Not terribly practical
Erick at Peach Pundit likes this idea ...
No county, municipality, local school system, or other local governmental entity with taxing powers may increase the tax burden on residents therein through an increase in taxes on tangible real property located in the territorial boundaries of the entity without first obtaining approval of such an increase from a majority of voters residing in the territorial boundaries of the entity.
Again, I'm not saying that I don't support referendums (in fact my rational compromise offer to Glenn Richardson is that we allow individual counties to hold referendums to determine if they want to keep or scrap property taxes), but I also think that this particular suggestion could lead us done quite a burdensome path.
For starters, we're not a direct democracy. We elect officials to represent our views in an attempt to, well, streamline the system for one thing.
Another problem is that it will really make it difficult to conduct some elements of business. If the millage rate needs to raised or lowered, unless you hold a special election, you going to be waiting for these types of votes for a year.
No county, municipality, local school system, or other local governmental entity with taxing powers may increase the tax burden on residents therein through an increase in taxes on tangible real property located in the territorial boundaries of the entity without first obtaining approval of such an increase from a majority of voters residing in the territorial boundaries of the entity.
Again, I'm not saying that I don't support referendums (in fact my rational compromise offer to Glenn Richardson is that we allow individual counties to hold referendums to determine if they want to keep or scrap property taxes), but I also think that this particular suggestion could lead us done quite a burdensome path.
For starters, we're not a direct democracy. We elect officials to represent our views in an attempt to, well, streamline the system for one thing.
Another problem is that it will really make it difficult to conduct some elements of business. If the millage rate needs to raised or lowered, unless you hold a special election, you going to be waiting for these types of votes for a year.
posted by Jmac at 10:24 AM
29 Comments:
Please explain the situation in which the millage rate "needs" to be raised (not lowered, the proposed rule doesn't apply to LOWERGING taxes, does it?), and it is so urgent that you simply CANNOT wait for a referendum.
The whole point of the rule, I imagine, is to make raising taxes 'difficult.'
We aren't a direct democracy, but we often like to take certain issues and make them subject to a more direct process. I personally can't think of a better issue to do this with than the appropriation of private property (i.e. taxes).
Property is the most fundamental right that human beings have (if you believe in things like 'rights'...). The idea that elected officials should be able to just start taking more of our property, without any direct say from the people it's being taken from is a legitimate cause of concern. Isn't it?
The idea that elected officials should be able to just start taking more of our property, without any direct say from the people it's being taken from is a legitimate cause of concern. Isn't it?
The thing is, they have direct say at the ballot box and through referendums. You can't raise the millage rate here without holding public information sessions and, contrary to popular belief, those public sessions actually do sway our elected officials (be it commissioners or school board members).
Again, I'm not opposed to referendums at all. But I do have concerns about starting to go down a slippery slope (like California) where you start having a variety of actions only permitted by popular vote.
"The thing is, they have direct say at the ballot box and through referendums.
I thought you were arguing against requiring referenda for these sorts of changes. ??
You can't raise the millage rate here without holding public information sessions and, contrary to popular belief, those public sessions actually do sway our elected officials (be it commissioners or school board members).
But surely you can understand why this would strike someone who takes property rights seriously as insufficient. The masters who can take my property if they want are willing to let me come plead my case before their star chamber, and heck, my opinions might even 'sway' them to be merciful and not take my property this time around. Great...but I want more control over my property than that.
Again, I'm not opposed to referendums at all. But I do have concerns about starting to go down a slippery slope (like California) where you start having a variety of actions only permitted by popular vote.
And I have no problem with attaching a popular vote requirement to things like appropriating other people's property. I'm not pushing for a 'variety of actions' to be brought under referenda-only status. Just taking people's stuff.
I thought you were arguing against requiring referenda for these sorts of changes. ??
Er, typo on my part. I had highlighted and copied a phrase and forgot to delete 'through referendums' ... though, technically, the populace has the ability to voice concerns that way too.
The masters who can take my property if they want are willing to let me come plead my case before their star chamber, and heck, my opinions might even 'sway' them to be merciful and not take my property this time around. Great...but I want more control over my property than that.
But doesn't this reflect your general philosophical disagreement with any form of taxation, including, say, a sales tax?
Plus, let's say your side loses and they 'take your stuff' anyway ... if you believe it's theft, isn't it theft regardless of whether or not your side wins? Then how are referendums relevant?
Wouldn't a representative democracy, with limited numbers of folks to 'sway' actually be more effective for your cause?
But doesn't this reflect your general philosophical disagreement with any form of taxation, including, say, a sales tax?
Kinda-sorta, but also no. Whatever you think about taxation in general, the income tax is the most unconscionable form. Sales taxes, tarriffs, gasoline taxes, etc., are all conditional taxes that only come into play if a person choosed to engage in a certain kind of exchange. Don't get me wrong, I'm not a big fan of those taxes either, but the income tax is different.
The income tax is the government coming and sayind, "My, didn't you have a nice year. Gimme." It presupposes that the money you earn through your own resourcefulness is not really yours, but really belongs to the government. They magnanimously allow you to keep some of it, but in theory it is theirs. I agree to work for someone, and they agree to pay me such-and-such. This is the stuff of which a productive economy is made. I do my job, and I get paid. I have now increased my wealth. The government now comes in and says that I have to give some of it to them, just because. Not if I want to buy cigarettes, or if I want to import toys from China. Just perios, no matter what. I must give them some of my wealth.
Plus, let's say your side loses and they 'take your stuff' anyway ... if you believe it's theft, isn't it theft regardless of whether or not your side wins? Then how are referendums relevant?
It is morally irrelevant in that theft is still theft whether it had majority vote or not. But the truth is that tax-raising referenda usually have a hard time passing. A much harder time than when political factions who bear little of the direct cost of the raise are asked to make the decision. I support referenda b/c they INCREASE the burden that taxraisers have to meet before they can get what they want. I don't support them b/c they make it okay.
Wouldn't a representative democracy, with limited numbers of folks to 'sway' actually be more effective for your cause?
It depends on the disposition of those limited number of folks, but in general, "No." Those limited numbers of folks are in a position of power, shielded somewhat from the consequences of their own decisions and they are subject to all sorts of political motivations and factionalisms that don't play into the 'normal' everyday person's decisions. Again, history bears this out, generally speaking. Ask people to vote on a tax, and they usually won't (even for things the community wants, like a football stadium, it is a HARD sell). Ask the government to vote on a tax, and it is much more likely to pass.
