TheScout

Even a theory needs a definition. I think that is why we are having so much trouble even arguing about it. We don't even have a common agreement on what it even means. Once you understand what it means, then you can debate its applicability. For example we know what Marxism is, or Capitalism is, or Liberatarianism and can explain it and such we argue about it. I would send conservatives do not tend to be strict constructionists because it supports their ideals. They believe so because they think that is the right way to interpret it. A responsible person would not just cast this aside when it comes to something they do not agree with, like the 14th Amendment. (Of course that being said you can say the original meaning of the 14th Amendment is much more conservative and limited than that applied today)

I guess we will not agree on this. But it seems to me the Wikipedia definition is the most concise you will get. Its not an argument like you seem to demand. Simply a base definition. I don't get how you say originalism does not have to be simplistic, but absolute textual originalism is. Is it better if we are originalist and only partially faithful to the original intent/meaning. I am not the one who made up the only two ways to interpret the Constitution thing. That was actually taken from a quote my Justice Scalia. I guess you don't like him or think much of his intellect either though? If you're a dedicated originalist, there is not continum. Just the original intent/meaning - whatever you subscribe to. It seems to me the that "classic conservatives" are very much strict constructionists in some form. Look at the most classic of American conservatives. Pick a John C. Calhoun or a Jefferson Davis. Read the South Carolina Exposition and Protest or the Rise and Fall of the Confederate Government. Both men only desired the maintenance of the constitutional system that their fathers lived under - originalism. From what I know and from a bit of recent reading it seems to me simply that the Unitary Executive Theory is that the President has complete control over the Executive branch - hence the name. What part of the executive branch or its actions do you think the President should not have control of?

Well somebody must have a good article/definition of the theory if wikipedia doesn't? The article you supplied was just pure bashing and didn't even pretend to be unbiased. And though the article omitted counter-arguments, etc - it supposes to be an encyclpedia article. Those aren't often points of debate. (Though I suppose with wikipedia that is changing). But I do ask, do you have a better definition? I would actually like to see it. Nobody advocates that it is an unconstitutional theory. One would just say the President has complete power of the executive branch within the bounds of the Constitution. "You are mistaking a rejection of simplistic notions of Originalism as embracing the opposite extreme. Life is not a choice between extremes. There are all kinds of rational (albeit not always simplistic) positions in the middle." I don't know why originalism is simplistic. I find that a bit insulting. I don't know why it is any less "rational" then any other method. But I would contend that in total there are only two methods in sum. Seeking some type of originalism or making it up. Conservatives by definition seek to maintain a status quo and hence have always fallen in the originalist camp.

A holiday in several Southern states. Deo Vindice!

Darn, I thought we could trick Him.

Since we are not sure about God, maybe we should just error on the side of caution and say we believe in Him. Then if He exists He will be happy. If not, not harm.

Hmm, well Yoo doesn't seem to be a neocon, he could be but I do not really know. But he is not the only one who has written such things. I doubt we are really that far apart as it seems. I would say (even though its Wikipedia) that the definition is probably a pretty fair, non-political one. Wouldn't you? Now what in that definition do you not agree with? Maybe I am just totally out of touch on this one, but I don't get why everyone just seems to hate this theory! It also seems odd that you pretend to be a traditional conservative and seem to agree with the living constitution theory. The two beliefs aren't compatible.

I have never heard Gen. Eisenhower portrayed as such a radical. I always liked him.

I didn't see your last post when I wrote mine. And I am Catholic by the way. That author seems to have a little axe to grind though perhaps? I know its only Wikipedia, but this seems to offer a maybe less political view of the theory. More in line of what I always believed it was. "In American political and legal discourse, the unitary executive theory is a doctrine of constitutional interpretation that basically means the president controls the entire executive branch. Although that general principle is widely accepted, there is disagreement about the details, and therefore some people favor a "strongly unitary" executive whereas other people favor a "weakly unitary" executive. The general principle stems from Article Two of the United States Constitution, which says that only the President is vested with the power to execute the laws in the executive branch. The federal executive branch is very different from many state governments, where the attorney general and other executive officers may be elected separately from the state's governor. According to those who believe the Constitution provides for a "strongly unitary" executive, Congress cannot bar the president from firing any executive branch officials, and the president can control policymaking by all executive agencies within the limits set for those agencies by Congress. Some people oppose the unitary executive theory, or one of its two forms, while still supporting its constitutionality; in other words, they believe a constitutional amendment would be needed to eliminate it." Just a little research led me to a fellow from Northwestern Law School, Christopher Yoo, who wrote 4 papers, titled, "The Unitary Executive During the First Half-Century" (then Second Half-Century, etc.) Thats why I can't believe that it is a new theory.

