George Washington vs. Ken Cuccinelli

Kind of a weak argument (0.00 / 0)

The Militia Act (in effect from 1792-1903) provided for the authority of the President to call out the militias of the states whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe. Kind of like what we have today with our Military.

The Militia Act, which superseded the several states Militia Acts is not unconstitutional. In Article I, Section 8 of the Constitution it states:

"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;"

And so, you would rather the Militia NOT have any guns with which to defend itself?

Now, where in the Constituion does it state that every person MUST buy health insurance Lowell? Where in the Constitution does it give the Federal Govt the power to regulate health care? Answer? Neither are in there.

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by: LeeHinAlexandria @ Wed Mar 24, 2010 at 10:54:21 AM UTC

Maybe it is, but... (3.00 / 2)

There are better arguments. Like this one:
The government has been forcing you to "buy" FICA and Social Security for almost 50 years. They take it right out of your paycheck, and it's not optional. Now I'm not saying those are Constitutional, but they haven't been successfully challenged, and our legal system is based on precedent. So you do the math.

Cuccinelli and the other AG's are grandstanding. If they weren't, they would have actually cited case law in their lawsuit.

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by: Dave @ Wed Mar 24, 2010 at 11:19:17 AM UTC

[ Parent ]

From TPM: (0.00 / 0)

The Democratic push-back against the GOP-led bid to challenge the constitutionality of health-care reform is gaining steam.

Virginia Democrats announced today that they've filed a Freedom of Information Act request with Attorney General Ken Cuccinelli, seeking information on the amount of taxpayer money being spent on the lawsuit Cuccinelli filed yesterday, reports the Richmond Times-Dispatch.

Cuccinelli declined to join a lawsuit filed by 13 other AGs yesterday, seeking to have the health-care reform bill declared unconstitutional. Instead, he filed his own similar suit.

At a press conference, State Sen. Doald McEachin accused the AG of pushing "a right wing agenda" with the approval of Gov. Bob McDonnell, and blasted Cuccinelli for devoting time to a suit that is"doomed to fail." We gave our own detailed assessment of the lawsuit's (slim) chances of success here.

In their request, the Democrats asked for information not just on the lawsuit's cost, but also on any co-ordination between Cuccinelli's office and the other AGs, or national conservative groups. They also want Cuccinelli's full schedule since taking office.

The news comes as McDonnell prepares this afternoon to sign a bill that prohibits Virginians from having to buy health insurance. Because it directly conflicts with the mandate in the federal law, the state legislation is almost certainly unconstitutional.

The U.S. Justice Department has said that it will "vigorously defend" the constitutionality of the health-care reform law.

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by: TomPaine @ Wed Mar 24, 2010 at 20:07:04 PM UTC

[ Parent ]

Conservative legal jurisprudence is a joke (0.00 / 0)

Let's be clear about this: This is 100% an ennumerated power of Congress, to tax and spend for the general welfare.

Don't believe me, conservatives?

Article I, Section VIII, Clause I of the US Constitution:

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

That is the FIRST enumerated power, before the dreaded Commerce clause (which also, on its own, gives Congress the power to regulate exchanges and the myriad abuses of the insurance industry, which they have ALREADY given anti-trust protection to). If someone doesn't wish to have health insurance, then they pay a tax, which Congress is given plenary power to legislate. The proceeds are then used to spend on the program.

I am not, however, convinced that the reactionary activist Supreme Court will do the right thing.  

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by: Ron @ Wed Mar 24, 2010 at 14:52:37 PM UTC

General Welfare Clause Is Not a Valid Argument (0.00 / 0)

In the preamble of the Constitution, it states that they are establishing the Constitution to 'promote the general welfare.' Later, in Article I Section 8, it states:

'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;'

The clause is about protecting the United States by providing for the defense of the US. In doing so, that protects the general welfare.

So this argument about general welfare does not fly and should not fly in a normal court of law.  

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by: LeeHinAlexandria @ Wed Mar 24, 2010 at 15:01:02 PM UTC

[ Parent ]

Lee is a professional conservative scold (4.00 / 1)

who has a lot of ideas but little real facts to back up his misguided RNC talking point allegations, so he just hurls names at people with whom he disagrees. He builds his arguments around alleged constitutional principles that he neither understands (aside from repeating standard GOP rants) and alleged historical facts that exist
only in his own fevered mind. Democrats can do no right and Republicans can do no wrong!

Lee has no idea that the famous Republican Chief Justice, John Marshall, the most famous activist judge in American history established judicial review (Marbury v Madison) and not mentioned in either the constitution or the Federalist Papers; created the first broad construction of the commerce clause of the constitution (McCullough v Maryland) which Cooch cherry-picks to cite in his recent legal brief. Amusing to say the least, but a dicta that is the only log Cooch has to float on!

Lee is, like his teabagger friends, about "protecting the United States by providing for the defense of the US.
In doing so, that protects the general welfare."

Lee lacks even a basic knowledge of legislative construction and interpretation as depicted in the quote above. Even basic English sentence construction demonstrates that the two subjects (defense and general welfare) are separate and independent subjects.

