[KingSnake]

Richard Epstein, Michael Seidman, How Progressives Rewrote the Constitution

Great debate, very informed on CSPAN 2 @ 11 sunday.

I watched it this morning very informed and presents alot of the points that many in WR debate.

Cato hosted the event and is availible @

http://www.cato.org/event.php?eventid=2655


The debate is keyed to Epstien's new book, were he argues that the progressive interpritations of the constituion during the new deal was in derigation of the orginal meaning and has effectively nullified alot of private competition and created government sanctioned cartels.

Seidman argues that some portions of the constitution do not, did not, and should not have settled meaning. Seidman argues that some provision are better left open so the political process has the power to act express the majorities will.

Both summaries are my dumbed down interps.

Very, heady debate on the proper role of regulation and taxes as well.

[KingSnake]

Louis Michael Seidman is professor of law at Georgetown University Law Center. He is co-author of a widely respected constitutional law casebook and author of numerous articles on criminal justice and constitutional law.



Ours is an age of growing doubt about constitutional theory and of outright hostility to any theory that defends judicial review. Why should a tiny number of unelected judges be able to validate or invalidate laws on such politically controversial issues as abortion, religion, gender, and sex—or even determine how the president is elected? In this provocative book, a leading constitutional theorist offers an entirely original defense of judicial review. Louis Michael Seidman argues that judicial review is defensible if we set aside common but erroneous assumptions—that constitutional law should be independent from our political commitments and that the role of constitutional law is to settle political disagreement.

Seidman develops a theory of “unsettlement.” A constitution that unsettles, that destabilizes outcomes produced by the political process, creates no permanent losers nursing deep-seated grievances, he says. An “unsettling” constitution helps to build a community founded on consent by enticing losers into a continuing conversation. The author applies this theory to an array of well-known cases heard by the Supreme Court over the past several decades, including the fall 2000 election decision.

[KingSnake]

Richard A. Epstein teaches law at the University of Chicago and is an adjunct scholar at the Cato Institute.


How Progressives Rewrote the Constitution explores the fundamental shift in political and economic thought the Progressive Era brought about and how the Supreme Court in the early decades of the 20th century, invoking those ideas, undermined the Constitution.

Epstein demonstrates how Progressives attacked many of the "Old Court's" key decisions and eventually weakened the Court's thinking concerning limited federal powers and the protection of individual rights. Working with a primitive understanding of economics and ignoring evidence that competitive markets were steadily producing prosperity, Progressives opted instead for government-created cartels and monopolies.

Whether in their Commerce Clause jurisprudence or their treatment of antitrust, labor regulation, businesses "affected with the public interest," or civil liberties, Progressives on the Court undermined the Framers' principles, paving the way for the modern redistributive and regulatory state.

"The Old Court's mixture of broad liberties and limited police power works far better," writes Epstein. "The Progressives come out best on the few occasions when they couch their decisions in an intellectual framework they generally discarded."

How Progressives Rewrote the Constitution shows that our modern "constitutional law," fashioned largely by the New Deal Court in the late 1930s, has its roots in Progressivism, not in our country's founding principles, and how so many of those ideas, however discredited by more recent economic thought, still shape the Court's decisions.

[GermanBJJ]

FDR forced the Supreme Court to interpret the commerce clause so expansively that it effectively killed any states rights. There is almost nothing the federal government cannot do with the current interpretation of the CC. And the SC's ruling regarding what it cannot do are very recent and very limited. (Lopez, etc.).

When the SC interprets the Constitution is such a way that the federal government has almost unbridled authority over almost any aspect of our lives, you know their interpretation is wrong. A plain reading of the Constitution and an understanding of the historic role of the states proves without a shadow of a doubt that the SC is dead wrong regarding the CC.

[KingSnake]

Originally Posted by GermanBJJ

FDR forced the Supreme Court to interpret the commerce clause so expansively that it effectively killed any states rights. There is almost nothing the federal government cannot do with the current interpretation of the CC. And the SC's ruling regarding what it cannot do are very recent and very limited. (Lopez, etc.).

When the SC interprets the Constitution is such a way that the federal government has almost unbridled authority over almost any aspect of our lives, you know their interpretation is wrong. A plain reading of the Constitution and an understanding of the historic role of the states proves without a shadow of a doubt that the SC is dead wrong regarding the CC.

