1 You ever notice how David Frum wants to create a "big tent" by throwing out conservatives?

2 Bleated?

I'm not sure if that's a typo, or implying Frum is a sheep.

3 Frum is Scum.

4 He basically wants 2 political parties, Democrats and Socialists. David Brooks is Charles Johnson.

5 Maybe Levin can get Frum to come back on his show and debate the constitutionality of ObamaCare.  Not likely though.

6 OK, I'm not proud of this, but is Frum gay?  I thought he was married, but even if he is, I suspect he still is.

7 Frum = Chas. Johnson ?

8 Could you please fix the typos that omit the word "too" in favor of the word "to"? Thanks.

9 Dang, Mr. Pink, you and your fast fingers.

10 The "lib" Constitutional scholar on Hugh Hewitt was asked this same question, and launched into a vapid argument about Congress regulating commerce.  I really wanted to punch him through the radio for this.

11

This is 8th grade civics stuff. I know he's Canadian, but ya'd think that since he is opining on the American political scene with regard to the Constitution that he would have taken the time to actually read it.

Frumpy has become an emabarrassment to the AEI

12

Errr, Medicare is mandated? Since when? The taxes are mandated, sure, but no one is required to apply for Medicare coverage, hence the necessity to APPLY for coverage. Once you APPLY for coverage and are ACCEPTED as a participant, you are required to PAY PREMIUMS in order to keep that coverage. If you do not pay the premiums, the gub'ment doesn't assess a tax penalty or throw you in jail; it simply no longer provides coverage. What is so difficult to understand about that?

This "David Frum" individual appears to not be as smart as he thinks he is.

 

13 Great dissection of a deserving twit.
I guess it no longer shocks me to learn that some "expert" or authority is ignorant of the very basics in his own field. I don't necessarily understand it, but I think it's the new normal.

14

Well done, Drew. 

That's was as bad an ass kicking as the Panthers gave the Giants yesterday.

15 7: actually, Chuckles has quoted from Frum in the past. What a shock

16 Pretty simple, really.  Liberals believe that the constitution is a living document, conservatives don't.  Which camp do you fall in Mr. Frum?

17 10: Erwin Chemorinsky (sp?) is the reason why people hate lawyers. He's a liar and doesn't even believe what he's saying. But he knows if he lies then it'll provide him with an advantage.

18 Frum is an idiot.  But that won't stop the LSM from treating him as their token "conservative", just like his fellow idiot David Brooks.

19

"Are Republicans proposing now to resurrect the constitutional theories of Roger Taney?"

Why would Republicans resurrect the odious theories of a Democrat?

20

Frum is no conservative. He should stop playing like he thinks he is. Or playing like he thinks we think he is.

Thanks for calling him out on the racist stuff too, Drew.

21 Well, Taney was a Democrat......

22 Anyone else find "theory of enumerated powers" funny? Theory? THEORY? Dumb Frum.

23 I have been telling you for years that Frum is not a Republican. In High School, I was the ad hoc chairman of the Ad Hoc Committee To Deport Neil Young. I am hereby organizing the Ad Hoc Committee To Deport David Frum.

24 Anyone else find "theory of enumerated powers" funny?

Probably not as funny as I would if Congress hadn't thrown the whole concept out the window decades before I was born.

25 Note to Frum ....  if you don't have a job (like a fulltime housewife or a fulltime student) you don't pay into Medicare ...  see how that works ... 

26 Is there anything Frum won't lie about? He misrepresents himself (as a conservative), the Constitution, conservative ideas, the bill, and hell, probably his shoe size.

Frum is a plant, a mole, a saboteur, and little else. I wish I remember who it was, but someone else pointed out that he was basically a high-profile concern troll.

27 #21 In Frums and others nutso views Taney was a conservative Democrat so really he was a Republican -just like all those phony Southern Democrats in the 60's. Frums stock and trade at this point is to rip his own party strictly for monetary gain and liberal media approval. He's a whore.

28 If Frum is a Conservative, I don't want to be in the Club anymore.

29

Remember when one of those dead, white males said something about our system of federal government being "a republic, if you can keep it"?