Lee needs to go back to the 18th century (where his mind is) and read a little political philospohy beyond Thomas Hobbes!

 

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by: TomPaine @ Wed Mar 24, 2010 at 17:25:03 PM UTC

[ Parent ]

Actually (0.00 / 0)

I think a truly strict interpretation of the Constitution would find no mention of Judicial Review.  Thus, no way that the Supreme Court can overule any law the Congress passes and the President signs.

Right?

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by: NotJohnSMosby @ Wed Mar 24, 2010 at 18:22:18 PM UTC

[ Parent ]

Right! (0.00 / 0)

But consistency of belief is not a virtue among Republicans or Teabaggers from Alexabndria.

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by: TomPaine @ Wed Mar 24, 2010 at 19:17:47 PM UTC

[ Parent ]

I've always been amazed (0.00 / 0)

That the "strict constructionists" actually use the biggest act of unconstitutional judicial activism ever invoked - Judicial Review - to justify their claims that judicial activism is unconstitutional.  It's somewhere between hypocracy and circular logic on the "what the fuck" scale.

LeeH and the other Republicant armchair constituational lawyers who have come out of the woodwork the last few days - who determines what is and isn't constitutional?  The US Constitution does not define nor assign an arbitor.  There is no Star Chamber that is the final say of what is or isn't constitutional.  The Supreme Court effectively created it out of thin air.

You can argue "the Founders intended judicial review, some colonies had it in their constitutions, there were notes, it was discusses at the Convention" so on and so forth.  But, there is no place in Article III or in any Amendment that empowers the Supreme Court to judge what is or isn't constitutional.

Personally, I think judicial review is fine, but I'm not a strict constructionist like the Republicants.  Then again, neither are they, although they claim to be.  

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by: NotJohnSMosby @ Wed Mar 24, 2010 at 20:39:14 PM UTC

[ Parent ]

Actually, Lee... (0.00 / 0)

It's my understanding that it is exactly that part of that clause that, to date, is considered the Constitutional basis for Medicare. You can't just make up legal arguments "because you said so."

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by: Dave @ Wed Mar 24, 2010 at 20:00:24 PM UTC

[ Parent ]

So-called states' rights (4.00 / 1)

arguments are at the core of most rants from Tea Party members and like-minded self-described conservatives. The merits of those arguments (which, when you dig into the actual crafting of the Constitution, revolved around protecting the "peculiar institution" of the Southern States, i.e., slavery, in order to induce those states to join the federal union) were settled by the long-past unpleasantness between the North and the South mid-19th century.

The tension and the arguments are never going to go away, but the definitive answer to the basic question was made at Appomattox over 130 years ago. The federal Union is dominant---- but the tension remains, mitigated by the federal nature of the union.

The beauties of the American Constitution are manifold, and two of these are 1) its federal nature and 2) its bare bones, mission-type statements providing a framework for governing which permitted orderly growth geographically and non-violent change politically to meet the new conditions resulting, without freezing change and growth into a straight-jacket of details. Such flexibility on such a firm framework is why our system has survived the rapid changes of modern life, IMO, unlike most countries which cycle giddily through one political form after another.  

Pretending to be a "strict constructionist" that knows precisely what "Founding Fathers" meant by every phrase of the Constitution and demanding that your interpretation is the only one allowed, and that your interpretation must be rigidly followed negates that very flexibility. This mindset reminds me of those self-appointed Bible police who decide certain parts of the Bible (their choice), are literally true and absolutely must be included in public education. Or the anti-contraception true believers who object to family planning because god won't send you more children than you can afford. And so on. Medieval.

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by: Teddy Goodson @ Wed Mar 24, 2010 at 15:00:50 PM UTC

I think that Lee is now sitting in the corner somewhere in Alexandria sulking (0.00 / 0)

and angry that his most cherished constitutional principles that he learned at the hand of the Byrd Machine are non-operative; but tomorrow is another day when he Lee) can travel West to Berryville and genuflect at the gravesite of Harry S. Byrd and hope that Harry's ghost can inspire him (Lee) with more useful constitutional principles.

I wqould suggest that Lee also travel to the gravesite of Howard Smith for further inspiration where he can ask Hward how he got defeated by George Rawlings!

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by: TomPaine @ Thu Mar 25, 2010 at 00:44:33 AM UTC

[ Parent ]

Cooch Can't Read (0.00 / 0)

Poor Cooch. As Senator Ron Wyden points out, Cooch's latest legal splash (challenging the individual mandate in the health care law) is just as badly flawed as Cooch's "advice" to Virginia's colleges and universities to cancel their non-discrimination policies based on sexual orientation. What's his next windmill to tilt at?

http://www.huffingtonpost.com/...

Sen. Ron Wyden (D-Ore.) has a message for all the attorneys general and Republican lawmakers who are threatening lawsuits and claiming that an individual mandate for insurance coverage is unconstitutional: You don't have to abide by it -- just set up your own plan.
The Oregon Democrat isn't inviting opponents to defy the newly-enacted health care law. Instead, he's pointing out a provision in the bill that makes moot the argument over the legality of the individual mandate.  

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by: Peter 2010 @ Wed Mar 24, 2010 at 18:50:26 PM UTC