Beavah, I think maybe you have a different definition of the Unitary Executive theory than I do. I must admit I do not know too much about that. I never got the whole Roman Emperor idea or the fact that he "ignores" other branches. To me, the "core notion" is that theh President has complete control of legitimate actions of the executive branch. One of the biggest aspects of it I reckon is the Presidential appointment/removal power. History shows many battles between the President and Congress about this. This is what President Andrew Johnon's impeachment was about. That is why I don't reckon it a "new" theory. It also seems a built faulty to blame the expanion of Presidential power on "neocons". I reckon the likes of Lincoln, Wilson, and FDR played a rather large role in it. All probably expanded executive power for more than Bush I seem to think. I actual consider myself a "true conservative." I actually voted for Ron Paul in the primaries and Bob Barr from the Liberatarian ticket in the genreal election. But saying that, I don't think the Unitary Executive is inconsistent with the constitutional limitations of the office. I see no reason why the President should not have full power over the executive branch - as long as he does it according to the Constitution. It seems to be that the fact that "The executive Power shall be vested in a President of the United States of America" pretty much gives all executive power to him. It seems to me that some of these problems come more from Congress abdicating its responsibility to make decisions than the President taking power. The Iraq War Resolution for example, gave the President the deceision to go to war or not. The intent of the Constitution was to have Congress decide. But Congress does not like to make unpopular decisions. If Congress stuck to their powers as much as the President stuck to his, I think we would have a much more healthy constitutional structure and more true to the original vision. I assure you both don't know the plain meaning is "poppycock." All the men at the time don't have to agree on the plain meaning Original Meaning requires. It does not look at intent at all, but what the words meant at the time. A subtle, but probably better difference from Original Intent. If you suppose we are just making it up, why do we bother having a Constitution at all? Or maybe we should just have one that lays out the structure of the government and is silent on the powers, if the powers will always change. Why did the founders limit the powers of the federal government then if they expected us to change the powers at every age? Some of the states would not have ratified if they knew these limitations on federal power were not there. Were they just put there to gain their agreement to be changed later? That seems quite bad faith. Almost trickery. Maybe the deference we should have is to the Constitution. To the will of the people who voted to ratify it. If I may say it seems you have odd constitutional views for a "true conservative." Most are pretty much in the originalist camp (even the neocon's claim to be!). Your living document theory seems to be more in touch with liberals. Merlyn, thats a good point! The Supreme Court always seems to be the odd man out. Isn't that why its Article is so short and vague, no one at the time could really agree on it? Interesting enough, though the Confederate Constitution which was almost identical to the US one authorized a Supreme Court, but the Confederate Congress could never agree on how it should be composed and its powers so it was never created through the life of the Confederacy. There is an interesting book, "The Confederate Constitution of 1861: An Inquiry into American Constitutionalism" by Marshall Derosa. It has a chapter about the Confederate judiciary. It is intereting to read how the national, but mainly the state courts resolved differences without a Supreme Court in what sounds like a rather efficient manner. Other than that it covers the other Constitutional innovations of the Confederacy. Makes an interesting read.

"Sure. Now could you answer my question from earlier?" "I've already posited a situation where congress says X is constitutional and SCOTUS says it isn't, so now where do you turn to determine what is consistent with the constitution?" Lete everyone decide! The executive should favor which side he believes is constitutional. States shouldn't allow either branch to pursue illegal methods. The people should ignore or resist illegal measures as well. It is not an absurd theory. Many early American statesmen thought in such a way. Recall, James Madison said, "Nothing has yet been offered to invalidate the doctrine that the meaning of the Constitution may as well be ascertained by the Legislative as by the Judicial authority." James Madison Beavah, I think you point out the difficulty in Originalist theories of interpretation. Perhaps that is why Original Meaning is better than Original Intent as that does not seek to determine the thinking of any writer, but instead the plain meaning in the time when a document was written. So I would say that is how they "properly" read the Constitution. In the end there are really only two ways to do so. One is to try to determine what people meant at the time it was written . . . or to make it up. I don't think we should make it up. I don't know why there is so much recent hatred for the Unitary Executive Theory though. It is really not that new or radical. It seems to have become a whipping boy for people who hate things George Bush does. I think you are stretching call George III's government a "unitary executive" or by the contention that the Constitution was written to stop that. Even at this time the King's ministers were responsible to Parliament, and I guess I have never really though about it before, but it seems that Westminister governments leave much more responsibility to individual ministers. Also recall that the Convention specifically rejected the New Jersey Plan's notion that there should be a plural executive in favor of the single executive they have today. And they decided not to limit the reelection of the President. Doesn't sound too much like a group set on crushing executive power, does it? It seems the single executive was decided on as to not allow the President to hide behind his appointes or in a crowd. This way all could see that any corruption or error in the executive branch was the fault of the President. I also do not understand why you call it a neocon theory. It existed before neo-conservatism. I think it is a very legitimate theory and I have never advocated any tenant of neo-conservative and consider myself a faithful paleo-conservative ( I guess what you called a "true conservative."?)

