There are two propositions. The first collectivist, the second individualist. Both are functions of various forms of governance, but neither are a function of civilization. A purely anarcho-capitalist society will be civilized if the inhabitants respect natural or even common law. See the voluminous writings by O’Driscoll, Bastiat, Block, etc. about how spontaneous order naturally emerges. Governments, like those of Pol Pot’s Cambodia, Mao’s China, Stallin’s USSR, and Hitler’s murderous German government each have very high levels of bureaucracy, regulation, restriction, and repression yet are utterly uncivilized.

Could you further explain dichotomy you propose? The two propositions don’t seem to relate to civilization as it relates to how a monopoly of force in a geographic area creates order.

@soccerdadforlife - History as the conquest of one civilization by another is only small fragment of history fretted over by obsessive pessimists and extends beyond the hubris of political leaders and their pushy bureaucracies. History records the life of our ancestors in war and peace. It records who they love. It is the record of what and how they produced and satisfied their fellow man. It is the story of all of the life mankind has lived. Since most of the history of mankind revolves around not killing each-other, it is clear that history is how civilizations got along with other civilizations. There is so much more to life than the miserable, “if it bleeds it leads” mentality.

@soccerdadforlife - Your point?

@tychecat - In you opinion. Article 1 Section 8 of the Constitution allows 18 small enumerated powers. Recognize that it is your *opinion* that this article gives, “broad legislative powers.” Article One does not give the legislature the right to violate the natural rights of citizens like those in the repellant and ironically named Patriot Act. When the legislature steps out of its very narrow legitimate bounds, legislators supporting these laws are usurping the Constitution and acting in a treasonous manner.

The 14th amendment does not ratify the supremacy of federal law. That is Article VI, and could only have been ratified if the Bill of Rights were included addressing the concerns of the Anti-federalists. We should also remember that it is explicit that only laws which are written in the spirit of the Constitution are legitimate. Nearly all of the illegitimate power which has evolved to the federal government are the offspring of power invented by Lincoln or later during the progressive era. These come from a systematic attack on states or human rights, and are morally unjust. You will also remember that among the Bill of Rights are the 9th and 10th Amendments which clearly and strictly limit federal power. Again, if these guarantees weren’t included in the Constitution, it would not have been ratified.

Perhaps I’ve misread you your writing, but the role you assert of the Supreme Court sitting in judgement over cases which limit the Bill of Rights is misleading. The role of the Supreme Court was to settle matters where inferior courts ruled inconsistently and deal with some procedural issues. It was only in 1803 that the Supreme Court claimed judicial review and is hostile to the court’s legitimate purpose.
Posted 1/20/2013 9:52 PM by virtus1 – delete – recommend – reply

@tychecat - Article One Section 8 is very clearly a limited list of power despite your authoritarian opinion.

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;

2: To borrow Money on the credit of the United States;

3: To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

4: To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

5: To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

6: To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

7: To establish Post Offices and post Roads;

8: To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

9: To constitute Tribunals inferior to the supreme Court;

10: To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

11: To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

12: To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

13: To provide and maintain a Navy;

14: To make Rules for the Government and Regulation of the land and naval Forces;

15: To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

16: 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;

17: To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;–And

18: To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

So this brings us to the Necessary and Proper Clause which was limited by the Bill of Rights especially including the 9th and 10th Amendments.

A person who completely ignores the role of the Anti-federalists (and apparently the entire history of Western liberal thought) will naturally be willing to pervert the elastic clause to suit his lust for politicians with unlimited dictatorial power. Wouldn’t you? Humm? James Monroe agrees with my concern that people like you love authoritarianism so much you will make law where none is allowed. Monroe wasn’t the only one. Brutis, Old Whig, and many others agree with Monroe. That is why the power of Congress is limited in the Bill of Rights and why attempts to misconstrue the Necessary and Proper Clause were mentioned in nearly all of the state constitutional conventions.

The whole clause says that Congress has power to make laws which are necessary to “Execute the foregoing powers” in other words the previous 17 powers. Those other 17 powers are strictly limited and have very little latitude to their scope. One can hope you treated your students with more fairness than you treat Socrates Cafe readers.

Since claim to be historian, you will remember that a clause similar to your vision of the elastic clause presented by Gunning Bedford and another by Alexander Hamilton which (paraphrased) gives congress the power to pass whatever they want. These were so outlandish that they were rejected without serious attention given to them. Strike one against your claim.

Why was the constitution written if on one hand powers were strictly limited and on the other there is unlimited power? The weight of the evidence is that the power of the federal government is limited. The Ninth Amendment instructs that, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” So much for the Necessary and Proper Clause. The Tenth Amendment commands that, “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.” So much for your Patriot Act or ill-considered green legislation that tells people how hot their hot water can be or how much water should be allowed to leave a privately owned shower head. Only a dunderhead could consider this constitutional.

Let’s recall the words of A. Hamilton who was the person who argued for the most expansive interpretation of what you call the elastic clause, and I call the Necessary and Proper Clause. “It may be affirmed with perfect confidence that the constitutional operation of the intended government would be precisely the same, if these clauses were entirely obliterated, as if they were repeated in every article. They are only declaratory of a truth which would have resulted by necessary and unavoidable implication from the very act of constituting a federal government, and vesting it with certain specified powers.” Strike two.

George Nicholas argued during ratification, “[The Necessary and Proper Clause] only enables them to carry into execution the powers given to them, but gives them no additional power.” James Madison agreed, “Its meaning must, according to the natural and obvious force of the terms and the context, be limited to means necessary to the end, and incident to the nature of the specified powers.” Edmund Pendleton argued to his constitutional convention that the clause is limited also. The aforementioned founders and scores of other Federalists clearly meant this clause to be strictly limited. Strike three. The Necessary and Proper Clause was not meant to give the federal government unlimited power to regulate the weight of a spear of asparagus, the size of oranges, the fuel economy of my car, nor any of the other pesky and inefficient regulations hoist on the country.

Let’s get it in the open. The Constitution is (in your view) an anachronism, and it is (you wrote) insufficient to regulate the 300 million people in modern times unless we rip apart the meaning of carefully chosen and informed phrases and substitute them with frivilous notions which are geared to maximize the political power of people who have less appeal than used car salesmen. It isn’t a flexible piece of goo which can be molded to suit the whims of the dictatorship of the proletariat. It isn’t a bunch of ‘text’ at which we can throw a copy of Derrida’s ridiculous blather. If that is the case, you have the right to start a movement to abolish it. Until you can abolish the Constitution, it is the solid and inflexible law that limits the scope and power of the US government and gives very strictly limited power to mess with states or the people. When the government exceeds its power it is still usurpation, and the violence, corruption, unending wars, conscription, and legalized theft so rampant in the 20th century are the result of the growth and frequency of usurpation.

@tychecat - It’s fine if you choose to be a miserable house slave, but you have no moral right to inflict your watered down police state on any one else. For that, sir, you sit in an infamous gallery.