This is because it's not about strategizing how to persuade the most people, so that I have a better chance of keeping taxes low through the government since there are fewer government people for me to persuade. It's about letting pepole do what they think is best for themselves and their society as they understand it. And this requires far less persuasive work from me. I don't have to go out and 'convince' most of my fellow citizens to vote against the tax. It is already their natural disposition to do so b/c the tax does not serve their interests or it does not do so in a way that is obviously worth the costs.
Of course, the more people in this country become dependent upon government programs, the less my principle might hold true. But for now it's still the case that lots of people naturally oppose tax increases. As they should.
"Great...but I want more control over my property than that"
fine, go and live on a desert island somewhere. As long as you live in a society of more than one person where you're dependent on others to allow you to function as a human being, you will have to have govt and to pay taxes. Furthermore, as long as the govt plays a role in your making a living (through providing roads, schools, having clean water to drink lest you die and not be able to continue making a living, etc) then it has a moral right to tax you for the benefits it provides you. If you don't like the way it does things then there is a way to deal that and it's called an election. This whole "the government is taking MY private property and hard-earned wages" line is just getting old, I'm afraid. Furthermore, furthermore, I suspect that many of the people who complain about gub'ment interference w/ their property rights would be the first to complain if the gub'ment were to let someone else exercise their property rights by putting a great big hog farm in right next door to them.
"Ask people to vote on a tax, and they usually won't (even for things the community wants, like a football stadium, it is a HARD sell)."
You're probably right. But then they should also be willing to tell you what they would cut from the services govt provides them. Unfortunately, most want the services but don't want to pay for them. Want a top-notch education? then you have to pay taxes; want clean air to breathe? then you have to pay taxes; want fire and police protection? then you have to pay taxes. There is no free lunch. So, put up or shutup should be the govt's advice to them :-)
"fine, go and live on a desert island somewhere. As long as you live in a society of more than one person where you're dependent on others to allow you to function as a human being, you will have to have govt and to pay taxes."
You equate human beings living together and cooperating socially with government? How sad.
"Furthermore, as long as the govt plays a role in your making a living (through providing roads, schools, having clean water to drink lest you die and not be able to continue making a living, etc) then it has a moral right to tax you for the benefits it provides you."
Sorry, you've got it backwards. The government does not need to provide those things, and in fact does an inefficient job doing so. Every one of those things can and ought to be provided through free economic exchange. The fact that the government does things it has no right to do in the first place does not give it any 'moral' right to take money from people to do those things it has no right to do.
If you woke up one day and I had decided to 'fix' your lawn for you, could I then demand money from you for a service you never asked me to do in the first place? Would I have a 'moral' right to your money?
Explain the difference.
If you don't like the way it does things then there is a way to deal that and it's called an election.
Speaking of lines that are 'just getting old.' I don't know where this idea comes from that, so long as you have an election, one group of people can do whatever they want to another group of people. I would think that history has furnished enough examples of the results of such thinking to make us abandon it forever.
But right, I fight the electoral battle. But if I lose that battle, theft doesn't suddenly become righteousness simply because we counted heads and the 'steal' side won. Elections alone do not guarantee justice or liberty.
This whole "the government is taking MY private property and hard-earned wages" line is just getting old, I'm afraid. Furthermore, furthermore, I suspect that many of the people who complain about gub'ment interference w/ their property rights would be the first to complain if the gub'ment were to let someone else exercise their property rights by putting a great big hog farm in right next door to them.
Well, I'm happy to have a conversation with you on this, but you'll have to refrain from generic criticisms of "many of the people." If you want to talk to me, fine, but I myself am actually not someone who would complain about a hog farm next door to me. My neighbor can do whatever they want with their own property, so long as they do not damage my own property. I'm not an expert on pig farms, but I don't think the very existence of such a thing would damage my property in any way. So, I would be out of luck if I didn't like it. But that's the cost of freedom, yo.
You're probably right. But then they should also be willing to tell you what they would cut from the services govt provides them. Unfortunately, most want the services but don't want to pay for them. Want a top-notch education? then you have to pay taxes; want clean air to breathe? then you have to pay taxes; want fire and police protection? then you have to pay taxes. There is no free lunch. So, put up or shutup should be the govt's advice to them :-)
The gov't provides a 'top notch' education? Is this Charles? Are you just yanking my chain? :-)
I would be happy to see the following cut from government services:
libraries
schools
roads
parks
water/utilities
mandatory retirement/welfare for older people
welfare/health care programs
welfare for corporations
grants for scientific research
I'm SURE I'm leaving some out.
There is, as you say, no free lunch. Of course, that's an ironic criticism of my position, since you are the one defending government provision of these things. What is government provision but a hubristic claim to be able to provide something for nothing? Here, you can have this or that, and it won't 'feel' like it costs you anything.
There is no free lunch. Which is why I want the money spent on these sorts of services to actually go to efficient uses rather than to politicized distortions that use far more money than the project actually justifies.
And, b/c I've had this conversation before here, a quick definition of 'efficient.' It means "scarce resources are allocated to their more important uses, as determined by the subjective valuations of the population." That's how I'm using the term. It dosn't mean 'money is more important than people,' or anything like that.
Xon: this is a pointless argument, as we'll never agree -- for one, I just don't buy your argument that taxes are theft, which is a popular argument amongst those on the right but is nothing more than ideological ranting, IMO. I can see how, through your ideological lens, you can argue that, but I just think your ideological lens is rather silly (sorry --and I'm sure you think likewise about mine). This is not to say that I think all govt is good --I'm not too partial to fascism myself-- but it is to say that, IMO, govt is necessary lest we end up w/ anarchy and a might makes right/ social darwinist survival of the fittest society (not very attractive), the "private property rights are absolute" crowd are completely unrealistic in how societies actually function, and that w/out govt I suspect that your life would be much more miserable than it actually is, even if you would deny that up one side and down the other (or unless you want to stop using any publicaly provided service whatsoever). Please do tell me how a complex society of 300m plus Americans would function effectively w/ no govt. (which, of course, necessitate taxes). Are you seriously suggesting that w/out govt provided libraries, schools, roads etc that we'd be better off? Do you really believe that people would pay for those out of charity? If they don't, is it really a better contribution to society to have no libraries and schools?