Well Meryln's theory of Presidential legitimatism shows how literalism is a faulty method of Constitutional interpretation. There are many vague parts. As was brought up with the Unitary Executive Theory, what does the Takings Clause mean? Or the Vesting Clause? Clearing we can't agree on how the 1st Amendment should be interpreted. These are just a few examples. This is why it is important to look at the original intent of those who wrote the Constitution and the States that ratified it. We can try to find out what they meant by "due process" and "cruel and unusual," etc. We can try to be faithful to the document as it always has been, and not try to change it to our whims. BTW Beavah, I think you point to the wrong problem. I don't think the Unitary Executive Theory is so far-fetched. I think some of the actions President's have made while claiming the theory are the problem. It is the extension of the separation of powers to an extreme.

Hal: "So the SCOTUS decided that some of FDR's programs were unconstitutional and then FDR decided that the SCOTUS was not limited to 9 members by the constitution so he attempted to appoint more justices (court packing). The SCOTUS said that was unconstitutional." I htink your history is wrong on the Judicial Reorganization Bill of 1937. The SCOTUS did not rule it unconstitutional. It failed in the Senate. It is certainly within the Article III powers of Congress to design the SCOTUS. Since it was constitutional and the bill passed clearly FDR would have had the right to do so. I have never really came out against judicial review. But I do not think that this precludes the executive or legislative branch to also "review" the Constitution. Again, why should one of these branches follow through with something they think is unconstitutional just because the SCOTUS says so - since this isn't their right in the Constitution. Hopefully we don't elect straw men to office. As I pointed out. Many esteemed early statesmen felt this way. Merlyn, you write, "What? Why not? If the government can ignore the court on what their powers are, why can't they also ignore what they can spend money on? You appear to be making a completely arbitrary distinction." Well they can of course. But if they ignore the Constitution on "what they can spend money on" - they are violating the Constitution. The Constitution does not give the SCOTUS the final say on the Constitution, so by ignoring a faulty ruling, the are not violating the Constitution. "And if congress considers a SCOTUS decision that says they may not raise and spend funds on X, they can ignore that too, right? Or can't they?" Yes . . . if the SCOTUS's ruling is not consistent with the Constitution. But why can't congress interpret their role to raise and spend funds on something the SCOTUS says is unconstitutional? Can't they ignore that ruling too, and make their own interpretation? Where's the line? "Where's the line?" The Constitution! I've been saying this for a long time. I don't make this up. Its only a couple of pages long. Everyone should read it!

Hal, thinking more, you even answered your own question! "The other branches are free to ignore SCOTUS decision if it is not in keeping with the Constitution." 'Of course they should not go along with something "NOT IN KEEPING WITH THE CONSTITUTION." Or should they go along with something not in keeping with the Constitution? The great object of my fear is the federal judiciary. That body, like gravity, ever acting, with noiseless foot, and unalarming advance, gaining ground step by step, and holding what it gains, is ingulfing insidiously the special governments into the jaws of that which feeds them. Thomas Jefferson

Hal, its not as absurd as you may think. LOL. Without going into extensive historical detail . . . Andrew Jackson certainly thought that way. Read his Maysville Road Veto. As did Jefferson and Madison. Read the Kentucky and Virginia resolutions. As did John C. Calhoun. Read the South Carolina Exposition and Protest.And many lesser early American statesmen. Regardless of what the SCOTUS says, should the President execute a law he thinks is unconstitutional? Regardless of what the SCOTUS says, should Congress pass a law they think are unconstitutional? And what about the States, who actually wrote and ratified the Constitution? Like a party to any contract don't they have a right to ensure its terms are fullfilled. There has to be a "check" on the appointed for life nine guys who sit on the SCOTUS, doesn't there?