Yeah.  Neither does Frum. 

30 If you were stupid enough to read his book, The Right Man, like I was,

I wasn't that stupid.

31

I decided a while back that if the government demands I buy something, I won't buy it, especially if that something runs so completely counter to my deeply held personal beliefs.

Maybe I'll demand a religious footbath be installed in my jail cell, just to keep the ACLU on their toes.

32 Are the teeny baby-steps taken to help hapless, fragile Moderates figure out the difference between Liberty and Tyranny effectively working?

Or will the last decade spent spinning in insane circles continue throughout the next decade?


Is Frum is any indication of things to come, the Centrist MODERATE  will continue spinning in their insane circle of meaningless tripe.

33 The federal government already requires every American to purchase health insurance. That's what Medicare does.

There many perfectly legal scenarios where people can live their whole lives without ever having paid a dime into the Medicare/Social security system.

34 Don't look for anything intelligent to come out of Frum.

35

ancient theory of enumerated powers

 

This is the common refrain from asshole liberals. Don’t believe what is written in plain language, you must believe what we tell you because we are smart and capable of “nuance” while you arfe all just ignorant savages who need supervision.

 

In case you aren't familiar with the name, Taney was the Chief Justice who wrote the decision in Dred Scott v. Sandford, one of the worst Supreme Court decisions in history.

 

I get so tired of this old chestnut.  In actuality Dred Scott was not a bad decision, certainly not as bad as some of the crap rendered by the court in the days of FDR and LBJ.  Slavery was, in fact, mentioned in the constitution in 3 different places. Taney rendered a decision based solely on what was written in the Constitution and NOT what the “liberals” of the day felt about slavery and its practice.

 

Perhaps those who keep harping on this should do some research on the “peace commission” and the advice given to those members by the Lincoln administration.  This was one of the things that actually led to the civil war.

 

36 Frum was born a Snowback.  He was born in Toronto.

37 Frum is a plant, a mole, a saboteur, and little else. I wish I remember who it was, but someone else pointed out that he was basically a high-profile concern troll.

5th column infiltrator

38

Errr, Medicare is mandated? Since when? The taxes are mandated, sure, but no one is required to apply for Medicare coverage, hence the necessity to APPLY for coverage. Once you APPLY for coverage and are ACCEPTED as a participant, you are required to PAY PREMIUMS in order to keep that coverage.

With such a huge mistake in his writing, I can't even be bothered calling him stupid for everything else he has to say.

39 I, obviously, am a fraking genius.

40 "For a guy who says he wants to lead conservatives, he's pretty quick insult them." Who the fuck voted for Frum to lead anybody?

41 Here comes the bullshit "commerce clause" argument from cretins like Frum. Predictable.

The commerce clause is stretched as far as it can go. It does not give the federal gubmint unlimited power. This is why Supreme Court appointments are so important. Any guess as to how the Wise Latina views the commerce clause (all powerful) or the 10th Amendment (irrelevant)?

Sigh.

42

Who the fuck voted for Frum to lead anybody?

I totally would!!

43 "We start with first principles.  The Constitution creates a Federal Government of enumerated powers."  United States v. Lopez, 514 U.S. 549, 551 (1995).

Wisest thing I ever wrote: I guess according to David Frum, it must've been way back before the Civil War when we struck down the federal Gun-Free School Zones Act as beyond Congress's authority under the Commerce Clause.

44 fucknuts frum might also want to stop calling himself a conservative,because he  clearly is not.

45 This is a fight Frum isn't up for.

He's too busy helping Sullivan investigate Palin's uterus.

46 I agree with Tongueboy -- Medicare is not required. 

You are taxed while you work and receive in return government benefit for Medicare part A (hospital) -- there is no additional premium for this coverage since you paid for it already.

Medicare part B (physician) and part D (prescription) are only given when you apply for it.  You pay a premium for these benefits.  If you fail to apply for either of them when you are eligible nothing happens -- you are however charged an additional amount as a penalty premium when you do eventually sign up for the coverage (this is to discourage you from not paying when you are healthy and only getting coverage when you are sick).   But you are not required to get either of these coverages.