And, yes, the govt-provided schools can and do provide top-notch educations, as any number of scientists, business folk and others who have been through them can attest. they also have their problems, no doubt about it. But so do private schools. Of course, private schools don't have to deal w/ poor kids who come w/ a lot of social baggage that public schools have to deal w/, but that's a different issue.
"What is government provision but a hubristic claim to be able to provide something for nothing?"
govt provision isn't a claim to provide something for nothing; the govt is quite clear -- you get it because you pay taxes :-)
Look, the private sector is much better at doing some things than is govt (like selling toothpaste). No qualms there. But it is awful at doing lots of other things, like providing healthcare (if it were any good, we'd have the world's best healthcare system, which we clearly don't --in fact, it pretty much sucks for some 40m plus who have no access to insurance). Indeed, the most successful healthcare system in the country is probably Medicare.
I guess at the end of the day I just don't buy your "govt is by definition bad at all things" argument. Sorry, that's my market decision :-)
I am interested in one thing you said, though, about the hog farmer being able to do anything to his/ her property as long as it doesn't damage yours. So, if s/he does do something that damages yours, who are you gonna call? Hopefully not the gub'ment, right?
One last comment then I'll let you have your say and we're done on this one.
"Sorry, you've got it backwards. The government does not need to provide those things, and in fact does an inefficient job doing so. Every one of those things can and ought to be provided through free economic exchange."
But they aren't generally provided by the private sector, which is why govt provides them.
"The fact that the government does things it has no right to do in the first place does not give it any 'moral' right to take money from people to do those things it has no right to do."
Who says it has no right to do so?
"If you woke up one day and I had decided to 'fix' your lawn for you, could I then demand money from you for a service you never asked me to do in the first place? Would I have a 'moral' right to your money?
Explain the difference."
the difference is that I never asked you to do the service; people ask govt to do things all the time. If you use any govt service to generate any part of your income/ wealth, then govt does have a moral right to take a part of it to fund those activities --you can think of it as govt's finder's fee if it makes you feel better.
"govt provision isn't a claim to provide something for nothing; the govt is quite clear -- you get it because you pay taxes :-)"
No, lots of people get gov't benefits without paying taxes. I agree that people construe these benefits as being tax-based, and of course in reality they are (nothing is free, and it IS taxes that pay for them...well, that and inflation and borrowing, but sure, taxes too). But the point is that gov't benefits are generally perceived as 'free', and that attitude is encouraged. The mean, free market would make you pay. We give it to you for 'free'....sort of.
"This is not to say that I think all govt is good --I'm not too partial to fascism myself-- but it is to say that, IMO, govt is necessary lest we end up w/ anarchy and a might makes right/ social darwinist survival of the fittest society (not very attractive),"
I'm not an anarchist. I believe gov't has certain necessary functions. The protection of the life, liberty, and property of its citizens. That's pretty much it, though. It has no authorization (morally, and certainly not Constitutionally) to provide education, to 'control' the economy, to provide medical care, etc.
I believe in limited gov't, and that gov't must be funded. But the gov't does not need to be funded by taxes. (There are lotteries, collection drives, advertisements, etc.) If you think that's crazy, then at least realize that the gov't does not need to be funded by income taxes. We had no such tax (except temporarily during the Civil War) until 1913. 1913. Whatever did we do before then?
If we cut the income tax out of our budget completely today, the government would bring in the same amount of money it brought in in 2000. This is less weird than you think it is.
"the "private property rights are absolute" crowd are completely unrealistic in how societies actually function, and that w/out govt I suspect that your life would be much more miserable than it actually is, even if you would deny that up one side and down the other (or unless you want to stop using any publicaly provided service whatsoever).
Again, I'm not an anarchist. I recognize that gov't has a valid function. I'm not against any and all gov't.
I cannot help that gov't improperly provides certain services that are necessary to get along in modern society. We would be just fine with privately provided roads and water, for instance, but since the gov't currently provides these things I have little choice but to shower with gov't water and drive on gov't roads. This hardly means I have no right to state my opinion that the gov't should not provide these things.
"Please do tell me how a complex society of 300m plus Americans would function effectively w/ no govt. (which, of course, necessitate taxes)."
Again, I'm not an anarchist. But no, gov't does not necessitate taxes, and it certainly does not necessitate income taxes.
"Are you seriously suggesting that w/out govt provided libraries, schools, roads etc that we'd be better off? Do you really believe that people would pay for those out of charity? If they don't, is it really a better contribution to society to have no libraries and schools?"
There are privately funded schools, you know. Even charitably funded schools. Roads would probably not be funded out of charity. But they would be funded by private entrepeneuers. Roads can be built and maintained for a profit. (But be forewarned, there will be far less potholes and irrational crew worktimes gumming things up!) And, like most of the things I'm saying here, there is historical precedent for this. One of the saddest thing about being dominated by government is that we end up thinking that ONLY government can do the things it does. but this ain't so. Private roads used to exist. It stretches credibility to suggest that there would be no private funding for such things if gov't didn't do them. There is obvioulsy a huge demand curve for roads to drive on. Where there is demand, there will be supply. It's almost like magic.
Same thing with libraries. There have been private libraries.
If gov't took over milk production and distribution tomorrow, in fifty years we'd all find it unthinkable that anybody but gov't could provide us with milk. Scandalous! Anarchy! Think of the children!
Of course, I don't precisely how many or what quality of libraries and schools the free market would provide. It would be however many, and whatever quality, matched the demand. It may be for instance that we live in a society that doesn't care much for libraries. I think this is a bummer if it's true, but who are we to tell people that their resources NEED to be spent on libraries rather than, say, concerts, tastier food, or swimming pools? People choose in accordance with their own values. If people don't value libraries as much as you think they should, then try to convince them otherwise. This is how a free society is supposed to work.
"And, yes, the govt-provided schools can and do provide top-notch educations, as any number of scientists, business folk and others who have been through them can attest.
This is the post hoc ergo propter hoc fallacy. Dude went to a gov't school (since when is it a democratic or republican ideal to have the government control the flow of information, by the way?), dude is now real smart and successful. Therefore, gov't school made dude smart and successful.
