Originally posted by Destineer:
quote:You ANAL?
IANAL, but perhaps that's the constitutional difference between PPACA and this bill.
![[Laugh]](graemlins/laugh.gif)
![[Cool]](cool.gif)
![[Hat]](graemlins/hat.gif)
quote:You ANAL?
IANAL, but perhaps that's the constitutional difference between PPACA and this bill.
quote:I was thinking of it as a verb. So "Do you?" would be more grammatical.
Are you?
quote:Don't we all?
Originally posted by Destineer:
quote:You ANAL?
IANAL, but perhaps that's the constitutional difference between PPACA and this bill.
quote:Except that this is worded that "which sum the said master is hereby authorized to retain out of the wages of such seamen."
it constitutes an employer mandate, not an individual mandate (ship owners were required to pay a tax per sailor, but individual sailors were not required to do so).
quote:The payment may (unless I'm misinterpretting 1790s legal-ese) be deducted from the sailor's income. Or the company can cover it in some other way. It's not an individual mandate; it's an institutional mandate. I don't know if those are constitutionally different, but (to me) they seem fairly different in practice.
Originally posted by Glenn Arnold:
quote:Except that this is worded that "which sum the said master is hereby authorized to retain out of the wages of such seamen."
it constitutes an employer mandate, not an individual mandate (ship owners were required to pay a tax per sailor, but individual sailors were not required to do so).
That is to say the payment is made by reducing the wages of the seaman, so yes, the onus was on the employer to see to it that the tax was paid, but the employee is officially the one providing the funds.
And IANAL either, but I see no such constitutional difference.
quote:I think that "The Founding Fathers wanted it" is not great defense in terms of actual morality. The Founding Fathers decided black people counted as 3/5ths of a person. But in terms of constitutionality... given that these people wrote the constitution, and that the law WASN'T overturned when it was actually relevant strikes me as pretty damn convincing.
Originally posted by fugu13:
There isn't necessarily a constitutional difference. Of course, that means they could both be unconstitutional. And that founding fathers were involved in the bill is the flimsiest of defenses, for several reasons.
1) Constitutionality is not immutable.
2) The Constitution was a compromise document between vastly differing camps; that some subset of people involved think something is Constitutionally justified doesn't even come close to meaning the majority would.
3) The reason we have judicial review in the first place is because founding fathers were perfectly capable of acting unconstitutionally.
quote:Except there are dozens (maybe more) of laws and practices of the time that have since been found unconstitutional. There's also another big reason: Marbury vs Madison didn't occur until 1803, and they didn't do judicial review again after it until 50 years later (despite numerous unconstitutional acts). That nobody pushed this particular act to be a groundbreaking instance of judicial review is entirely unconvincing about it being constitutional.
But in terms of constitutionality... given that these people wrote the constitution, and that the law WASN'T overturned when it was actually relevant strikes me as pretty damn convincing.
quote:Fugu has a point. Not to mention at this early stage, Federalists were most definitely pushing the boundaries of what their new government could do quite vigorously. Judicial review, in its early days was used by James Marshall quite consistantly so as to give power to the federal government. It was not until after his tenure that that trend began to change.
Originally posted by fugu13:
quote:Except there are dozens (maybe more) of laws and practices of the time that have since been found unconstitutional. There's also another big reason: Marbury vs Madison didn't occur until 1803, and they didn't do judicial review again after it until 50 years later (despite numerous unconstitutional acts). That nobody pushed this particular act to be a groundbreaking instance of judicial review is entirely unconvincing about it being constitutional.
But in terms of constitutionality... given that these people wrote the constitution, and that the law WASN'T overturned when it was actually relevant strikes me as pretty damn convincing.
quote:My reading of the bill is that it is assumed that the tax will be paid by deducting from the sailor's income. Your emphasis on the word "may" implies that the deduction was listed as one of several options, when in fact it is the only suggested method.