47

Ha ha ha ha ha, yeah.  Ha ha ha.  Yeah, right.  Nice to see ya!  Hi.  Thanks for comin'.

Frum!  Somebody get Frum.  Hey Frummie!  Hey.  Come 'ere.  Hey, yeah.  See those little people runnin' around like they're on fire?  Citizens I think they're called.  Look, here's what we do and this is fun I do it all the time.  Me an Massah.  Grab one or two of 'em and piss right in their ear.  Just put a stream up side their cabbage.  Then ya tell 'em it's rainin' and put them back on the ground!  Right!  I know!  They spend the rest of the day makin' noises an' lookin' up in the sky!

Ha ha ha ha!  Try it.  I'll hold one and you pee on its head.  Go on.

What?  Don't be shy about showin' your pecker.  We see it all the time.  Go for it!

Ha ha ha ha ha ha!

48 When I saw this, I was sort of amused, because it's like Frum is completely ignorant of the really long, ass kicking takedown by Richard Epstein of the Constitutionality of BarryCare from a takings and regulatory angle.If y'all haven't read it, it's worth a perusal:

http://tinyurl.com/yklabb8

Canadian v. Epstein on Constitutional issues. Hrm. Which one to choose, which one to choose.

49

For those who don't know, David Frum is the progeny of Barbara Frum. She was a popular TV personality on the Canadian Broadcasting Corp, (CBC) the main broadcast network in the great white north and hugely leftist in its inclinations.

Babs sent David out to get the best education possible, and once he had that under his belt, he set about to tell the rest of us how life worked. After all, he read all about it in some books. Apparently, no one thought to tell David that it might be a good idea to actually go out and live a little life and maybe accomplish something himself before lecturing others.

50 Frum is not a natal American so his understanding of things American may well be skewed. 

Much like our President.

51

Frum is pathetic.

 

52

Perhaps those who keep harping on this should do some research on the “peace commission” and the advice given to those members by the Lincoln administration.  This was one of the things that actually led to the civil war.

BS. The Civil War (well, secession) started before Lincoln took office; there was no "Lincoln administration" in existence to give advice to any body.

53 "In actuality Dred Scott was not a bad decision ...  Taney rendered a decision based solely on what was written in the Constitution..."

Oh, please.  Dred Scott was an outrageously activist pro-slavery anti-federalist decision, and an act of judicial usurpation at the expense of Congress: it first essentially said slavery had to exist everywhere in the country, no matter what the free states wanted, and had to exist in all federal territories even if Congress didn't want it to.

It also said free blacks couldn't be citizens even of the states that chose to make them citizens, and had to be presumed non-citizens even in the absence of any language depriving them of such, and were not therefore capable of invoking the diversity jurisdiction of the federal courts.  The idea that all that is just the necessary and logical result of a strict application of the text or even of the Framers' intent is beyond ludicrous.

"When it comes to arbiters of conservative legal traditions and theories, I'll go with Scalia over Frum every time."

I'll go with Scalia over Taney, too.

54

You guys on the other side of the aisle are wrong, wrong, wrong. 

*hic*

You know, drinking beer in Montana is not really drinking. I know, I was there.

*hic*

Where's the courage? Where's the courage? That's why I like to do jello shooters off of Melodee's luscious tatas.

*hic*

55 Frum wants power and a seat at the table. It's obvious he will go quite far in political ideology in search off that.

56 Drew, excellent takedown.  If Obamacare should pass I eagerly await its challenge in court.

57

You deniars should really do some real research and stop relying on liberal history books and the History channel.

 

58 I'm thinking back more than twenty years here so my memory might be spotty, but back when I was in J school we learned about something in the Constitution, in the part that's especially relevant and dear to journalists, about "redress of grievances" or some fool thing. Help?

59 Heh - none of the 6 (!) comments on Frum's article have anything positive to say about it

60

NEWS FLASH.

All LIBTARDS are LIARS.   Dishonesty is a prerequisite of being a libtard.

61 he idea of restraining the government based on a limited powers argument is an anachronism.

