Too long, yet not long enough: attempting to defend an originalist equal protection in a blog post.

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18 Responses

  1. Joe says:

    I think at the Volokh Conspiracy post that Mark Field provided a good argument that somewhat parallels this one, including quotes. He also responds to critics.

  2. Brett Bellmore says:

    Perhaps relevant: James Madison to Andrew Stevenson, on the general welfare clause

    I believe the idea of the “general welfare” is somewhat related to what you’re suggesting: That the legislature is barred from pursuing the specific welfare of particular groups and individuals, but must restrict itself to measures intended to advance everyone’s welfare. This implies equality under the law, as a measure treating different people differently would not be attending to the general welfare, but only the welfare of those advantaged.

  3. Shag from Brookline says:

    Perhaps Brett’s point is that back in Madison’s day, the general welfare clause could not benefit welfare legislation for slaves and that post-Recconstruction Amendments the same applies to former slaves and their succeeding generations subjected to Jim Crow despite the enforcement clauses of such Amendments. Of course, historically equality has seesawed over the years. But those changing demographics cause concern for Brett and his ilk who may one day be considered “those advantaged.”

  4. Brett Bellmore says:

    Shag, I appreciate your persistance in attempting to paint me as some kind of Bull Connor, but I’ve never been a member of the DNC.

    Can’t you leave off for a moment, and seriously discuss the topic?

  5. Shag from Brookline says:

    I have mad no attempt ” … to paint [Brett] as some kind of Bull Connor, ….” I was born in 1930 and recall well Bull Connor’s role as a government official in the 1950s-60s challenging civil right activities that included violence. No, Brett, is not a Bull Connor. A bull Connor could not survive in this day and age. I have at other venues described Brett, a self-described “anarcho-libertarian,” as physically harmless. Brett is not a government official. While Brett is a Second Amendment absolutist, he is harmless in exercising his First Amendment rights, as am I. Brett’s racial views are all over the blogosphere for all, including NSA, to check out with a little Googling. Brett’s goal is clearly not to discuss the topics of blogs he comments on. Rather, Brett’s goal is to express his views, whether relevant or not. I merely point to Brett’s vitriolic views. In #3 I made reference to what I considered Brett’s “point” in his #2 which diverged from the post. Brett’s response is Bull Connor painting. But that’s bull. Brett is a harmless pussycat with an agenda reflecting that of Sen. Lindsey Graham (Cracker, SCar) during the 2012 presidential election that there are not enough angry white men out there to defeat the first African American President’s bid for reelection. So when Brett gets serious, I’ll get serious with the topic at hand that Brett evades with his agenda. Perhaps Brett chose his I’m-Not-Bull Connor response to address those few who may be intimidated by the photo accompanying his comments at Balkinization. (I’m not one of those few as the depiction is more cartoonish than intimidating.)

  6. Joe says:

    I think Brett’s “general welfare” reference does reflect one of the aspects of the federal Constitution that suggests there is an equal protection component that applies to the federal government. In practice, the government is going to in specific cases have programs that assist specific groups (e.g., vets), so that can’t be taken too strictly as a set rule. But, the general idea is worth noting.

  7. Shag from Brookline says:

    Is it in the general welfare interests of America to provide for the relatively limited number of military veterans who have served in America’s defense (in comparison to the large number who have not so served)? I think so. And there are many more examples of how the general welfare is served by adopting programs for specific groups. This advances everyone’s welfare, except perhaps an aanarcho-libertarian.

  8. Brett Bellmore says:

    Let’s say that the federal government defends the territory of the US in a war. That’s certainly something that would be for the “general welfare”, even though you might end up paying the soldiers and munitions suppliers.

    OTOH, just giving stuff to some specific group for the purpose of benefiting just them, rather than paying them for helping everybody? Not general welfare.

  9. Joe says:

    “just giving stuff to some specific group for the purpose of benefiting just them”

    For instance, a subsidiary to a growing industry, let’s say carriages, could be said quite reasonably to be important for the general welfare since it provides a necessary resource and promotes interstate commerce. This is a general benefit.

    The term suggests some concern for equal respect (the Preamble is for the welfare of society generally) but it is so general of a term that its limits are unclear in practice. A benefit to one group (vets or whatever) very well might be for a general end. It’s a factual thing.

  10. Brett Bellmore says:

    I think you’re diving down from the level of actual generality, (Establish the rule of law, prevent invasions, institute a patent and postal system, and so forth.) to something more specific, a level where sophistry abounds. But I think this misses the point, which is that “general welfare” is a limitation on the enumerated powers, not an addition to them. So, lacking a power to do something, the claim that doing it would be for the general welfare wouldn’t get you anywhere.

  11. Joe says:

    The term “general welfare” is broad enough that calling it a “limitation” is debatable — the Constitution as a whole expanded federal power significantly. It is not “sophistry” to cite examples of this.

  12. Brett Bellmore says:

    The Constitution expanded federal power considerably over the Articles of Confederation. Which is not to say, without limit.

  13. Shag from Brookline says:

    And Amendments to the Constitution, including especially the 13th, 14th and 15th, expanded federal power considerably over the the original Constitution, especially the enforcement clauses of those Amendments. Perhaps Brett believes that the “General Welfare” provision trumps or limits these enforcement clauses. Brett apparently doesn’t believe in “Wholeisticly” reading the Constitution.

  14. Brett Bellmore says:

    Perhaps I believe they never got around to amending the interstate commerce clause to allow regulating things that are neither commerce nor genuinely interstate. Or a lot of the other expansions of power which have been claimed in the last 80 years.

  15. Joe says:

    It’s not debated that there are limits to the Constitution. OTOH, the term “general” welfare is so vague and open-ended that it simply isn’t much of one except as a guideline for the political processes. There are as noted lots of cases where even programs that help specific groups will also benefit the general welfare. There are exceptions, of course, but given the scope of things, they are not that notable generally speaking.

  16. Brett Bellmore says:

    I’m not the first to observe that everything that gets in the way of claims of further federal power ultimately ends up being viewed as “vague”.

  17. Shag from Brookline says:

    The original Constitution was “vague” on slavery, not using that word, “slave.” or similar words. But the practice of slavery was not vague. Brett continues to suffer from chronic “Wick-burn” for which there is no salve. Perhaps Brett believes that the sale of slaves across state lines pre-Civil War Amendments was not commerce.

  18. Joe says:

    The term “general welfare” is vague, so what does #16 get you? It doesn’t change what I said. The term itself, unlike various other specific demands (such as the rule on imports applied in Art. I, sec. 10, cl. 2), is so general in nature that as a check on federal power as compared to a means to expand it (with the various limits found in the Constitution), it is rather lacking.