I'm fairly intelligent, and I went to gubmint schools. But this doesn't mean I benefited from them. I still find myself having to 'unlearn' lots of things I was taught by socialized education.
"they also have their problems, no doubt about it. But so do private schools. Of course, private schools don't have to deal w/ poor kids who come w/ a lot of social baggage that public schools have to deal w/, but that's a different issue."
Actually, many private schools cost less per student than gov't schools (which run over 10k a student as a national average now, I believe). Many poorer and middle class people would be better able to afford private alternatives if they had less money taken from them through taxes. And there are also private schools that cater specifically to 'special needs' students, etc. Again, if you demand it, it will come.
Look, the private sector is much better at doing some things than is govt (like selling toothpaste). No qualms there. But it is awful at doing lots of other things, like providing healthcare (if it were any good, we'd have the world's best healthcare system, which we clearly don't --in fact, it pretty much sucks for some 40m plus who have no access to insurance). Indeed, the most successful healthcare system in the country is probably Medicare.
Aside from the over-inflated numbers of uninsured (reports of this typically count anyone who spends ANY time w/out insurance as 'uninsured.' If you transitioned from one job to another and somehow got caught without insurance for a month, you are probably included in the '40 mil' statistic), you seem to be under the impression that our current healthcare system is the result of the 'free market.' It's not. Our market is more 'free' than other places, but that's not really how economics works. Any meddling by government in free exchange has unforeseen and unquantifiable effects.
Right now, we have government regulations of health care that drive up prices. We have licensing requirements that allow doctors and nurses and other pracitioners to operate as a guild, which drives up costs. We have mandates to insurance companies about what and who they have to cover in many circumstances. Again, this drives up demand and costs at the same time. And believe me I'm only getting started.
And the 'toothpaste' argument is so patronizing, especially since as soon as some 'public health crisis' about toothpaste comes along (maybe the Chinese allegedly put lead in imported toothpaste), the gov't WILL swoop in and claim it needs to 'protect' us from the so-called blindspots of the free market. Politicians will line their pockets and will reinforce their power, but it will all be for our own good, of course.
"The market can take care of toothpaste, dear." Pat pat. But the economics of other products, like healthcare, work the same way as toothpaste. There is no magic about healthcare that suddenly makes it immune from the laws of supply and demand. If you artificially hold costs down by subsidizing people's expenses and by having an extensive third-party payer system, then people will demand MORE health care. At the same time there will be no corresponding rise in supply to meet this demand, or there will even be a drop in supply (depending on how regulations affect providers). The result is a shortage of healthcare--less supplied than is demanded--which I thought was what we were trying to fix. That's only a sketch of an argument, I realize.
I guess at the end of the day I just don't buy your "govt is by definition bad at all things" argument. Sorry, that's my market decision :-)
Well, I didn't provide the argument. I just made the claim. The argument requires a more extensive examination of economics, the nature and effects of governmental coersion, etc.
I am interested in one thing you said, though, about the hog farmer being able to do anything to his/ her property as long as it doesn't damage yours. So, if s/he does do something that damages yours, who are you gonna call? Hopefully not the gub'ment, right?
Again. I am not an anarchist. The government exists precisely to defend the life, liberty, and PROPERTY of its people. If someone poisons my water, I have a right to compensation in the courts b/c they have assualted my property rights. My view is perfectly consistent.
(Anarcho-capitalists, which I am not, argue that even the courts could be better provided by the free market, but I am skeptical of that particular argument).
About roads and libraries and whatever, you say
"But they aren't generally provided by the private sector, which is why gov't provides them."
Again, this is simply false. If the gov't did not provide them, then if people wanted them they would be provided by the market. This is how the market works with toothpaste, as you acknowledge. It would be the same for roads et al.
Who says it has no right to do so?
You're missing the point. I originally said that they had no right. That's an argument that can be spelled out more, sure. But you came along and said that they have a right b/c, hey, we have elections and so if you don't like what the gov't does you can always vote them out of office. I simply pointed out that this is not an adequate response if someone has an objection to what the gov't does. Why I have the objection is, again, an argument that needs to be spelled out more. Although the sketch I gave earlier was a decent start.
"the difference is that I never asked you to do the service; people ask govt to do things all the time. If you use any govt service to generate any part of your income/ wealth, then govt does have a moral right to take a part of it to fund those activities --you can think of it as govt's finder's fee if it makes you feel better."
This is just so backwards. For one thing, how does somebody else asking the gov't to do something mean that they have a right to do it, and to make somebody who didn't ask for it help pay for it? This is insane moral reasoning. I asked the Don to 'protect' the neighborhood, so now he's going around and collecting his 'service fee' from all the local businesses. It's only fair.
Plus, the fact that the gov't provides a service it shouldn't provide (b/c not authorized by the Constitution; that's my argument in a nutshell) which I cannot avoid using (like roads, say) hardly means that they now have a moral 'right' to make me pay for that service, since after all I'm using it. We call that extortion, not a moral 'right.'
"We have licensing requirements that allow doctors and nurses and other pracitioners to operate as a guild, which drives up costs."
Yep, I sure want to see a doctor who hasn't been licensed. I'll stay out of Xon world, thanks
Mandatory (monopoly, government-overseen) licensing does nothing to guarantee quality of service. All it guarantees is that the number of people entering the profession will be held artificially low (since it's so difficult/expensive to get in), which will allow the 'guild' to drive up prices. It's a sweet deal if you can get it.
Of course, there could be private licensing companies, or just a 'consumer reports' type operation that reviews doctors, on the free market. Its not as though there would be no way to review the quality of care offered by doctors.
I imagine on a free market that most people will still want their doctors to be educated in medicine, to be good at what they do, etc. But believe it or not, the market provides ways for us to make these sorts of assesments. And the competition from non-guild doctors will drive prices down.
Same with lawyers, beauticians, Hollywood writers, etc.
Mandatory (monopoly, government-overseen) licensing does nothing to guarantee quality of service. All it guarantees is that the number of people entering the profession will be held artificially low (since it's so difficult/expensive to get in), which will allow the 'guild' to drive up prices.
