FDR's Economic Bill of Rights: A Good or Bad Idea?

[oldfart]

Lets, as to not go into some weeds, grant you that point. The question is: "FDR's Economic Bill of Rights: A Good or Bad Idea?" At face value, you think this question is a straw man?

No, I think arguing over how they are to be "enforced" is a straw man. Aspirational statements by definition have no enforcement. How is the Boy Scout Oath enforced? Or any statement of professional ethics with a "best efforts" clause?

 

[oldfart]

Lets, as to not go into some weeds, grant you that point. The question is: "FDR's Economic Bill of Rights: A Good or Bad Idea?" At face value, you think this question is a straw man?

No, I think arguing over how they are to be "enforced" is a straw man. Aspirational statements by definition have no enforcement. How is the Boy Scout Oath enforced? Or any statement of professional ethics with a "best efforts" clause?

Sorry for the awkward posting, but it occurs to me that the same enforcement problem occurs in the original Bill of Rights. How do we enforce the prohibition of unreasonable searches? What makes the exclusionary rule the constitutional remedy?

 

[Publius1787]

Lets, as to not go into some weeds, grant you that point. The question is: "FDR's Economic Bill of Rights: A Good or Bad Idea?" At face value, you think this question is a straw man?

No, I think arguing over how they are to be "enforced" is a straw man. Aspirational statements by definition have no enforcement. How is the Boy Scout Oath enforced? Or any statement of professional ethics with a "best efforts" clause?

If your going to take the question at face value then you must assume that this is a constitutional proposition. If you think it is a constitutional proposition then you must weigh how much individual liberty will be lost in the governments efforts to guarantee a certain amount of positive liberty. Negative liberty always wanes to the enforcement of policies that are designed to "improve" positive liberty. One is nearly absence of force and the other implies increased government force. Indeed, if the government guarantees that its citizens must have a certain standard of living it must use a higher amount of force to enforce the law than that of maintaining a negative liberty heavy set of principles, of which the constitution largely is. So I do not think that the question of enforcement is a straw man. These questions must be asked of those who favor laws that demand increased positive liberty.

 

[Publius1787]

In short, I believe that the "general welfare" clause was intended primarily as a preamble to the enumerated powers, and secondarily as a saving clause to lend flexibility to extend the enumerated powers without amendment when there was substantial consensus that evolving circumstances made such flexibility logical. The Tenth Amendment, the judicial balancing tests, and the political process working through elections would provide the checks and balances to correct any over-enthusiasms.

I've heard the Air Force argument before. If your that caught up over a name perhaps we should change it back to the "Army Air Corps?" Does it make the Air Force any less of an Army since the name change? Intelligence services? We could easily place them under the authority of the Department of Defense or State Department, both of which were used as intelligence services before the CIA.

Good arguments all, but it seems you are trying to have your cake and eat it too. There is absolutely no mention in the Constitution of an intelligence service, and if you argue that it is implicit in the concept of other government agencies, where does it end? Where does the authority to prescribe weights and measures end? Is "No child left behind" testing derived from that clause? Does that give the federal government full authority to regulate education, because it can be measured?

It seems that you have adopted a far looser construction than I use, for your argument for "implied powers" is much broader than mine.

Madison and Jefferson, not that Jefferson had a hand in writing the Constitution, together with George Washington's attorney general ((Edmund Randolph) who did play a hand in writing the Constitution), all asserted that the term "general welfare" was meant so as to limit the enumerated powers of congress. In other words, when enforcing the enumerated powers you must do so in a manner that effects everyone generally for their benefit. Likewise the law must be necessary and proper so as to carry out the enumerated powers. In the end they were ignored and Hamilton's, who spent more time away from the constitutional convention huffing and puffing than he did at the convention, advice became law.

