Rating for this letter: Thoughtful
Author: Byron Kern, Richardson
Why is it that when someone writes a letter to the Dallas Morning News, interpreting the U.S. Constitution, complaining of some over-reaching interpretation by a previous writer, these other writers feel compelled to provide us with alternate - but equally over-reaching - interpretations of their own. Two wrongs don't make a right folks.
I don't know the answer or motivations of Einer Elhauge or Byron Kern, and won't suppose any. I do make the assumption that the Dallas Morning News editors are attempting to support a forum wherein equal but alternate interpretations may be presented. There are too few forums for public debate and I always find this particular forum stimulates me to thought and comment.
I don't know the answer or motivations of Einer Elhauge or Byron Kern, and won't suppose any. I do make the assumption that the Dallas Morning News editors are attempting to support a forum wherein equal but alternate interpretations may be presented. There are too few forums for public debate and I always find this particular forum stimulates me to thought and comment.
Luckily for me, this is my forum and I can comment without regard to anything like equal or open debate. So, often, I take a stand and express opinions that do not reflect as equally worthy the comments of these writers to the DMN.
In this case though I find merit in both writers assertions.
Let us examine both.
First that the "Constitution backs [the] health care law through [the] 'necessary and proper clause." It is not accurate to say that the U.S. Constitution "clearly" supports anything in whole.
What the constitution supports is ongoing debate, interpretation, and thereby application. But the rules of the application change - albeit slowly and with great dispute in the public arena. So, Einer, I would say you lose on the use of the word "clearly."
What the constitution supports is ongoing debate, interpretation, and thereby application. But the rules of the application change - albeit slowly and with great dispute in the public arena. So, Einer, I would say you lose on the use of the word "clearly."
Examining the words themselves, without regard to precedent, or the available background discussions between the authors of the Constitution, is enough for the moment. We need only ask three questions of the health care law.
Is it a necessary government act? Is it a proper act of the government? Then finally, does the health care act meet both these provisions at the same time; because, the requirement is not that either or will be sufficient. The word "and" establishes the requirement that the law be both necessary and proper. So there are two standards to be met.
Is it a necessary government act? Is it a proper act of the government? Then finally, does the health care act meet both these provisions at the same time; because, the requirement is not that either or will be sufficient. The word "and" establishes the requirement that the law be both necessary and proper. So there are two standards to be met.
As regards the law being necessary - in my opinion probably not. The text of the Constitution says nothing at all about health care. So it seems something of a reach to say that health care is necessary in the same sense as say, the defense of the nation. The comparison is simply not supported by the words of the document.
As regards being proper - in my opinion probably yes. With such an exorbitant amount of the public purse being expended on health care through the taxing power of the national government, it seems to me only proper that the government exert some control over the demands placed on it through the funding of basic health care costs incurred by state and local municipalities in the form of a "public good." To date, I have not heard any reasoned argument for dispensing with this public good where it is available and I can not concede the point that what the national government pays for it has no distinct obligation to manage.
Moving on then, let us examine Mr. Kern's assertion that Mr. Elhauge's previous interpretation of what the Constitution demands, is unfounded on the basis that our founding fathers limited the powers of the central government by their "consider [ing] expressly listing the allowable functions of the central government?
Well, Mr. Kern you lose this argument on every count. "Considering" is a far cry from "doing." In fact, that they considered the limitations of the central government and distinctly identified some limitations and left out countless others, gives weight to the argument that no complete and absolute limits on the central government could be created.
This seems reasonable to me simply because our founding fathers were not so taken with themselves they assumed they could foresee every instance. They did however foresee the a central government attempting to assume all power to itself and thence gave us the specific rights in actual words as contained in the Bill of Rights. They also foresaw the obvious defect of being so specific in their enumeration of central governments powers as to preventing it from taking action when the good of the whole of the nation so requires.
This seems reasonable to me simply because our founding fathers were not so taken with themselves they assumed they could foresee every instance. They did however foresee the a central government attempting to assume all power to itself and thence gave us the specific rights in actual words as contained in the Bill of Rights. They also foresaw the obvious defect of being so specific in their enumeration of central governments powers as to preventing it from taking action when the good of the whole of the nation so requires.
How shall we decide then? Flip a coin? Our founding fathers had the good sense to realize that such matters not be left to chance and provided a forum in which such opposing views might be decided - The Supreme Court.
I am no great fan of many of the current members of our third branch of government. But commentary on the current make up of the Court is a subject all unto itself. Suffice is to say they collectively speak to national need for justice through their constant, but slow, moderation of our national course of action through the application of the law.
Both writers exhibit a failure to understand this. The very foundation upon which the Supreme Court rests; application of the law is not the same as justice. Justice is not an absolute that once reached - in say, the verbatim application of what is expressly contained in the text of the U.S. Constitution - never need be addressed again. The pursuit of Justice is just that - a pursuit. It is ongoing and will never end.
Both writers exhibit a failure to understand this. The very foundation upon which the Supreme Court rests; application of the law is not the same as justice. Justice is not an absolute that once reached - in say, the verbatim application of what is expressly contained in the text of the U.S. Constitution - never need be addressed again. The pursuit of Justice is just that - a pursuit. It is ongoing and will never end.
As I have said before "justice is truly blind and only finds it's way by straying off the path of what is "right" or "wrong" and getting "bitch slapped" back into reality.
Sometimes it's the stick and sometimes it's the carrot, but one way or the other, the law is an ass in many particular applications, and therefore needs constant direction on it's path toward justice, which is first and foremost what our founding fathers wanted to give to us,
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