I live in 'Xon World' and this little gem is a reason I try to flee every chance I get. :)
I'm also intersted in Xon's claims about what is and isn't in the Constitution (eg his argument about education). I am assuming he is sort of an original intent guy, which (logically, I would argue) then means that we should also continue to allow slavery (which wasn't abolished until the XIII Amendment and so, presumably, is allowed by the original iteration of the Constitution). But regardless of that particular issue, I'm particularly interested in his response to the following issue: publicly-provided education may not be listed in the original Constitution, but it surely is Constitutional, as it came about through the exercise of the legislative and executive branches and has been held up by the judicial branch, as per the way the founders intended the Constitution to work as a living document. Or am I missing something?
"Or am I missing something?"
I would say, "Yes." Several points:
A. Sure, I'm an 'original intent' guy.
B. The OI position does not mean that we have to stick with the what the Constitution originally said. If the Constitution is amended, then that's fine. And, as you point out, slavery is outlawed by a later amendment. Although I DO have issues with the way that amendment was ratified (i.e., southern states were forced to ratify as a condition of re-entering the Union, which they were being forced to do anyway against their will. They were extorted into ratifying in order to defang Reconstuction policies. The process was a clear Constitutional violation of how amendments are supposed to be ratified. But I support the substance of the amednment itself, obviously. I'd just like to see it striken and then added back in through the proper process.)
C. The framers actually did not intend, in any way shape or form, for the courts to go around 'interpreting' the Constitution into new meanings it did not originally carry. To argue that this has happened acc. to the 'proper' process is simply not true. It's NOT a proper process, since judges were never intended to have that sort of authority in the first place.
Jefferson and Hamilton were the two great representatives of the rival political factions from the beginning. I'm a Jeffersonian, and my kind has been in the minority forever. Ron Paul would be the first 'Jeffersonian' president since Grover Cleveland.
"The framers actually did not intend, in any way shape or form, for the courts to go around 'interpreting' the Constitution into new meanings it did not originally carry"
Two Qs:
1) How do you know what they intended?
2) Isn't the whole point that "interpretation" is left up to the judiciary, which is the way they set up the Const?
One other thing. If you are arguing that the only law that seems to be appropriate in your mind is an amendment to the Constitution, then why did not the founders intend for only Const Amendments to be law? If they didn't intend for all laws to have to be Const amendments (which they clearly didn't, otherwise they would have written the Const that way), then they clearly intended laws to be passed by the legislative branch, enforced by the Exec branch, and interpreted by the judicial (since that's what they wrote about re separation of powers). Consequently, if the leg. branch decides to pass laws establishing income taxes (a Const amend, btw), public education etc, then they are working according to how the Const was set up and intended to work. The fact that you don't personally like the outcome is not a reason, IMO, to say that the system is broken, that the govt engages in theft by raising tax revenue, etc.
It seems to me you want your cake and want to eat it too --in other words, you claim that govt shouldn't do certain things because they're not in the Const (eg provide public schools) but then also say that we shouldn't necessarily expect the Const to function the way it did 200 yrs ago. I agree w/ you on the last bit, but if the way that the Const is set up is for the legislative branch to pass laws and for the courts to determine/ interpret whether they are constitutional or not --which the courts clearly have-- then the nub of the issue, it seems to me, is that you just don't like some of the things that the democratically elected reps of the people have passed. That's fair enough --there's tons of laws I don't like; but that's a far stretch from the kinds of rhetorics you have been throwing about about taxes being theft etc. If not through the democratic process of majority rule (with some accommodation made for minority opinion), how else are we to have a functioning society? You may not like taxes but, presumably, enough people do that we have evolved a taxation system. If they didn't, they would have voted out all the bums who argue for taxes and replaced them w/ others who say "let's get rid of income taxes and replace everything w/ charity and other forms of revenue". The fact that they haven't suggests that, in the marketplace of ideas, your's aren't very popular, so why should we live by them?
"Two Qs:
1) How do you know what they intended?"
Good question. I am not making an authoritative pronouncement. Like with the Bible, I say we open up the text (the Constitution), read what it says together, and discuss what it means. Reasonable people can disagree here and there. But at the same time, you can't claim that the Bible teaches that adultery is okay. That's just an obviously invented interpretation. And likewise you can't say that the Constitution authorizes the federal government to establish schools, or to regulate local schools, or to give all citizens subsidized health care. Those things just ain't there, and the original idea behind the constitution from the people who wrote it (whether they were Hamiltonians or Jeffersonians) was that the Constitution was meant to lay out precisely what things the gov't could do. All things not authorized in the Constitution are, by definition, not authorized and are left up to the states (or to the people, which is just another way of saying "to the states" in our system).
Hamilton disagreed w/ Jefferson over whether there are 'implied' powers in the Constitution. So, for instance, since the Constitution says that Congress has the power to print money Hamilton argued that this 'implies' the power to create a central bank, since creating a central bank is 'necessary' to print money. (An argument that is ridiculous anyway, since it is in on way necessary to have a central bank to print money. And in fact we had two separate central banks that ended up dismantled, with periods of 'free banking' that saw great economic prosperity, before the Federal Reserve was installed in 1913.) Jefferson argued that, no, it just means that Congress has the power to print money, like it says. But nobody in this debate was saying "You know, the Constitution is a man-made document, it's not perfect, and times change. So let's pay it respect with our lips while simply doing the thing that we want to do, whether it's really in there or not." This latter patronizing attitude is our societal attitude towards the Constitution today. You know, like the royal family in Britain. Bring it out on holidays, let it wave, get the people to cheer and feel goosebumpy about the 'pride of our nation.' Then fold it back up and put it away.
So, I'd love to discuss what the Constitution actually says. If someone wants to argue with my interpretation, then by all means let's. When I say I want to follow 'original intent' I don't mean that I have some magical insight into what that intent is. But I do think that any reasonable person who can read is capable of getting pretty close.
And in the Constitution there is no authorized power for the federal government to educate its citizenry. Nor is there any seemingly-unrelated power which a Hamiltonian can say "requires" the gov't to educate. (Believe me, if there was, big government Hamilton would have tried to make the argument already). Just an example.
So education should be left to the states. Presumably the states will want to have educated citizens, and they may do whatever they think best to address the issue. If for some reason they don't care about having educated citizens, then that's their prerogative. Although I imagine they would start seeing a lot of folks move to other states. But that's how decentralized government is supposed to work. No one solution is mandated for everyone, which means that local governments who put bad solutions in place will pay consequences as they lose ground to other local governments (in money, people, prestige, etc.). Much better than what we have now, if you ask me.