I call BS.  Perhaps the idea of the government being aware of its own limitations is anachronistic, but idea of restraining government based on its limited powers is never out of place.  If one dismisses the Constitution's limited powers concepts, what of its original intent remains?  Why even bother respecting the functions of each branch of government - they're enumerated and limited, too?  Dismissing the limited powers argument renders checks and balances and, basically, the whole rest of the document meaningless.

62 I get so tired of this old chestnut.  In actuality Dred Scott was not a bad decision, certainly not as bad as some of the crap rendered by the court in the days of FDR and LBJ.  Slavery was, in fact, mentioned in the constitution in 3 different places. Taney rendered a decision based solely on what was written in the Constitution and NOT what the “liberals” of the day felt about slavery and its practice.

Vic,

Dred Scott, aside for the morality of slavery, is a horrible decision. It reflects a massive expansion of judicial authority into the political realm. Taney simply overrode the 35 year old Missouri Compromise and clearly Congress has the absolute authority to lay down the condidtions under which states may be addmited to the union. He simply tossed that in, unbidden in a decision in a case he had earlier ruled the Court had no jurisdiction to hear.

Scott is every bit the moral and legal equivalent of Roe v. Wade.

You simply can not find anyone, left or right, willing to defend the decision on the merits.

Seriously, please do a little more reading on it. Defending Taney is not some place anyone wants to be for moral and intellectual reasons.

63 Frum is a liberal who claims some special standing to lecture conservatives, based on his brief work for the Bush Administration and National Review.

The Bush credentials carry no cred with conservatives; there were so many boobs and libs affiliated with that WH. What about National Review?  Christo Buckley.  nuff said.

64

I get so tired of this old chestnut.  In actuality Dred Scott was not a bad decision, certainly not as bad as some of the crap rendered by the court in the days of FDR and LBJ.  Slavery was, in fact, mentioned in the constitution in 3 different places. Taney rendered a decision based solely on what was written in the Constitution and NOT what the “liberals” of the day felt about slavery and its practice.

Actually, by judicially overturning the settled Compromises of 1820 and 1850 which had kept the peace, Taney undertook judicial activism that would have made the Warren Court proud.

 

65

Seriously, please do a little more reading on it. Defending Taney is not some place anyone wants to be for moral and intellectual reasons.

I make no defense of Taney on moral principles. Slavery was an abomination and has created massive problems in this country aside from the 600 thousand deaths in the Civil War.  

That being said, at the time in question, slavery was a recognized institution and it was created long before the United States was a country. Slaves were considered property and the Dred Scott decision simply recognized that fact AND the fact that the Constitution REQUIRED all the States to return said property to the rightful owners.

We should not be in the business of applying 21^st century thought and ideals to the decisions that were made in 1861.

As to the “little more reading” I have done extensive study on this issue.  I would recommend that you do a “little more reading” and keep an open mind on the issue instead of 21^st century PC.

 

66 Perhaps the idea of the government being aware of its own limitations is anachronistic, but idea of restraining government based on its limited powers is never out of place.
Posted by: Jazz at December 28, 2009 12:07 PM (hnq5i)

I probably could have been clearer but I was talking about it in terms of the general population. The theory is sound in reason and practice. I only meant it was anachronistic in the popular mind. Clearly, we should fight to restore it to its rightful place.

67 We should not be in the business of applying 21^st century thought and ideals to the decisions that were made in 1861.
Posted by: Vic at December 28, 2009 12:27 PM (QrA9E)

Spare me the PC crap. Calling bullshit exactly what it is isn't PC.

The decision was roundly derided at the time it was issued.

I guess PC goes back further than we thought. Who knew?

68 Vic, Taney at the outset held that the Court had no jurisdiction (because he determined Dred Scott could not be a citizen, and therefore could not invoke the jurisdiction of the federal courts based diversity of state citizenship), yet he then spent pages and pages making further sua sponte rulings on a series of questions that in some case none of the parties had ever even raised, let alone preserved for appeal.  How in any universe is that not activism?

