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Questions for Schumer...

by Edward ODaniel / September 4, 2005 3:48 AM PDT

and several here who keep up the "Living/Changing document" pretext.

http://www.washingtonpost.com/wp-dyn/content/article/2005/09/03/AR2005090301006.html

Questions for Sen. Schumer

By George F. Will

Sunday, September 4, 2005; Page B07

New York Sen. Charles Schumer, a member of the Judiciary Committee and an author of the Democrats' catechism regarding constitutional reasoning, soon will be questioning Supreme Court nominee John Roberts. Herewith some questions someone should ask Schumer:

Does Congress have the power to require Americans to floss after brushing their teeth? Or to regulate the amount of homework children do each night?


Much of his rhetoric does seem to support the circular reasoning necessary to arrive at a yes answer which indicates that the "situation" would rule.

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Ed, your reduction ad absurdem is showing again.
by Dave Konkel [Moderator] / September 4, 2005 1:23 PM PDT

Here's a perfect, real-life example of the two viewpoints.

The Constitution says nothing about regulation of television and radio. How could it -- they weren't invented yet? When those issues came up, the "living document" school, which held sway for the first 200 years of this Constitutional Democracy, said that since radio and TV waves cross state lines, it's naturally in the Federal domain, not the states, to regulate them. "Strict constructionists" argue that because there was no mention of television and radio in the Constitution, their regulation comes under the 10th Amendment, and is reserved to the States. That approach has unfortunately dominated the Texas courts since the current State Constitution was written in was written in 1876, more than 90 years more recently than the US Constitution, yet has already been amended 432 times, with another 9 to be voted on this fall (including one banning gay marriage Sad ), vs. under 30 for the US Constitution in amost 90 more years. That's a very strong argument against strict construction; and that low number says that strict constructionists aren't really "conservative," they're reactionary -- they want to go back to the same flawed viewpoint that doomed the first United States, which lasted only 11 years.

-- Dave K, Speakeasy Moderator
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The opinions expressed above are my own,
and do not necessarily reflect those of CNET!

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Perfect example? Not what you offered.
by Edward ODaniel / September 5, 2005 3:33 AM PDT
The Constitution says nothing about regulation of television and radio. How could it -- they weren't invented yet?

Didn't have to be invented Dave as they do happen to fall within one of the enumerated powers of government located in Section 8 of the Constitution, namely Commerce. Strict Constructionists DO NOT make the argument you claim.

Judicial activism on the other hand ignores the fact that making laws was specifically relegated to Congress and not the judiciary.

The Constitution was never intended to be a "living document" subject to change at the whim of either the Judiciary or Congress as the specific means for changing it were carefully laid out by the framers. Those means are known as Ammendments to the Constitution.

The 10th Amendment covers such things as States Rights which the Fed has usurped by expanding its powers through judicial fiat rather than properly through Amendments in such things as Abortion, eminent domain, welfare that is nothing more than redistribution of wealth, and yes, even state religions if the state chose to do so as did Virginia and others AFTER the Constitution was ratified.

Amendments to state constitutions are simply red herrings that have no purpose other than diverting attention from your specious argument.
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