"2) Isn't the whole point that "interpretation" is left up to the judiciary, which is the way they set up the Const?
"Interpretation" of the law traditionally (going back to the British common law tradition out of which our nation grew...we weren't so revolutionary as to just cast all that off) means that judges have the authority to 'interpret' HOW the law applies to a particular case. Two people disagree as to whether or not burning leaves next door really constitutes damage to my property. We have a disagreement about what the law says, so we go to the courts to get an authoritative application of the law to our difficult case. This really is the basic idea behind courts that goes back all the way through the western tradition, even to the Old Testament (where Moses divided judicial authority to the heads of the clans, who would send 'hard' cases to the heads of the tribes, who would send their even harder cases to Moses himself).
There may be SOME room in this for deciding whether or not a current law is consistent with the Constitution. So, for instance, if Congress passes a law making Congregationalism the official tax-supported denomination of the U.S., then the Courts have authority to strike that sort of nonsense down.
But 'judicial review' as we have come to understand it, where the court takes authority upon itself to 'interpret' every law in light of 'Constitutional principles', principles which often are ADMITTEDLY not found in the Constitution explicitly, is an invention of judges seeking power over free men and women.
"One other thing. If you are arguing that the only law that seems to be appropriate in your mind is an amendment to the Constitution, then why did not the founders intend for only Const Amendments to be law?"
Okay, I see we've passed in the night. That's probably my fault, sorry. I do not believe that "the only lay that is appropriate is an amendment to the Const". The Constitution is not the only laws that we have. Rather, it is like the norm that tells us what kinds of laws we can have. The Const, for instance, gives the federal gov't the power to coin and print money. But it does not say whether there has to be one mint, two mints, three mints. How many kinds of coin or denominations of paper bills, etc. These are all up to the discretion of Congress.
If you want to pass a law, it has to deal with an issue that the Constitution gives the fed gov't direct authorization to address. There are such issues--national defense, declaration of war, treaties, maintenance of free interstate commerce, diplomacy, etc. If you think that this makes Congress sound largely like a diplomatic body for polite debate with very little control over domestic affairs, then you are thinking the same thoughts that the people in 1789 thought. Which was why they ratified the Constitution. They did not want a federal gov't that took upon itself the responsibility to 'run' the country domestically. That would have been King George all over again, just closer to home.
Now, if there is some law that you really think needs to be passed, say the prohibition of alcohol or an income tax, but it isn't authorized by the Constitution. (And it's clearly not: the Const gives no authority to the fed gov't to ban anything, so prohibition is out. It also gives no authority to the feds to tax people's income. Look up the original wording). Well, in that case you have to amend the Constiution to make those laws allowed, and then you can pass them. And this used to be what people would do when some allegedly 'pressing' issue came up for which no law was authorized by the C.
Today, of course, we just pass the law anyway b/c we know that we can come up with some justification by twisting the words, applying a hopelessly confused array of prior case law, or searching out the 'penumbras' of the C. (i.e. things that aren't actually there but that we think are there as 'background principles'). Even in the early 20th c., folks knew they couldn't just ban something like alcohol, so they got the Constitution amended. Then when that was obviously a bad idea, they amended it back. By the late 1930s, though, Congress just decided to outlaw marijuana with a 'normal' law. No Constitutional debate required!
(The biggest and ugliest link in the chain of events that took us from 'old school' to 'new school' was FDR. But that's another topic altogether.)
Today, if we want to tax this or that, we just pass the law. No Constitutional debate required!
Occasionally certain things are challenged as to their Constitutionality, but this is done by the losing side that is desperate. If you've lost the political battle everywhere else, then challenge the constitutionality. The courts love having the power to review laws in this way, but most of them aren't actually trying to figure out what the Constitution's intention was with its words. It's all just a dog-and-pony show for judges to strike down (or keep) laws they don't like (or do like).
"Consequently, if the leg. branch decides to pass laws establishing income taxes (a Const amend, btw), public education etc, then they are working according to how the Const was set up and intended to work. The fact that you don't personally like the outcome is not a reason, IMO, to say that the system is broken, that the govt engages in theft by raising tax revenue, etc."
But education has never been added into the Constitution via an amendment. We simply don't care, and neither do the judges who are supposed to be 'reviewing' laws as to their constitutionality. I never said that the income tax was unconstitutional. We amended the C and so it is constitutional. I just wish we had the courage to do that for all the changes we've made. But that would take too much time, and people hungry for power want to 'do something' now.
My objection to the income tax is moral and economical, not constitutional. Many forms of taxes are theft (the moral argument), and they hinder prosperity for the whole to the benefit of certain politically-favored groups (the economic argument). For these reasons I do not support an income tax. The current system of government disagrees with me, however, which is fine. If my side were to get their way we would have to amend the constitution. I admit this openly. Destroying the income tax requires a C. amendment. (Though as a temporary fix you could convince Congress to simply pass a law that sets the income tax rate to 0%. But a later Congress could come along and raise it again...so the proper death for the income tax is death by amendment to the C.)
"It seems to me you want your cake and want to eat it too --in other words, you claim that govt shouldn't do certain things because they're not in the Const (eg provide public schools) but then also say that we shouldn't necessarily expect the Const to function the way it did 200 yrs ago."
I don't say that last part at all. It is a perfectly readable and understandable document that is intended to function today just as it functioned in 1788.
"I agree w/ you on the last bit, but if the way that the Const is set up is for the legislative branch to pass laws and for the courts to determine/ interpret whether they are constitutional or not--which the courts clearly have..."
This is not the whole story about how the Const is set up. The Const tells the gov't certain things that it can do. Within that set of things that it is allowed to do, it is the legislative branch that passes the actual laws, the executive that enforces them, and the judicial that interprets difficult case applications that might come up. But this nice little division of powers does not apply to things that aren't supposed to be done in the first place. If Congress passes an unConstitutional law, then the executive has no obligation to enforce it, the Courts have no obligation to rule on it, etc. To modify President Jackson, "Congress has passed their law. Now let's see them enforce it."