69

That being said, at the time in question, slavery was a recognized institution and it was created long before the United States was a country. Slaves were considered property and the Dred Scott decision simply recognized that fact AND the fact that the Constitution REQUIRED all the States to return said property to the rightful owners.

If Taney had just stated that and left it there, that would have been legally fine. But he went further and ruled that Congress didn't actually have the power to establish territories and set parameters for statehood the way the Constitution originally said Congress did.

It also said free blacks couldn't be citizens even of the states that chose to make them citizens, and had to be presumed non-citizens even in the absence of any language depriving them of such. If that isn't stomping all over the 9th and 10th amendments what is?

We should not be in the business of applying 21^st century thought and ideals to the decisions that were made in 1861.

Absolutely correct. However, Lincoln was already ripping Douglas over this one back in 1858.

70

Look folks, my comment wasn't tht Dred Scott was a model of judicial rulings. It was that it was not the all fired "worst ruling in the history of the court" ruling.

Yes, there were some bad statements in Dred Scott but in muy opinion it was far from the worst ruling ever.

The fact is that slaves werre considered property and Dred Scott simply recognized that fact.

71

A nice article about a not very nice person.  I cannot add anything new to the discussion but, my "feathers" have been ruffled by the misuse of "reign."

Spell Check is the enemy of all writers who were not the beneficiaries of a good Sixth Grade education in the 1940s and 1950s.  Three words in particular are giving present day commenters a lot of trouble.

They are : rain, rein and reign.

Rain is that wet stuff that falls mainly on the plain in Spain.

Rein comes from the "horsey set" where it is used to discribe the method one uses to control the horse. To slow or stop the horse, you rein in - pull the reins. To encourage the horse to go faster, you loosen the rein. To steer, you pull on the rein in the direction you wish to go. This is the word to use when you want to "rein" in government.

Finally, we have the often misused "reign." Queen Elizabeth II reigns as the British monarch. 

Nuff said!

 

72

Fair enough Vic. My personal Worst Court Decision Ever was Reynolds vs. Sims (1964) which:

1. destroyed county representation within states and set state governments on the path to mobocracy.

2. further destroyed federalism

3. established a bogus principle of "one person one vote." Sorry, we have a Senate and an Electoral "College" for a reason.

4.destroyed county soverignty within states and effectively made county boundaries meaningless

73 "The fact is that slaves werre considered property and Dred Scott simply recognized that fact."

They weren't considered property in the free states because slavery had been abolished.  If a slaveowner took his slave into a free state, Dred Scott said the state had to treat the slave as property despite its own prior sovereign legislative choice to eliminate the institution, effectively meaning that slavery had to exist everywhere in the country.

Moreover, regardless of that, as has repeatedly said on here, Dred Scott also ruled that FREE blacks could never be citizens, whether a state chose to make them citizens or not.  This was something Taney just made up of thin air, based on no legal authority whatsoever.

74 Yes, there were some bad statements in Dred Scott but in muy opinion it was far from the worst ruling ever.
Posted by: Vic at December 28, 2009 12:46 PM (QrA9E)

Rule of holes dude...stop digging.

Dred Scott is on anyone's list of 5 worst Supreme Court cases in history.

Given the utter contempt it is held in, it would probably score as the worst ever in a vote simply because unlike Roe or Lawrence people on the  left and right agree how bad it is.

The fact is that slaves werre considered property and Dred Scott simply recognized that fact.

Yes and the fact is property can be taken by the state after due process, which was part of the point of the legislation in the Missouri Compromise..you couldn't take slaves in to free federal territories, if you did they were forfeited. Same kind of thing happens to property used in crimes everyday in the US.

Do you even realize you are defending a case at the heart of two things conservatives usually hate..Substantive Due Process and judicial activism?

Seriously man, stop digging.

75

Vic, Drew and everybody else (you too, Gabe!) here's a discussion thread. What are the worst Supreme Court decisions and why. I already nominated Reynolds v. Sims, and we already know about Dred Scott and Roe. Have at it--let's push this thread over the 200 comment mark.

76 "4.destroyed county soverignty within states and effectively made county boundaries meaningless"

I agree it's a bad decision, but counties have never been sovereign.  Cities and counties are and always have been creatures of state law, even if that state law may in part be the state constitution.

