.

The EMTALA case involves a challenge by Idaho against EMTALA. EMTALA says a state MUST provide emergency abortion care if that hospital accepts federal funds. Idaho law says no abortions even in many emergency situations.

Supremacy SHOULD rule, but...

The case was not dismissed at the state level, at the district level or the appeals level and the SC took up the case and during oral arguments were looking for a way to permit Idaho to overrule federal law.

This will likely be a 5-4 decision in favor of Idaho. Again showing Congress cannot protect abortion.

The mere existence of this case puts the lie that congress can protect abortion

#50 | Posted by truthhurts at 2024-06-23 01:49 PM | Reply

Where is their power to protect abortion?

#48 | POSTED BY TRUTHHURTS

It's like you are trying to teach a hostile foreigner who has never had the benefits or protections of a democratic republic (and who is apparently trying to undermine those very institutions from within) on how our democracy works.

I do appreciate your efforts. But. You sure don't have to tell us how it works. We know.

Maybe you shouldn't try and tell him either.

Maybe let him try his find his own loopholes in our open democratic society to try and exploit.

Just point and laugh when his alternate reality bubble bursts and Actual Reality steps in.

It's the MAGA Way.

#51 | Posted by donnerboy at 2024-06-23 02:01 PM | Reply

I've been told that Article I, Section 8 doesn't actually define Congress' powers and that "general welfare" is a catch-all for anything and everything.

#52 | Posted by BellRinger at 2024-06-23 02:25 PM | Reply

"I've been told that ... "

Is that what they taught you at Trumpy's loyalty academy?

Maybe you should stop listening to those people.

And the voices in your head.


Article I, Section 8, specifies the powers of Congress in great detail. These powers are limited to those listed and those that are "necessary and proper" to carry them out. All other lawmaking powers are left to the states.

Welcome to America Comrade!

#53 | Posted by donnerboy at 2024-06-23 03:20 PM | Reply

#53. That's what I've been told by leftists over the years - every single time government exceeds its authority.

#54 | Posted by BellRinger at 2024-06-23 03:23 PM | Reply

Originalism is the most logical form of jurisprudence.
#6 | POSTED BY BELLRINGER

Perfect example of BellRinger trying his hardest to win Eberly's coveted "most responded to poster" award.

#55 | Posted by ClownShack at 2024-06-23 03:29 PM | Reply

I've been told that Article I, Section 8 doesn't actually define Congress' powers and that "general welfare" is a catch-all for anything and everything.

#52 | POSTED BY BELLRINGER

I am still waiting for what you believe Congress' powers are.

The ------------ "I've been told..." is insufficient.

One may begin to think you don't have an answer.

Perhaps that is because you are a lying piece of ----.

#56 | Posted by truthhurts at 2024-06-23 04:34 PM | Reply

#53. That's what I've been told by leftists over the years - every single time government exceeds its authority.

#54 | POSTED BY BELLRINGER

Since you have been told that "over the years" and "every single time", then you should have zero trouble posting a link to that happening, ever.

Of course, you won't, cause you can't, cause you are a lying piece of ----.

That is who you are.

#57 | Posted by truthhurts at 2024-06-23 04:36 PM | Reply

--------. The left for years has claimed general warfare and interstate commerce as catch-alls. You know it and I know it. You just choose to lie about it.

#58 | Posted by BellRinger at 2024-06-23 05:28 PM | Reply

#56. Article I, Section 8 spells it out quite clearly. The 10th relegates all powers not defined in Article I, Sectuon 8 to the states and the people. It's why initially so many of FDR's overreaches were struck down by the courts. When he threatens court packing, something he could have easily achieved with the huge congressional majority his party had but they rejected, it managed to scare SCOTUS just enough that his programs ended up making it through the courts. That genie is out of the bottle. Which means Congress's powers are much less checked than they were for the first 150+ years of our country. So, here we are.

#59 | Posted by BellRinger at 2024-06-23 05:35 PM | Reply

Which FDR initiatives were thwarted on Tenth Amendment grounds?

Thanks.

#60 | Posted by snoofy at 2024-06-23 05:37 PM | Reply

#56. Article I, Section 8 spells it out quite clearly. The 10th relegates all powers not defined in Article I, Sectuon 8 to the states and the people.

So, you are now admitting that such a power does not exist.

You are arguing that FDR destroyed the relegation of power through his "over reaches".

Since this court has stated that abortion is not a right and thus a 10th Amendment issue, I ask the same question I asked several hours ago.

"What authority does Congress have to protect the right to abortion that this SC will recognize?"

You are now agreeing that Congress does not have that power. You are arguing that Congress should do it anyway based on a nebulous "general welfare" argument (though as an aside you don't provide any real examples of that). But, again.

"What authority does Congress have to protect the right to abortion that this SC will recognize?"

Are you arguing that this court would recognize a Congressional law, without any basis in the Constitution, that says abortion is allowed, say until viability?

Is that your argument? Because there is NO WAY this court would allow that.

So, if not...

What authority does Congress have to protect the right to abortion that this SC will recognize?

#61 | Posted by truthhurts at 2024-06-23 05:57 PM | Reply

You won't answer it

Because you can't answer it

Because there is no answer that is correct.

You would know that, except you aren't too bright.

#62 | Posted by truthhurts at 2024-06-23 05:58 PM | Reply

--------. The left for years has claimed general warfare and interstate commerce as catch-alls. You know it and I know it. You just choose to lie about it.
#58 | POSTED BY BELLRINGER

So, if this is true "for years" You claim you know it.

So, please post anything, any reasonable link to something support it.

As you are presenting it, it should be easy to do.

#63 | Posted by truthhurts at 2024-06-23 05:59 PM | Reply

" You are now agreeing that Congress does not have that power

Prior to the 1940's, yeah, they do probably didn't. Now? They can pretty much damn well do as they please.

#64 | Posted by BellRinger at 2024-06-23 06:12 PM | Reply

#63. The first Nevadan mandate in ACA was argued under interstate commerce grounds. While Roberts upheld it he did so under the power to levy taxes. The left was quietly upset because it was the first time in a long time interstate commerce was limited by the courts. Look at Wickard. Filburn to see how far Commerce got twisted in order to expand federal power.

#65 | Posted by BellRinger at 2024-06-23 06:15 PM | Reply

#65 is referring to the individual mandate.

I am horrible to typing on my phone.

#66 | Posted by BellRinger at 2024-06-23 06:26 PM | Reply

#63. The first Nevadan mandate in ACA was argued under interstate commerce grounds. While Roberts upheld it he did so under the power to levy taxes. The left was quietly upset because it was the first time in a long time interstate commerce was limited by the courts. Look at Wickard. Filburn to see how far Commerce got twisted in order to expand federal power.

#65 | POSTED BY BELLRINGER A

ACA has a tax component

Does abortion have a tax component?

Nope, try again.

Face it, you aren't smart enough to understand.

#67 | Posted by truthhurts at 2024-06-23 06:37 PM | Reply

-#67. Completely unrelated issues.

#68 | Posted by BellRinger at 2024-06-23 08:18 PM | Reply

The left for years has claimed general warfare and interstate commerce as catch-alls. #58 | POSTED BY BELLRINGER

But you disagree with them on that, so why are you using it as your argument here?

What is the originalist case for Congress passing a permissive abortion law?

#69 | Posted by JOE at 2024-06-24 07:17 AM | Reply

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