The payment may (unless I'm misinterpretting 1790s legal-ese) be deducted from the sailor's income.
quote:
the master or owner of every ship or vessel of the United States, arriving from a foreign port into any port of the United States, shall, before such ship or vessel shall be admitted to an entry, render to the collector a true account of the number of seamen that shall have been employed on board such vessel since she was last entered at any port in the United States, and shall pay, to the said collector, at the rate of twenty cents per month for every seaman so employed ; which sum he is hereby authorized to retain out of the wages of such seamen.
quote:This article addresses the current conservative tactic of dismissing anything they don't like as "unconstitutional" by claiming that "the Founding Fathers wouldn't have intended it." The recent addition of a requirement that all new bills must be accompanied by constitutional justification is a lame procedural requirement intended to reinforce the notion that liberal bills are somehow less constitutional than conservative bills. This is a "burden of proof" fallacy. The conservatives have no evidence that the health care bill would not have been approved by the founding fathers, but they are insinuating that it wouldn't have been, and demanding that supporters of the bill find constitutional justification, which has never been a requirement.
And that founding fathers were involved in the bill is the flimsiest of defenses, for several reasons.
quote:The author's response:
Judicial review, in its early days was used by James Marshall quite consistantly so as to give power to the federal government. It was not until after his tenure that that trend began to change.
Adams was the same president who signed the Alien Sedition act which today would be laughable in its constitutionality.
quote:
As for the Alien & Sedition Act, you do make a great point. Jefferson did believe it violated the 1st and 10th Amendments and, frankly, I agree.
However, here is the difference – because the Alien & Sedition Act expired when Adams’ term of office concluded – which was before the Marbury v. Madison decision that held that the Supreme Court could rule on the constitutionality of legislative acts, the court never had the opportunity to review it. There were, however, references in the years following that indicated that had the court been able to review it, they surely would have found it unconstitutional.
“Sick Sailors”, however, survived well into the era of the Supreme Court review and beyond. It was never challenged or overruled as unconstitutional.
I do see and hear your point – but I don’t think you can argue that because one law was passed two days before that would likely have been found to be unconstitutional that it necessarily follows the next law also would.This is particularly true when SCOTUS would have had the opportunity to review the law in question and it never did.
quote:Was there some case over this that I'm not aware of? The court cannot take up an issue without a complaint. Without a case, the court never even had the opportunity to consider constitutionality (not that, again, it would have been likely to -- lots of things passed in that 50 year gap were unconstitutional and they weren't overturned until later).
This is particularly true when SCOTUS would have had the opportunity to review the law in question and it never did.
quote:While that claim can certainly be contested, he has hardly dismissed it, and is guilty of flawed, trivially undermined reasoning in claiming he has.
So much for the claim that “The Constitution nowhere authorizes the United States to mandate, either directly or under threat of penalty….”
quote:
As for "surviving well into the era of the Supreme Court review and beyond", it was 50 years until they applied judicial review again!
quote:
The program eventually became the Public Health Service, a government operated health service that exists to this day under the supervision of the Surgeon General.
quote:Which is to say, that nobody brought such a complaint. Why is it even a question whether this law is constitutional if no one has a complaint about it?
Was there some case over this that I'm not aware of? The court cannot take up an issue without a complaint.
quote:Seriously? There are laws that go unchallenged for long periods of time that are later found unconstitutional all the time. What's more, there needed to be not just a complaint, but a complaint that was not resolved at a lower court -- choosing not to appeal something is not ironclad evidence (or even evidence at all) that it wouldn't win on appeal. The argument you just made is nearly equivalent to arguing that because no law in that 50 year period was declared unconstitutional, they must all have been constitutional. And that's ludicrous.
Why is it even a question whether this law is constitutional if no one has a complaint about it?
quote:I just quoted him making that point explicitly! Please go back and reread my posts, and the original news story, which explicitly makes exactly the argument that I've completely shut down.
You are arguing that his argument is weak, against something that is not his point in making the argument.
quote:Of course. The former is a highly debatable point, as I've mentioned a few times. The article, however, dwelled at considerable length on the idea that this previous act not having been overturned somehow proved the current act isn't unconstitutional, and did so with very, very flawed arguments.
And from what I can tell, you aren't even arguing that the law wasn't constitutional, only that he makes a weak argument for why or whether it was.