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#299812 - 03/20/17 04:09 PM Constitutional Values
NW Ponderer Offline
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In other threads we have touched on this issue tangentially, but I'd like to make it the core of the discussion. I am a "true believer" in the Constitution, its framework, and its centrality to what we are as a country and a people. There are, in my opinion, many people who wave the flag and insist that they support the Constitution at the same time that they denigrate the one and undermine the other. Much of this is pure ignorance. To dispel some of that ignorance, I'd like to start with the Preamble:
Quote:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

What does this tell us about the purpose and intent of the framers? Their "Who, what, why, and how?"

"We the People of the United States" - the source of authority is the people, not God, not a sovereign. Implied in that statement is that the people's voice should not be inhibited or infringed. That all that follows is for the benefit of "the people of the United States" as a whole, not to segments, elements, or parties.

"in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity," That's a lot.

"Union" - solidarity, inclusiveness, indivision. That's a pretty explicit value. We take care of each other. Not red States or blue, not rural or urban, not based on color or beliefs. All of us.

"Establish Justice" - To be FAIR. Details matter. Equality of treatment, Due Process, equality of access - these are all elements of our purpose and fundamental values.

"Insure domestic Tranquility, provide for the common defense" Note that domestic Tranquility comes before common defense. Divisiveness is not a constitutional value. Avoiding dissent by considering others' interest, rather than suppressing it. Note, too, it's common defense, not individual defense.

"Promote the general Welfare". Wow, that's pretty explicit! Note the theme of inclusiveness.

"and secure the Blessings of Liberty to ourselves and our Posterity" It's not just about us, but also future generations. Liberty. Pretty important. Liberty encompasses a lot. Freedom from, freedom to... move, speak, write, believe, own, earn, save, pass on, not be compelled, harassed, taken from or disadvantaged.

"Do ordain and establish this Constitution for the United States of America." Notice it is for the United States, not of.

Too often, I think, we forget these common values and replace them with our own. That is particularly oppressive when values are imposed on us, rather than accepted by us.
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#299815 - 03/20/17 04:35 PM Re: Constitutional Values [Re: NW Ponderer]
pdx rick Offline
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Great post NW_P. Thank you for this. smile
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#299816 - 03/20/17 04:53 PM Re: Constitutional Values [Re: NW Ponderer]
pdx rick Offline
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So how does the preservation of the Arts thru government grants fit into all of this? Hmm
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#299817 - 03/20/17 06:41 PM Re: Constitutional Values [Re: pdx rick]
pdx rick Offline
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Originally Posted By: pdx rick
So how does the preservation of the Arts thru government grants fit into all of this? Hmm

I'm going to try this myself. See if I'm close, NW_P. smile

In United States v. Butler, 56 S. Ct. 312, 297 U.S. 1, 80 L. Ed. 477 (1936), the SCOTUS agreed that Congress has broad powers to spend federal money on our Country's general welfare, but with limited funding. The decision essentially combined Madison's interpretation of the clause "promote general welfare" to mean that "spending is not unlimited" and Hamilton's interpretation of the clause to mean "Congress the power to spend without limitation for the broader general welfare of the nation."

promote - support or actively encourage.

general - affecting or concerning all or most people, places, or things; widespread

welfare - the health, happiness, and fortunes of a person or group.

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#299843 - 03/21/17 04:10 PM Re: Constitutional Values [Re: NW Ponderer]
NW Ponderer Offline
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I like your thinking on this, Rick, and I agree with your conclusion. From a purely legal standpoint, I think you have nailed it. I was going to approach it a little more philosophically in the response that I was preparing, yesterday, when I saw your followup. Not wanting to waste that effort, here's my take:

The general scheme of the Constitution is this: Government acts within its sphere, doing the things that it is assigned to do with authorities given to it by the people. The people are then free to do what they will, without interference, to the extent possible without infringing on the rights of others to do the same. To ensure that there is as little overreach as possible, certain rights are explicitly enumerated (in the "Bill of Rights" Amendments), and others exist by implication. In Roe v. Wade, the Court described a "right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the district court determined, in the Ninth Amendment's reservation of rights to the people," which Justice Blackmun described as an implied "penumbra" of rights surrounding the explicitly enumerated rights. (Personally, I've always found the Ninth Amendment argument far more persuasive. It states, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Pretty solid language.)