77

I would be hard pressed to come up with the "worst" ruling ever as there have been plenty of "worst rulings".

I would have to start with the original worst ruling which started the entire ball rolling....Marbury v Madison.

This was a "contived case" designed to give the federal government power that was not stated in the Constition.

78

I agree it's a bad decision, but counties have never been sovereign.  Cities and counties are and always have been creatures of state law, even if that state law may in part be the state constitution.

Point taken. Nevertheless, for the Warren Court to decide state legislatures couldn't have an upper house that mimicked the US Senate and to effectively trample on state constitutions is to me a new low.

79 What are the worst Supreme Court decisions and why.
Curmudgeon,

Off the top of my head in no order (and I've already nominated Lawrence v. Texas)...

Plessy v. Ferguson (long over turned but awful)

Grutter v. Bollinger (with a nod to it's parent Bakke) Sure Affirmative Action is unconstitutional but it's kind of nice and we might not need in 25 years so let's talk about it then. O'Connor at her worst and her worst is pretty damn bad.

Kennedy v. Lousianna The 8th Amendment is whatever Anthony Kennedy says it is.

Gonzalez v. Raich  Nino! I know it was you. You broke my heart!

Hamdan v. Rummsfeld  Lawfare for everyone!

Romer v. Evans Thought crimes for everyone! Thanks Tony!

Sadly, there's moe but that's my hit list.

80 Oh, how could I have forgotten:

Miranda v. Arizona Citizens aren't responsible for knowing their rights, they are children who must be told.

Gideon v. Wainright Nice idea but nowhere to be found in the Constitution

81 Kelo rings a bell.....

82

Gideon v. Wainright Nice idea but nowhere to be found in the Constitution

And the *original* "lawfare for everyone"

83 he idea of restraining the government based on a limited powers argument is an anachronism.

I call BS. Perhaps the idea of the government being aware of its own limitations is anachronistic, but idea of restraining government based on its limited powers is never out of place. If one dismisses the Constitution's limited powers concepts, what of its original intent remains? Why even bother respecting the functions of each branch of government - they're enumerated and limited, too? Dismissing the limited powers argument renders checks and balances and, basically, the whole rest of the document meaningless.

Posted by: Jazz at December 28, 2009 12:07 PM (hnq5i)

Exactly. In fact, without "limited powers" the entire exercise in having and defending a Constitution is rendered meaningless. We revert to a situation where the powerful grant us our rights, and can also take them away.

84

Off the top of my head in no order (and I've already nominated Lawrence v. Texas)...

BTW, Scalia's dissent there is an absolute delight to read. He effectively asks the majority if the dolts actually understand what stare decisis means or not.

85

Kennedy v. Lousianna The 8th Amendment is whatever Anthony Kennedy says it is. Romer v. Evans Thought crimes for everyone! Thanks Tony!

The douchetool is sadly a product of University of the Pacific McGeorge School of Law, which is actually a decent institution in most respects.

 

86 BTW, Scalia's dissent there is an absolute delight to read.

I like Scalia in the majority because that means the case has been decided correctly (well usually, see my Raich nomination) but Scalia in dissent? Oh that's just Grade A legal nerd porn.

87 "In fact, without "limited powers" the entire exercise in having and defending a Constitution is rendered meaningless. We revert to a situation where the powerful grant us our rights, and can also take them away."

Well, I agree with the gist of what you're saying, but I wouldn't necessarily go that far.  The FEDERAL constitution is a limited grant of power: the federal government must find authority in it for every act it takes. 

By contrast, conversely, the state constitutions are restrictions on inherent power: the states, as the actual successors to the unlimited sovereignty of the British parliament, may do anything they are not forbidden from doing.  A written constitution and enumerated powers are not necessarily coterminous concepts.

88 the states, as the actual successors to the unlimited sovereignty of the British parliament, may do anything they are not forbidden from doing.Posted by: Dave J. at December 28, 2009 01:32 PM (Pw+Zz)

This is admittedly bordering on the theological at this point but the successors of British sovereignty was and is, the people.

