General Welfare and Captain Obvious

Posted in Uncategorized on October 10th, 2010 by bl1y

I know, it’s Sunday and I should be doing something more entertaining than blogging, but hell, I’m a masochist, so I thought I’d ruin a perfectly good quiet morning to explain the “General Welfare Clause” to all you Constitutional illiterates out there, because it turns out that even lawyers who have taken Constitutional law classes and supposedly understand basics of legal interpretation still mess this one up.

The General Welfare Clause comes from Article I, Section 8, Paragraph 1 of the Constitution (aka: 1.8.1):

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;

There’s a lot going on in that clause, four commas, a semicolon, twelve extraneous capitalizations, and a misspelling of defense.  It’s easy to see how some people would end up reading it like this:

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;

Babababooey, Health Care Reform!

But wait, is that the correct way to read this clause?  Not according to the Supreme Court in United States v. Butler (1936).  The court, along with pretty much anyone who has spent more than 10 minutes thinking about the issue and isn’t a partisan hack, came up with a different understanding.  The “common Defence and general Welfare” stuff is not something that Congress has the power to provide, but is rather a restriction on the purposes for which it may tax and spend.

Imagine you are a parent of a teenaged boy named Billy.  In your home you have the rule “Billy may use the car to go Johnnie’s house.”  But, one day Billy is a little punkass and so you ground him for a week.  Billy says he can still go to Johnnie’s house, because you already set down the rule “Billy may use the car to go Johnnie’s house.

So, what do you do? Let Billy go out, or keep him grounded?

The correct answer is smack him across the face and inform him that the Johnnie’s house clause is not a general right to go to Johnnie’s house, but rather a restriction on what he is allowed to use the car for.  This is basically the same as general welfare clause.  It is not a grant for Congress to do anything it wants in the name of general welfare, but rather a restriction on the purposes it may tax for.

But how do we know this is the correct reading, and not merely an alternative, mutually reasonable reading?  The answer lies in two places of the Constitution.

First, we look at 1.8.2-18, the rest of the powers granted to Congress.  If Congress had a power to do anything in the name of general welfare, the next seventeen paragraphs would be rendered redundant.  But, as we all should have learned in the first month of law school, expressio unius est exclusio Latina lingua obscurium. Or, in lay people’s terms, if it ain’t on the list, you can’t do it.

This is actually a pretty weak argument because there is also the principle of ejusdem generis cola, which tells us when Congress passes a law saying “The national party may serve soda, Coke, Sprite, Mountain Dew Code Red,” these are meant to be illustrative, not restrictive.  The specific sodas are meant to be examples of what may be served, so the event planner doesn’t get confused on only serve soda water.  So, 1.8.2-1.8.18 could be there to tell Congress what we have in mind by “general welfare.”

Thankfully, we also have the Latin-American principle of leges posteriores priores contrarias abrogant, which roughly translated means “it’s always in the last place you look,” or in this case “but see the Tenth Amendment.”

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

If you take the “Congress can do anything in the name of the general welfare” approach, Amendment 10 puts you in quite a pickle.  The power to provide for the general welfare is basically the power to do anything, meaning nothing is reserved to the states.  Was this put in as a joke?  That would mean we basically wrote in “The women not delegated to Neil Strauss, Tucker Max, or Tiger Woods, nor prohibited by Andrea Dworkin or Catherine McKinnon, are reserved to beta males respectively, or to the chodes.”

I guess that’s one way to read it.  But, the more reasonable reading is that if the general welfare clause did originally give Congress unrestrained power to do whatever it thinks is best, the Tenth Amendment overrides that, and imposes the more restrictive reading.  Or, probably the most reasonable understanding of all, that Congress never started with the Game Genie, and the Tenth Amendment simply allocated the powers that hadn’t already been divvied up.

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Air Farce

Posted in Uncategorized on April 13th, 2010 by bl1y

Ever met anyone who claimed to be a strict constructionist, who believes that Congress and the federal government should be limited to only the very specific powers the Constitution bestows and should literally be able to nothing else?  Here’s a fun two word question that will really fuck with them:

Air Force.

BOOM!

Article I, Section 8, Paragraphs 12 and 13 provide:

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;

Where is the Air Force?  It’s not there!  Now, you could argue that “armies” means “armed forces,” but then what’s with the Navy language?  It would be redundant, and we generally assume that the founders didn’t put meaningless stuff in the Constitution.  Obviously the founders believed armies means the Army (it’s plural because the Army is divided into armies), and Navy means the Navy.

Originally the Air Force was part of the Army, as the Army Air Corps.  I’d be open to the argument that the Air Corps was Constitutional as part of the Army.  But, it is now its own branch, independent from the Army, and the Constitution doesn’t say “To provide and maintain a Navy, etc.”

Now, once you get out of strict construction you just say that the even though the founders said Army and Navy, they meant to provide us with a world class, modern military, and adding an Air Force is entirely in line with the founder’s intentions and does no harm to the Constitution.

I believe in having a small, limited government, but that doesn’t mean I can’t have fun and frack around with people who take extreme positions.

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Why I Hate (NAA) Colored People

Posted in Uncategorized on February 5th, 2010 by bl1y

The NAACP are a bunch of race-baiting political hacks.  Happy Black History Month.

Every year the NAACP releases their Congressional report card, which analyzes whether Congressmen on legislation for or against the position taken by the NAACP.  The NAACP describes the votes they look at as the “bread and butter civil rights agenda.”  Bullshit.

Many of the votes they look at are indeed the exact type of thing you’d expect the NAACP to care about, such as the death penalty, hate crime legislation and wage discrimination.  But, several of the votes don’t really fit in:

Confirmation of Hillary Clinton as Secretary of State.

Protecting Second Amendment gun rights in Washington, DC.

Allowing Judicial modification to avoid foreclosure.

There’s a bunch that are pretty questionable things to include in the NAACP report card, but here’s the one that first made me realize something weird is going on:

Delay of digital TV transition.

What the hell?  Are they serious?  Keeping analog TV around a little longer is a “bread and butter” civil rights issue?  The only reason I can see that stuff like this makes it in is that the NAACP is cherry picking certain votes that will make the right politicians score higher than the wrong ones.  Confirming Hillary Clinton isn’t a civil rights issue, it’s not a race issue, but it is an issue that only Republicans would vote against.  It makes the test an easy A for the Democrats.

The NAACP needs to get back to doing what it should be doing, fighting for equality and civil rights, and giving white people an excuse to use the phrase “colored people.”

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Mr. BL1Y Goes to Washington

Posted in Uncategorized on January 20th, 2010 by bl1y

So, the home (and temporary campaign headquarters) of a US House candidate isn’t exactly Washington.  But, we did have the first meeting of campaign volunteers for the race I’m working on.  Not particularly exciting, just preparing mass mailings for donations, though I think further down the road working on a campaign during a particularly volatile election year should create some hilarious material.

Check back for updates as they develop.

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