Here is how Hamilton got around the question I posed above. The Necessary and Proper Clause states that in caring out the foregoing powers congress has the authority to make all laws necessary and proper for their enactment. What Hamilton did after consulting a lawyer in Philadelphia was assert that the words "necessary" and "proper" simply meant "convenient." Indeed, they put a lot of weight into the word "necessary." However, Hamilton included the words "general welfare" as an enumerated power. Ergo, congress has the authority to enact laws that are necessary and proper for carrying out the general welfare, and thus, necessary and proper no longer mean necessary and proper, but, simply convenient. Still confused? Look at the term "general welfare" as Madison and Jefferson put it and the confusion will melt away.

You might want to consult Blackstone which is the original source of Hamilton's position, but it's still a cute story. Legal terms often have meanings different from common usage, and "necessary", "proper", and "useful" are related terms with a history traced to the Statutes of Edward I.

There is plenty of evidence that most of those at the constitutional convention with a written record on the issue of the meaning of the words "general welfare" sided with Madison. This is not an issue of strict constructionism as there is more than one area of the constitution where strict constructionism applies more, and others, where it applies less. "Cruel and Unusual," for example, obviously cannot be interpreted via strict constructionism.

I agree with you, but that insight seems to contradict your position. Who decides and on what basis which portions of the Constitution are to be strictly constructed and which not? It seems to me that you have talked yourself into exactly my position as I discussed the Founders' attitudes toward the amendment process and flexibility in applying the Constitution.

But if we end up having essentially arrived at the same spot by different roads, there is no difference of principle and no harm in that.

Not having my cake and eating it to. Intelligence is a legitimate function of the State Department and US Military. Has there ever been a time in history where this has not been the case? And the Air Force is indeed an Army.

No need to consult Blackstone, though I will gladly accept a reference from his commentaries so as to read what he said of the wording matter. Thanks for bringing this up. Nevertheless, Hamilton's thinking can be found here. and it is exactly as I described it. Avalon Project - Hamilton's Opinion as to the Constitutionality of the Bank of the United States : 1791 . Perhaps a cute story, but an accurate one.

I would argue that the majority founders took a more strict constructionist view of the US constitution than our strict constructionists do. The question of who decides is an easy one. Whoever has the best and most reasonable argument in the court of law should prevail. Nevertheless, so as to get around the confines of the constitutional amendment process, we have nominated judges who believe in a magically changing constitution. This rendered the amendment process wholly unnecessary in most cases and fits toward political ideology more so than it does the law for both sides. The glue that holds it all together is the 10th Amendment, which is, the least cited amendment in successful court cases today. It was designed to be the most obvious and used.The Constitution should remain silent where it is silent and should speak where is demands an opinionated response.

 

[oldfart]

Lets, as to not go into some weeds, grant you that point. The question is: "FDR's Economic Bill of Rights: A Good or Bad Idea?" At face value, you think this question is a straw man?

No, I think arguing over how they are to be "enforced" is a straw man. Aspirational statements by definition have no enforcement. How is the Boy Scout Oath enforced? Or any statement of professional ethics with a "best efforts" clause?

If your going to take the question at face value then you must assume that this is a constitutional proposition. If you think it is a constitutional proposition then you must weigh how much individual liberty will be lost in the governments efforts to guarantee a certain amount of positive liberty. Negative liberty always wanes to the enforcement of policies that are designed to "improve" positive liberty. One is nearly absence of force and the other implies increased government force. Indeed, if the government guarantees that its citizens must have a certain standard of living it must use a higher amount of force to enforce the law than that of maintaining a negative liberty heavy set of principles, of which the constitution largely is. So I do not think that the question of enforcement is a straw man. These questions must be asked of those who favor laws that demand increased positive liberty.

Since FDR proposed no constitutional amendment but rather legislation, I think the only reasonable interpretation of his "Economic Bill of Rights" is as an aspirational statement. As such it is a preamble to legislation. Is it a good idea? As intended I would say generally yes. Would I modify it? Of course, aspirational statements should be updated from time to time. When I was a Cub Scout in the early 50s I promised to "be square". The language has been updated. Applying the rigors of constitutional analysis to such matters seems to me to be a silly waste of time, so as we have both restated our position more than once, I hope this is an issue upon which we simply disagree.