To keep to your point, though, I think another general "penumbra" right, beyond privacy, is "freedom of expression." The First Amendment describes several aspects of that - in speech, religion, the press, peaceable assembly and petitioning the government - which, collectively, can be described as expression. Since this is a right specifically enumerated and preserved, the government has an interest in ensuring its exercise. That's where I think that funding for the arts comes in.

As part of its "general welfare" obligation, I think that the federal government is well within its purview in promoting freedom of expression, and preserving it in a robust form. While there are other ways of doing so, direct funding to support arts and artists' activities is a legitimate way of doing so. I wouldn't go so far as to say it is "required", but it is of such a fundamental value, and so integral to what we, as a polity, represent, that highlighting it in such a way is not only authorized, but laudable and worthy of preservation. Apparently a majority of Americans agree: Americans Support Increases in Government Arts Funding. Randy Cohen, the author of that cited piece, also made a detailed and compelling case for why arts funding is integral to our way of life in another post:
Quote:
1. Arts promote true prosperity. The arts are fundamental to our humanity. They ennoble and inspire us—fostering creativity, goodness, and beauty. The arts help us express our values, build bridges between cultures, and bring us together regardless of ethnicity, religion, or age. When times are tough, art is salve for the ache.

2. Arts improve academic performance. Students with an education rich in the arts have higher GPAs and standardized test scores, and lower drop-out rates—benefits reaped by students regardless of socio-economic status. Students with 4 years of arts or music in high school average 100 points better on their SAT scores than students with just one-half year of arts or music.

3. Arts strengthen the economy. The U.S. Bureau of Economic Analysis reports that the arts and culture sector represents 3.25 percent of the nation’s GDP—a larger share of the economy than tourism and agriculture. The nonprofit arts industry alone generates $135 billion in economic activity annually (spending by organizations and their audiences) that supports 4.1 million jobs and generates $22.3 billion in government revenue.

4. Arts are good for local merchants. Attendees at nonprofit arts events spend $24.60 per person, per event, beyond the cost of admission on items such as meals, parking, and babysitters. Attendees who live outside the county in which the arts event takes place spend twice as much as their local counterparts ($39.96 vs. $17.42)—valuable revenue for local businesses and the community.

5. Arts drive tourism. Arts travelers are ideal tourists, staying longer and spending more to seek out authentic cultural experiences. The U.S. Department of Commerce reports that the percentage of international travelers including museum visits on their trip has grown steadily since 2003 (18 to 24 percent). The share attending concerts and theater performances has grown from 14 to 17 percent since 2003.

6. Arts are an export industry. U.S. exports of arts goods (e.g., movies, paintings, jewelry) grew to $72 billion in 2011, while imports were just $25 billion—a $47 billion arts trade surplus.

7. Arts spark creativity and innovation. The Conference Board reports that creativity is among the top 5 applied skills sought by business leaders—with 72 percent saying creativity is of high importance when hiring. The biggest creativity indicator? A college arts degree. Their Ready to Innovate report concludes, “The arts—music, creative writing, drawing, dance—provide skills sought by employers of the 3rd millennium.” Nobel laureates in the sciences are 17 times more likely to be actively engaged in the arts than average scientists.

8. Arts have social impact. University of Pennsylvania researchers have demonstrated that a high concentration of the arts in a city leads to higher civic engagement, more social cohesion, higher child welfare, and lower poverty rates. A vibrant arts community ensures that young people are not left to be raised solely in a pop culture and tabloid marketplace.

9. Arts improve healthcare. Nearly one-half of the nation’s healthcare institutions provide arts programming for patients, families, and even staff. 78 percent deliver these programs because of their healing benefits to patients—shorter hospital stays, better pain management, and less medication.