State constitutions are similarly grants of power by the people to that form of government.

State governments are sovereign over the federal government (or should be) only because they acted on behalf of the ultimate sovereign, from which their (the states) sovereignty is derived.

89 Great post and all, but maybe you could've edited that post a teensy bit? It really distracts from your points when you've written nonsense like "You'd think someone is a smart as Frum thinks he is" and "just stop the lasted incursion", among other things.

90

I like Scalia in the majority because that means the case has been decided correctly (well usually, see my Raich nomination) but Scalia in dissent? Oh that's just Grade A legal nerd porn.

Better than that, he writes in a way that any reasonably educated non-lawyer can understand. Actual reasoning, with witty barbs.

91 Posted by: mac at December 28, 2009 01:40 PM (5S3cq)

Sorry.

I went back and thought I caught those. Sometimes when you make more than one edit the blog software doesn't save all the corrections.

92

Gonzalez v. Raich  Nino! I know it was you. You broke my heart!

I too give him a huge down check for that case, however, I really did not have much choice if he didn't want to kill all the federal drug laws, as well as roll back ALL the interstate commerce related rulings since FDR.

93 Drew, I agree this is like debating how many angels can dance on the head of a pin, but in the absence of a state constitution, would a state have no power?  Would the state government not exist or possess legal personality at all?  It's not exactly clear whether Connecticut had one between independence and 1818: it continued to operate under the Fundamental Orders adopted by the colony when it was created by breaking away from Massachusetts in the 1630's.

94

Who the fuck voted for Frum to lead anybody?

I totally would!!

Me too! Number One Fanboy here!

95 By contrast, conversely, the state constitutions are restrictions on inherent power: the states, as the actual successors to the unlimited sovereignty of the British parliament, may do anything they are not forbidden from doing. A written constitution and enumerated powers are not necessarily coterminous concepts.

Posted by: Dave J. at December 28, 2009 01:32 PM (Pw+Zz)

I agree with the bit on states. In fact, I understand (and must accept) that any of the states can institute their own tyrannies. I count on the "marketplace for state-of-residence" and the marketplace for locating businesses to act in concert as a heavy damper on such activity. The flight of residents and businesses from Cowlyfornia is instructive here.

I would hope the right-of-passage aspect of our federal arrangement cound not be abrogated by states' constitutions (or law). I count on that being the case in my understanding of why the founders were more brilliant than most give them credit. Am I wrong here?

96 "In fact, I understand (and must accept) that any of the states can institute their own tyrannies."

I would disagree with that.  While the federal constitution is a delegation of limited and enumerated powers from the states to the federal government, the states agreed to be bound by it and for it to be supreme within its legitimate delegated spehere of authority.  The federal constitution requires the federal government to guarantee each state a "republican form of government."  While this has been held to be a non-justiciable political question, it obviously has to mean something.

97 He seems to be of the opinion that for conservatives to succeed we need to surrender to an ever expanding government. Maybe we can move it a bit to the right as it grows but never stop it.

This is the heart and soul of what a neo-conservative is.

98 I would disagree with that. While the federal constitution is a delegation of limited and enumerated powers from the states to the federal government, the states agreed to be bound by it and for it to be supreme within its legitimate delegated spehere of authority. The federal constitution requires the federal government to guarantee each state a "republican form of government." While this has been held to be a non-justiciable political question, it obviously has to mean something.

Posted by: Dave J. at December 28, 2009 02:25 PM (Pw+Zz)

But that can be read as "providing a republican framework within which they exist." That's how I always took the meaning. So if a state declares that tobacco products are not legal within its borders (or radar detectors or fireworks) the feds are required to look the other way. It's a short hop to even more restrictions on individual liberty within a state, without falling foul of the federal Constitution.

99 but in the absence of a state constitution, would a state have no power?
Posted by: Dave J. at December 28, 2009 02:05 PM (Pw+Zz)

Short answer...I have no idea.

Longer answer...there powers would like have devolved from the previous entity. I seem to recall something about successor states from my undergrad years but I don't remember the whole thing.