 

[oldfart]

I've heard the Air Force argument before. If your that caught up over a name perhaps we should change it back to the "Army Air Corps?" Does it make the Air Force any less of an Army since the name change? Intelligence services? We could easily place them under the authority of the Department of Defense or State Department, both of which were used as intelligence services before the CIA.

Good arguments all, but it seems you are trying to have your cake and eat it too. There is absolutely no mention in the Constitution of an intelligence service, and if you argue that it is implicit in the concept of other government agencies, where does it end? Where does the authority to prescribe weights and measures end? Is "No child left behind" testing derived from that clause? Does that give the federal government full authority to regulate education, because it can be measured?

It seems that you have adopted a far looser construction than I use, for your argument for "implied powers" is much broader than mine.



You might want to consult Blackstone which is the original source of Hamilton's position, but it's still a cute story. Legal terms often have meanings different from common usage, and "necessary", "proper", and "useful" are related terms with a history traced to the Statutes of Edward I.

There is plenty of evidence that most of those at the constitutional convention with a written record on the issue of the meaning of the words "general welfare" sided with Madison. This is not an issue of strict constructionism as there is more than one area of the constitution where strict constructionism applies more, and others, where it applies less. "Cruel and Unusual," for example, obviously cannot be interpreted via strict constructionism.

I agree with you, but that insight seems to contradict your position. Who decides and on what basis which portions of the Constitution are to be strictly constructed and which not? It seems to me that you have talked yourself into exactly my position as I discussed the Founders' attitudes toward the amendment process and flexibility in applying the Constitution.

But if we end up having essentially arrived at the same spot by different roads, there is no difference of principle and no harm in that.

Not having my cake and eating it to. Intelligence is a legitimate function of the State Department and US Military. Has there ever been a time in history where this has not been the case? And the Air Force is indeed an Army.

No need to consult Blackstone, though I will gladly accept a reference from his commentaries so as to read what he said of the wording matter. Thanks for bringing this up. Nevertheless, Hamilton's thinking can be found here. and it is exactly as I described it. Avalon Project - Hamilton's Opinion as to the Constitutionality of the Bank of the United States : 1791 . Perhaps a cute story, but an accurate one.

I would argue that the majority founders took a more strict constructionist view of the US constitution than our strict constructionists do. The question of who decides is an easy one. Whoever has the best and most reasonable argument in the court of law should prevail. Nevertheless, so as to get around the confines of the constitutional amendment process, we have nominated judges who believe in a magically changing constitution. This rendered the amendment process wholly unnecessary in most cases and fits toward political ideology more so than it does the law for both sides. The glue that holds it all together is the 10th Amendment, which is, the least cited amendment in successful court cases today. It was designed to be the most obvious and used.The Constitution should remain silent where it is silent and should speak where is demands an opinionated response.

Again, I think we have both fully developed our positions.

 

[Publius1787]

Lets, as to not go into some weeds, grant you that point. The question is: "FDR's Economic Bill of Rights: A Good or Bad Idea?" At face value, you think this question is a straw man?

No, I think arguing over how they are to be "enforced" is a straw man. Aspirational statements by definition have no enforcement. How is the Boy Scout Oath enforced? Or any statement of professional ethics with a "best efforts" clause?

Sorry for the awkward posting, but it occurs to me that the same enforcement problem occurs in the original Bill of Rights. How do we enforce the prohibition of unreasonable searches? What makes the exclusionary rule the constitutional remedy?

No, it is not the same enforcement problem. When you decide to both defend negative liberty and enforce positive liberty at the same time you have a conflict of interest because when the government is involved in the positive liberty business it must necessarily erode your negative liberties. As history has proven, one or the other must give and you end up with less of both. The Bill of Rights was designed to defend negative liberty in the hopes that it will lead to a great deal of positive liberty without government direct enforcement of positive liberty. This has largely been the case throughout US history, however, since the induction of government involvement in large scale advocacy of increasing positive liberty by government fiat, you have seen a more regressive effect.