10. Arts mean business. The Creative Industries are arts businesses that range from nonprofit museums, symphonies, and theaters to for-profit film, architecture, and design companies. A 2014 analysis of Dun & Bradstreet data counts 750,453 businesses in the U.S. involved in the creation or distribution of the arts that employ 3.1 million people—representing 4.2 percent of all businesses and 2.2 percent of all employees, respectively. (Download a free Creative Industry report for your local community.)
Top 10 Reasons to Support the Arts in 2014

I'd call that pretty directly the "General Welfare".
_________________________
A well reasoned argument is like a diamond: impervious to corruption and crystal clear - and infinitely rarer.

Here, as elsewhere, people are outraged at what feels like a rigged game -- an economy that won't respond, a democracy that won't listen, and a financial sector that holds all the cards. - Robert Reich

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#299845 - 03/21/17 05:06 PM Re: Constitutional Values [Re: NW Ponderer]
pdx rick Offline
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Registered: 05/09/05
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Loc: Puget Sound, WA

Thank you for the compliment and thank you for further thoughtful analysis. smile
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#299846 - 03/21/17 05:42 PM Re: Constitutional Values [Re: NW Ponderer]
rporter314 Offline
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Registered: 03/18/03
Posts: 6068
Loc: Highlands, Tx
ahhh .... the NWP Notes on the Constitution

The problem as I see it is conservative ideology. They believe in "limited" government but they do not only mean Constitutional limitations but the extensions of limitation of number of services. Thus for a real conservative, there should only be 4 cabinet positions. For a real conservative there is no phrase "to promote the general welfare". For real conservatives, the correct interpretation of the Constitution is a neutered federal government incapable of doing anything other than allowing the CiC the ability to lead national defense, and even then, they would prefer the federal government levy the several states to supply militia.

I think J Scalia summed it up very well, the Constitution is "dead, dead, dead". Is it any wonder we are in the jaws of a Constitutional conundrum?
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#299847 - 03/21/17 07:23 PM Re: Constitutional Values [Re: NW Ponderer]
NW Ponderer Offline
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Registered: 09/09/11
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I often criticize Scalia's approach as fundamentally wrong - because it is. The Constitution is inherently and explicitly intended to be flexible and adapted to changing circumstances. Remember the drafters were experts in the "common law" - the body of legal principles developed by judges - which grows and changes as adapted to changing circumstances. Since its ratification, judges have used the same principles in interpreting the Constitution. It is Scalia's (and Gorsuh's) sclerotic approach that is the radical departure from the norm.
_________________________
A well reasoned argument is like a diamond: impervious to corruption and crystal clear - and infinitely rarer.

Here, as elsewhere, people are outraged at what feels like a rigged game -- an economy that won't respond, a democracy that won't listen, and a financial sector that holds all the cards. - Robert Reich

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#299857 - 03/21/17 09:49 PM Re: Constitutional Values [Re: NW Ponderer]
rporter314 Offline
old hand

Registered: 03/18/03
Posts: 6068
Loc: Highlands, Tx
I listened to a little of the Gorsuch confirmation hearing and it strains my credulity that the hearings are meaningful.

This case about the trucker was interesting. Not having any knowledge of the law but can comprehend the written word reasonably, I found it interesting that while Gorsuch talked about the law, he failed to comprehend the law in this case. The case led to a paradoxical decision the trucker had to make. The intent of the law was clear, however the words allowed for some ambiguity if one read the words sans context.

Extended, apparently Gorsuch would sustain the absurd (to use Sen Franken's words). Is that what the Founders had in mind when they created a Supreme Court?

To put it in a nutshell, asked why Mr Trump, Bannon, Pribus, and all conservatives would see his confirmation as part of the process to reverse SC decisions which are considered anathema to conservatives he said he could not answer. I guess the answer was too obvious.

Are there any judges left who offer objective opinions based in law?
_________________________
ignorance is the enemy
without equality there is no liberty

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#299858 - 03/22/17 01:38 AM Re: Constitutional Values [Re: rporter314]
Phil Hoskins Offline
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Loc: West Hollywood, CA
Yes in law school moot courts -- no $, no politics.
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