I would argue the bigger issue is that 'power' and 'sovereignty' (the original term you used) are not the same, at least in a conceptual sense.

So I guess states would have powers in lieu of a constitution but only because the people acceded to them.

100 K~Bob, I don't think we're really all that far apart on this.  However, this question also runs up the question of what provisions of the Bill of Rights are now binding on the states: modern selective incorporation doctrine through the Due Process Clause of the 14th Amendment strikes me as questionable at best, but the argument for incorporation through the Privileges & Immunities Clause--which the Court made a dead letter in the Slaughterhouse Cases--which the petitioners in the Chicago gun case made in their brief strike me as very convincing.  The Framers of the 14th Amendment DID intend for what they were doing to be a major change: as the brief notes, everyone including their opponents recognized this.

101 What ever happened to old "Christo"?

102 Dave: "K~Bob, I don't think we're really all that far apart on this."

K~Bob: "Sorry, I came here for a quibble."

Dave: "Oh.  You want room 12b, this is 12c, 'argument based on assumed major differences.'"

K~Bob: "That's not really very different from quibbling."

Dave: "Now you're quibbling.  I get time and a half for substituting for other service providers in this facility.

K~Bob: "Time and a half? You must be joking!"

Dave: "Room 2. Good day."

103 BTW, I'm posting from a different computer, so the hash is different, but it's still me.

104 Way late to this thread, but I'd have to nominate Casey vs. Planned Parenthood as the worst decision in the Court's history.  Not only was the actual decision bad, but it contains the most tortured and just plain stupid logic in the plurality opinion handed down by O'Connor, Kennedy, and Souter. 

Another really bad one is Wickard v. Fliburn, as it opened the floodgates to Congressional interference in every facet of life based on a tenuous (at best) interpretation of the commerce clause.

105 Let's not forget that the Democrats' powerlust argues against the constitutionality of their own bill. On the one hand they argue that they have the constitutional authority to regulate health care because of the interstate commerce clause while they simultaneously prevent Americans from buying insurance across state lines.

Interstate commerce that isn't interstate?

Oh yeah, Frum is a major league a**hat.

106 That was the end of David Frum's credibility. Forever. Yes, it was based on a slender reed. Now, though, he is done. What a bag of tools he is.

107 Please start referring to the subject in question as "Dick Head". That way, if he wants to get any credit SEOwise or notoriety in general from his asinine comments, he will have to accept the pen name of Dick Head! Based on his photo, the shoe fits!

108 From US vs Lopez, in the ancient and hoary days of 1995: "We start with first principles. The Constitution creates a Federal Government of enumerated powers. See U.S. Const., Art. I, 8. As James Madison wrote, "he powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite." This constitutionally mandated division of authority "was adopted by the Framers to ensure protection of our fundamental liberties." Just as the separation and independence of the coordinate branches of the Federal Government serves to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front." --Chief Justice Rehnquist, writing for the majority

109 Frum is an Uber Schmuck.

110 I'm with Ace on not reading people out of the conservative movement for light or transient reasons, but, honestly, if a purported conservative can't agree that the constitution creates a government of limited powers, and delegates the rest to the states, he's no conservative.

111 What else is Frum going to say? He's become entirely predictable. I just look forward to the day we all ignore his latest pseudo-erudite bleatings.

112

 What 's a frum? Is it a fruity rum drink?

No one serious pays attention to him. Which is bad news for him because he is now in the attention getting business. . .

113 I say, this Frum chap is certainly giving teh gehy Canadian onanists a bad name!

114 Frum is a great constitutional scholar as well as a quasi neo con, rino, tool bag!

115

Excellent piece on the unconstitutional nature of Obamacare.  David Frum is an ass-kissing RINO and wants to raise the white flag before the battle's even fought.  What a big p***y.

 

FRUM, YOU SUCK LIBERAL BALLS.

116

P.S. - Ace, please continue to beat up some more on Frum.  He deserves it, the scumball.

117 Typical Neo-Liberal

118 David Scum is just a concern troll now. He became a leftist a while back, but hasn't admitted it yet, unlike CJ.

119 frum is not frum!

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