 

[Publius1787]

Good arguments all, but it seems you are trying to have your cake and eat it too. There is absolutely no mention in the Constitution of an intelligence service, and if you argue that it is implicit in the concept of other government agencies, where does it end? Where does the authority to prescribe weights and measures end? Is "No child left behind" testing derived from that clause? Does that give the federal government full authority to regulate education, because it can be measured?

It seems that you have adopted a far looser construction than I use, for your argument for "implied powers" is much broader than mine.



You might want to consult Blackstone which is the original source of Hamilton's position, but it's still a cute story. Legal terms often have meanings different from common usage, and "necessary", "proper", and "useful" are related terms with a history traced to the Statutes of Edward I.



I agree with you, but that insight seems to contradict your position. Who decides and on what basis which portions of the Constitution are to be strictly constructed and which not? It seems to me that you have talked yourself into exactly my position as I discussed the Founders' attitudes toward the amendment process and flexibility in applying the Constitution.

But if we end up having essentially arrived at the same spot by different roads, there is no difference of principle and no harm in that.

Not having my cake and eating it to. Intelligence is a legitimate function of the State Department and US Military. Has there ever been a time in history where this has not been the case? And the Air Force is indeed an Army.

No need to consult Blackstone, though I will gladly accept a reference from his commentaries so as to read what he said of the wording matter. Thanks for bringing this up. Nevertheless, Hamilton's thinking can be found here. and it is exactly as I described it. Avalon Project - Hamilton's Opinion as to the Constitutionality of the Bank of the United States : 1791 . Perhaps a cute story, but an accurate one.

I would argue that the majority founders took a more strict constructionist view of the US constitution than our strict constructionists do. The question of who decides is an easy one. Whoever has the best and most reasonable argument in the court of law should prevail. Nevertheless, so as to get around the confines of the constitutional amendment process, we have nominated judges who believe in a magically changing constitution. This rendered the amendment process wholly unnecessary in most cases and fits toward political ideology more so than it does the law for both sides. The glue that holds it all together is the 10th Amendment, which is, the least cited amendment in successful court cases today. It was designed to be the most obvious and used.The Constitution should remain silent where it is silent and should speak where is demands an opinionated response.

Again, I think we have both fully developed our positions.

I was kinda hoping to go further into the weeds. I enjoy being pressed.

 

[expat_panama]

...wealth is created by just hard work --but hey, hard work is fun!

Or the old fashioned way - inherited.

Right now America's total private wealth is about $80 trillion. That's eight times what it was in 1950 after adjusting for inflation. I realize it's difficult for many to understand that making wealth is hard work, but the new $70 trillion had to come from somewhere and our grandparents simply did not have that money to give us.

 

[oldfart]

Not having my cake and eating it to. Intelligence is a legitimate function of the State Department and US Military. Has there ever been a time in history where this has not been the case? And the Air Force is indeed an Army.

No need to consult Blackstone, though I will gladly accept a reference from his commentaries so as to read what he said of the wording matter. Thanks for bringing this up. Nevertheless, Hamilton's thinking can be found here. and it is exactly as I described it. Avalon Project - Hamilton's Opinion as to the Constitutionality of the Bank of the United States : 1791 . Perhaps a cute story, but an accurate one.

I would argue that the majority founders took a more strict constructionist view of the US constitution than our strict constructionists do. The question of who decides is an easy one. Whoever has the best and most reasonable argument in the court of law should prevail. Nevertheless, so as to get around the confines of the constitutional amendment process, we have nominated judges who believe in a magically changing constitution. This rendered the amendment process wholly unnecessary in most cases and fits toward political ideology more so than it does the law for both sides. The glue that holds it all together is the 10th Amendment, which is, the least cited amendment in successful court cases today. It was designed to be the most obvious and used.The Constitution should remain silent where it is silent and should speak where is demands an opinionated response.

Again, I think we have both fully developed our positions.

I was kinda hoping to go further into the weeds. I enjoy being pressed.

Same here. Rather than replaying the same hole over and over, I just like moving to the next and hope I don't hit the tee shot into the water hazard. Meet you in the sand bunker!