Hal, you write: "So you oppose: No Child Left Behind? Medicare (including prescription benefits instituted by Bush)?" Yes I do. "I'm guessing you also agree that the federal government can't overrule state legislatures on such issues as medical marijuana?" Yes I would, its a state responsibility according to the Constitution. "I suppose you would also oppose any federal law limiting marriage to being between a man and a woman?" Yes I would, its a state responsibility according to the Constitution. "I'm sure that if congress had passed that law that Justices Roberts, Alito, Scalia and Thomas would have voted it down." I would have voted it down too, its not one of Congress' powers. "Or do these strict constructionist constraints apply when the issues are liberal "good ideas" rather than conservative ones." No they apply to all. I am a strict constructionist not a hypocrite. I oppose when "conservatives" do things agaist the Constitution as well. I consider myself and old school Republican like Robert Taft and Ron Paul. I don't really know where I came off as a hypocrite on this matter? I think I have always been a quite consistent support of states rights and a limited federal government on all matters. I think even Merlyn could vouch for that! For example, as the SCOTUS brought back the death penalty after its hiatus in the 1970s, I support that decision as being within the bounds of the Constitution. Yet as a Catholic I personally dislike the death penalty and would like to see it abolished. The last business day of the Bush administration has drawn to a close" I do think thats a shame though. Though I don't like everything Bush has done, I think he is a sincere and honorable man who always did what he thought best for the republic. (I realize probably everyone still hates him and does not even think he is sincere or honorable and I realize that so you don't have to tell me.

Beavah, astute point. However, the federal government would continue to take tax money from any state that opted out. This would force the state to go in the "negative" by many millions of dollars. It would be irresponsible for a state legislature to do so. They are almost being coerced. The problem is still the federal government using its spending power to effect unconstitutional ends. The spending power is clearly not unlimited or the federal government would have the power to do anything.

You are smart enough to know that the spending power is not unlimited. The federal government can not spend for purposes that are unconstitutional, whether a court says so or not. I agree that the other branches could "ignore" a SCOTUS decision if it is not in keeping with the Constitution. There are three branches to the federal government as well as the states. They all have the duty to interpret the Constitution in undertaking their roles.

No. But the federal government has been barred from doing other things that it does not have the power to do under the Constitution. Recall that for the vast majority of of American history the federal governement did not even try to interfere with the State's powers over education and health care so there was no need to strike down such legislation. I am sure if the federal government tried to take control of education or health care like they do today at any time during the first century and a half of the republic they would have got mercilessly struck down. However, once again I would contend that any court is not the sole judge of the constitution but we have been through that before . . .

"If the people WANT the federal government to have something to do with health care or education, does the constitution prohibit this?" Recall the 10th Amendment says: "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." Since health care and education are not mentioned in the Constitution it seems a stretch to say such powers were delegated to the federal government. Under that logic almost anything could be stretched. What if the "people" want the federal government to torture prisoners, or anything else for that matter. It is also apt to mention that the federal government had virtually no role in health care and education for the first at least century of the American republic. Hence it was clearly not the intent of the writers of the Constitution, nor the people who voted to ratify it that they should have such powers. If we wanted the federal government to take control of education and health care. We can pass a constitutional amendment to CLEARLY give them the power to do so. "Preamble: "...promote the general welfare..." Welfare at the time meaning health and well being. Same word used again in Article I, section 8." The Preamble does not create any powers. It is merely an introduction through which can influence how other parts may be interpreted. From Section 8 you conveniently left out most of the clause you quoted. In total it says: "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" It says Congress may raise taxes, etc. for the general welfare. It does not say they may meddle with education for the general welfare. You may note that Section 8 gives a list of 17 powers that the federal government has. Even the "elastic clause." Only gives Congress the power to "make all Laws which shall be necessary and proper for carrying into Execution the FOREGOING Powers" (emphasis added). This is not an issue whether federal control of health care and education is a good or bad thing, but if it is constitutional. imply because you have a problem that needs addressing, its not necessarily the case that Federal legislation is the best way to address it...The constitutional limitation doesnt turn on whether its a good idea. There is not a good idea clause in the Constitution. It can be a bad idea, but certainly still satisfy the constitutional requirements. -John Roberts, Chief Justice of the United States

Yeah because liberals love the Constitution so much. I missed where it mentioned how the federal government had anything to do with health care or education.

We could just destroy the federal monopoly on money to solve the problem. Return to free banking. All banks can issue notes backed by bullion reserves. This would crush government overspending and foreign adventurism as the government would actually have to tax to get its funds and couldn't rely on foreign loans and manipulating/creating paper currency. We wouldn't have to worry about housing bubbles and such as easy credit would not be so easy to come by. Smaller amounts of credit will ensure only the best business ideas and most sound people would get loans.

I don't know why Congress got involved anyway. I missed that part in the Constitution about the power to regulate cable I suppose.

Lisa, You seem to forget the difference between Neo-conservatism and Paleo-conservative. Bush is very conservative . . . in the neo-conservative sense.

Wow thats clever.