I admit that it is complicated to know what an individual citizen should actually do when unConstitutional laws are passed. Take McCain-Feingold, for one example. Such a thing clearly violates the 1st Amendment as the framers would have intended it, but even more importantly (since the bill of Rights was not in the original Constitution that was ratified) setting limits on how much of their own money people are allowed to donate to causes they believe in (including political) is not a power given to Congress anywhere in the Constitution (even if there was no 1st Amendment, this would still be true). Yet Congress passed it anyway, and the Courts upheld it. It's Alice in Wonderland. But what can we actually do about it? I'm not sure. I find myself arguing about it on a north Georgia political blog. Some may choose a different path, I suppose...
If the gov't refuses to do what it is supposed to do, then the system falls apart. This is true of any system. I'm not sure what the solution is, although I will gently remind us all that Jefferson said that you probably need a revolution ever couple of generations or so, just to keep the government in check. I don't advocate blood-letting in the streets, but we DO need a government that fears the people.
"The fact that they haven't suggests that, in the marketplace of ideas, your's aren't very popular, so why should we live by them?"
The 'marketplace of ideas' is an ongoing phenomenon. It is happening right now as we discuss these things. Ideas that aren't popular at one time become popular later. Since I'm not holding a gun to anyone's head, I think we can have a discussion about my ideas. And I don't think you can run me off by simple declaring victory b/c my ideas aren't currently popular. That kind of thinking would never allow for any largescale reform, ever.
"But at the same time, you can't claim that the Bible teaches that adultery is okay."
But apparently polygamy is, given all those wives that various characters had, right?
hehehe...well, women were property back in Biblical times so it was OK for the owner to sire children on any woman that was his lawful property - that wasn't aldutery. It was only aldutery (or something akin to it) if you "had the use of" another man's property without his permission. It was no worse than milking his goat without permission (no dirty jokes, please).
So, how does this relate to the discussion? It's all about private property rights and whether the government should be taxing your property!
I think polygamists should be taxed in accordance to how many wives they "own". Come to think of it, JMac should be happy we don't tax daughters too since those were also considered property in the time of the Great Patriarchs. ;-)
Al
Actually, Al, I would argue you are misundrstanding the Old Testament teachings about adultery, marriage, and property rather significantly. But let's stay on topic.
Remember, I said that reasonable people can disagree as to what the Constitution means. But there are certain things that are really not up for debate.
In the analogous case of the bible, polygamy might be a case of reasonable disagreement, but adultery is not. Likewise, while we might disagree on whether the Constitution gives implied or only explicitly powers to Congress, there is really no room for disagreement that it, for instance, forbids the establishment of Baptists as the national church or that it allows citizens to build up weapons stockpiles for the purpose of operating a private militia.
Just two examples selected at random. Now, if Baptists want to be established, or if gun-haters don't want anti-government paranoiacs stockpiling weapons, then the Constitution needs to be changed. But none of us has any right to do what we tend to do today, which is to honor the Constitution with our lips while ignoring it with our actual deeds.
"it allows citizens to build up weapons stockpiles for the purpose of operating a private militia."
As you know, the 2nd Amend reads: "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."
So, actually, there is plenty of room for interpretation here, as the Const says nothing about it being a Private militia. In fact, you could reasonably argue that the Second Amendment can be interpreted to mean that the militia needs state-sanction, given how militias worked in the 18th century and the amenders' understanding of such (given that, for ex, most farmers and others didn't own private stocks of weapons and that the local militias' weapons were typically held in govt stronghouses and handed out to militia members when needs required it --usually to fight off Indians). And it certainly does not give individuals as individuals the right to bear arms; the most generous reading in this regard is that it gives individuals who are part of the militia the right to bear arms.
"In the analogous case of the bible, polygamy might be a case of reasonable disagreement, but adultery is not"
the key, though, is to make sure that what WE mean by adultery is what the Bible's writers meant by it. So, in the absolute, yes, adultery is forbidden. But we may actually be talking about 2 different things --what we mean by it today (sleeping w/ someone married to someone else or, if you're married, sleeping w/ someone else) and what they meant by it then (if Al is correct, sleeping w/ a woman who is someone else's de jure or de facto property). This is, of course, the problem of trying to apply concepts from one era to another, given how concepts --even if using the same terminology-- change. This, then, is why the Original Intent folks (like Xon) are on shakey ground with trying to claim original intent re what's Constitutional today, since the meaning of so many concepts have changed over time.
A 'militia,' in 18th century usage, was by definition a private entity. It could be called up by the government if a need for defense arose, but this is just like if the local government were to call up, say, the local Chess club to put on an exhibition with the Russians. The fact that at that one competition the chess club represented the local government would not mean that the chess club was not a 'private' entity.
Militias are private citizens who stand ready to fight if need be. If their is a national need for defense, then they stand ready to do that. If there is a need to fight against their own tyrannical government, then they stand ready to that. It's the whole point of the amendment. To turn the militia into an overseen government entity defangs the whole intention of the amendment.
"In fact, you could reasonably argue that the Second Amendment can be interpreted to mean that the militia needs state-sanction, given how militias worked in the 18th century and the amenders' understanding of such (given that, for ex, most farmers and others didn't own private stocks of weapons and that the local militias' weapons were typically held in govt stronghouses and handed out to militia members when needs required it --usually to fight off Indians).
The fact that 'most' farmers didn't in fact own their own weapons is irrelevant (though I've never heard that before). Even if most did not, that entails that some of them did. Likewise, where weapons were normally stockpiled is irrelevant. The point is that the people are to remain free to form their own militias and to regulate them (i.e., to train regularly), and this requires the people to "keep" (clearly they can keep them in their own house if they so choose) and to "bear" (they can even have their gun with them in public if they so choose) arms.
"And it certainly does not give individuals as individuals the right to bear arms; the most generous reading in this regard is that it gives individuals who are part of the militia the right to bear arms."
I am prone to agree with you there. See, reasonable people can discuss these things. :-) Of course, this is an easy qualification to meet for any individual citizen. I have no doubt that if the amendment were taken seriously under its original intent that we would suddenly have a lot more militias (practically every gun-owner would join one, I'd imagine). And this would be a good thing, b/c it would force a government with tyrannical ambitions to think twice. Again, government should fear the people, not the other way around. A common sentiment among the founding fathers.