I agree with you that congress regulating a farmer who grows his own grain to fed his own animals should be outside the bounds of interstate commerce. I can see the justification given the huge interplay of interstate commerce and how purely intra-state transaction can, in theory, impact the national markets. Lopez was a great example of stretching the commerce power beyond the realms of reason. But at what point on the causal chain should the court say that the regulations effect on commerce is too attenuetad? It's a tough question.

It seems like the hard part for the judges is formulating a workable test. In theory, I agree with Seidman that open interpritation is good because it encourages all political parties to fight it out, but problems arise when the congress is bought by dollars not votes. Seidman implicitly relies on elected officials responsiveness to voter preferences while the originalist/textualist approach seems much more skeptical.

[GermanBJJ]

Originally Posted by KingSnake

I agree with you that congress regulating a farmer who grows his own grain to fed his own animals should be outside the bounds of interstate commerce. I can see the justification given the huge interplay of interstate commerce and how purely intra-state transaction can, in theory, impact the national markets. Lopez was a great example of stretching the commerce power beyond the realms of reason. But at what point on the causal chain should the court say that the regulations effect on commerce is too attenuetad? It's a tough question.

It seems like the hard part for the judges is formulating a workable test. In theory, I agree with Seidman that open interpritation is good because it encourages all political parties to fight it out, but problems arise when the congress is bought by dollars not votes. Seidman implicitly relies on elected officials responsiveness to voter preferences while the originalist/textualist approach seems much more skeptical.

Well, the test for me is obvious:

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

Notice, there is no language with regard to aggregate tests, effect tests, etc. So using such tests is unreasonable IMO. I believe the federal government can regulate that which crosses state lines. If I sell you a watermelon that I grew on my farm and I ship to FL, they can regulate. If I sell you that same watermelon at my farmer's market, they cannot regulate.

[Cujo_Trey]

The Supreme court is functioning almost like a policeman in today's America.
The SC can literally impact my life on a personal basis and does all the time. That is much more than even the President can do. Just because legislator are corrupted by almighty dollar doesn't mean that open interpretation should be scrapped. This "progressive" obliviation of jurisprudence while harming us with respect to so-called settled law, it does not protect us from issues such as the Eminent Domain abuses that thieve property from the poor to hand it to the local governments OR private corperations. This is the classic worst of both worlds scenario.

[GermanBJJ]

Honestly, if you want to thank any government branch for protecting rights, it is going to be the Supreme Court. In fact, if you are pro-freedom, you better thank your lucky stars we have the Supreme Court.

Remember, the Supreme Court never takes freedom away. The legislative branch takes freedoms away and the Supreme Court merely reviews the legislature.

If you want to put blame on any institution for the degradation of liberty, it is probably the legislature. I am not saying the SC isn’t culpable for not stopping the legislature, I am just saying that the SC’s hands are often tied. The legislature should take the vast majority of the blame.

[KingSnake]

Originally Posted by GermanBJJ

Well, the test for me is obvious:

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

Notice, there is no language with regard to aggregate tests, effect tests, etc. So using such tests is unreasonable IMO. I believe the federal government can regulate that which crosses state lines. If I sell you a watermelon that I grew on my farm and I ship to FL, they can regulate. If I sell you that same watermelon at my farmer's market, they cannot regulate.

More and more I'm agreeing with that approach since it is textually valid and simple to apply.

I get concerned about an intra state farmer that decides to employee 8 year pickers for 35 cents an hour though. If the state allowed it and the commerce power didn't reach it, who could stop it?

Like you said, the state houses and the congress are responsible for the laws. I'd prefer to have the power to regulate in play and lawmakers that weren't tools creating monopoly and un-needed regs.

[Cujo_Trey]

Originally Posted by GermanBJJ

Honestly, if you want to thank any government branch for protecting rights, it is going to be the Supreme Court. In fact, if you are pro-freedom, you better thank your lucky stars we have the Supreme Court.

Remember, the Supreme Court never takes freedom away. The legislative branch takes freedoms away and the Supreme Court merely reviews the legislature.

If you want to put blame on any institution for the degradation of liberty, it is probably the legislature. I am not saying the SC isn’t culpable for not stopping the legislature, I am just saying that the SC’s hands are often tied. The legislature should take the vast majority of the blame.

The SC can't necessarily take freedom away, but they can interpret it away. However I agree with your placing of the majority of blame on legislators of course.