Again, it is a complete 180 to say that what the 2nd amendment is giving us is government-sanctioned arms-bearing, since (again) the whole idea is that a regularly exercising militia is necessary to maintain a 'free state.' IOW, a militia is necessary to keep the people free. Free from tyranny. And tyranny usually comes from government. It was kind of a big concern to folks back then. :-) The idea that they would win independence from the British, and then turn around and institute a new government that had the authority to keep people from ever rebelling again is completely backwards.
"the key, though, is to make sure that what WE mean by adultery is what the Bible's writers meant by it. So, in the absolute, yes, adultery is forbidden. But we may actually be talking about 2 different things --what we mean by it today (sleeping w/ someone married to someone else or, if you're married, sleeping w/ someone else) and what they meant by it then (if Al is correct, sleeping w/ a woman who is someone else's de jure or de facto property). This is, of course, the problem of trying to apply concepts from one era to another, given how concepts --even if using the same terminology-- change. This, then, is why the Original Intent folks (like Xon) are on shakey ground with trying to claim original intent re what's Constitutional today, since the meaning of so many concepts have changed over time."
I'm all about tracking different usages of words through time. But this isn't Alice in Wonderland. In general we are quite able to keep track of the different meanings, and to take them into account.
Certainly, if you catch me using a word from the Constitution in a 21st century that wasn't operative in the 18th century, then call me on it. But you can't write off the entire discussion of 'origianl intent' with this sweeping claim that 'words have different meanings at different times.' That's just cheap skepticism.
"A 'militia,' in 18th century usage, was by definition a private entity. It could be called up by the government if a need for defense arose, but this is just like if the local government were to call up, say, the local Chess club to put on an exhibition with the Russians."
Yes and no. They were often headed by some private individual (often a former officer in the army or some landowner or other big whig) but they were sanctioned by the state. As far as I know, there were no "non-sanctioned militias" floating around and if they were they quickly felt the imprint of the govt to stamp them out (Shay's rebellion, anyone?). Although militias were sometimes used to fight Indians and could, in theory, fight tyranical govts, let's not forget that the big political power base in this period was Virginia and the big wigs there were worried particularly about slave revolts --that's why they wanted the power to have militias, not so much to fight against tyranical govts but to have the capacity to put down slave revolts, of which there were quite a few in the 18th century; the militia was a way of having the capacity to get those white yeomen and others to go and put down revolts but w/out giving these whites permanent access to weapons lest they turn them on the plantocracy. You can't understand the Constitution --eg w/ its electoral college system designed to give southern states w/ few whites and lots of slaves advantages in choosing the President-- w/out understanding the context w/in which it was written and how slavery shaped this (which is why they didn't ban the latter, as we've already discussed, and why it wasn't banned constitutionally till the 1860s). This is not to say it's ALL about slavery, but that does shape so many things re the way govt operated then.
"The fact that 'most' farmers didn't in fact own their own weapons is irrelevant (though I've never heard that before). Even if most did not, that entails that some of them did. Likewise, where weapons were normally stockpiled is irrelevant."
A couple of things:
1) yes, few people actually owned personal weapons until after the Civil War, which is when private ownership really took off as there were so many guns floating around after the war. If you look at probates of wills etc from the 1780s guns are rarely mentioned and, given how expensive they were, this is particularly unusual if they were indeed widespread. They're also not mentioned much in contemporary writings of the time (eg diaries, letters etc)
2) no, it's not irrelevant, because it again goes to the intent of the Amendment writers. Their understanding was that most members of the militia would be armed by govt-owned weapons stock-piled in various arsenals.
S0, 3) where they were stock-piled is not irrelevant.
Look, if we're going to do the original intent gig then we have to (try to) understand what those guys understood as the way the world worked back then, which was that: a) very few people had their own weapons; b) the weapons they would be given to act as part of the militia would be given them from govt arsenals in times of emergency (Indian attacks, slave revolts). Only then does interpreting the 2nd Amendment make sense. Certainly, the understanding of it changed significantly after the Civil War. That's fine, but then if you're really going to argue for original intent you have to be prepared to accept that the meaning which became widespread after the Civil War (and which is pretty much dominant today amongst entities like the NRA) isn't the original intent of the framers.
"I'm all about tracking different usages of words through time. But this isn't Alice in Wonderland. In general we are quite able to keep track of the different meanings, and to take them into account."
I beg to differ. Think of many a word --freedom, democracy, wilderness, nature, race-- and myriad others and their meanings have changed in ways that it's very difficlut for us to know what their original intent/ meaning was precisely.
"But you can't write off the entire discussion of 'origianl intent' with this sweeping claim that 'words have different meanings at different times.' That's just cheap skepticism.""
Again, I disagree. It goes to the whole heart of the debate. It's, in fact, central to the debate over original intent. Ergo, I don't think I am writing the whole thing of via cheap skepticism. What I am saying is that today, 2 and a bit centuries later, it's very difficult to know w/ absolute certainty what the writers meant in a lot of areas and w/ their use of a lot of words. If we were certain of what all words used 200 yrs ago (not just in the Const) meant then then we wouldn't have all these English professors writing close textual analyses of various texts to try to deconstruct their meanings. Likewise w/ the Bible --if there were no possibilities of misunderstanding how words and ideas have changed over time then we wouldn't have so many different interpretations and branches of religious practice; the meaning would be patently clear for all to see. Obviously, it's not.
"Ergo, I don't think I am writing the whole thing of via cheap skepticism"
Should be "...whoel thing ofF..."
"Should be "...whoel thing ofF...""
God, I can't write straight tonight! Should be "...whole thing off..."
Anonymous, I said "in general" we can track the different meanings of words. You then cited examples of words that have changed greatly (although, even here, apparently we have tracked the changes or else you couldn't bring them up as examples).
A little personal background, so we don't keep lecturing each other on stuff when we probably are already on the same page. I'm finishing up my dissertation for a PhD in philosophy at UGA. My diss deals with the intersection of religious and philosophical ideas during the colonial era (my diss. is on Jonathan Edwards, specifically). I am competent to teach both ethics and political philosophy. And one of my favorite seminars at UGA was on the philosophy of language.
So, I know, believe me, that words change meanings, that translatoin from one time to another can be difficult, etc.
I'll have to get back to you on the details of the history of guns, etc.
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