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House Republicans Set To Sacrifice Limited Government On The Altar Of Abortion Politics

abortion-law

Earlier this year, Republicans in the House dropped at the last minute what would have been a vote on a bill that would ban virtually all abortions nationwide after the 20th week of pregnancy, something which Republicans had promised to do since before the 2014 elections. Ostensibly, the bill was dropped because of disputes inside the House GOP Caucus raised mostly by Republican women who were concerned that the restrictive language of the bill went too far and would harm the party’s image with young and female voters. Not surprisingly, many prominent conservatives were upset with the move, which they saw as a setback on the eve of the annual march to mark the anniversary of the Supreme Court’s decision in Roe v. Wade. Four months later, The Weekly Standard reports that the House is set go vote on a new version of the bill this week:

The House of Representatives will vote on a bill next week that would ban nearly all late-term abortions, House majority leader Kevin McCarthy tells THE WEEKLY STANDARD. The legislation would establish a national limit on abortion at 20 weeks after conception—five months into pregnancy—which is the gestational age at which infants can of feel pain and survive long-term if born prematurely.

“Life is precious and we must do everything we can to fight for it and protect it,” said McCarthy, a California Republican. “Our commitment for the House to consider this important legislation has been steadfast and I am proud of the work of our members to prepare this bill for House consideration next week.”

In 2013, the House passed the bill, called the “Pain Capable Unborn Child Protection Act,” which included exceptions in the cases of rape, incest, and when a physical health issue endangers the life of the mother. But an effort to pass identical legislation in the new Congress was scrapped in January on the eve of the annual March for Life because some GOP members, led publicly by Rep. Renee Ellmers of North Carolina, objected to the bill’s reporting requirement for late-term abortions in the case of rape. The bill required the crime to be reported to law enforcement officials at any point prior to performing a late-term abortion.

According to House Republicans, that requirement has been removed from the bill. Instead, the legislation requires abortion doctors to ensure that victims have received either medical treatment or licensed counseling at least 48 hours prior to the late-term procedure. With that change, the bill has assuaged the concerns of those Republican members while still garnering strong support of national pro-life groups, including the National Right to Life Committee and the Susan B. Anthony List.

“I’m proud we’ve gotten to a point where we found a consensus between our members and the pro-life groups out there,” said Rep. Diane Black of Tennessee.

“We will have even stronger support than we did in the last Congress,” said Rep. Chris Smith of New Jersey, a leading pro-life advocate in the House. “It will be good to have a truly unified pro-life conference.”

Even without the setback in Congress, the forces behind this ban have been having a great deal of success at the state level, although it’s presently unclear whether any of those state-law bans will survive the inevitable court challenges. On the Federal level, though, Glenn Reynolds notes in his column at USA Today that the House GOP’s push for this legislation is revealing some rather obvious contradictions between their “pro-life” principles and their commitment to limited government and the Constitution:

The problem is that Congress is supposed to exercise only the powers enumerated in the Constitution, and those powers don’t include regulating state medical procedures. (The federal government lacks even the power to criminalize murder as such: All federal “murder” statutes punish murdering someone in the course of violating some other federal law because unlike states, the federal government has no general “police power.”)

If you scroll through the powers enumerated to Congress in Article I, Section 8 of the Constitution, you’ll find such things as establishing uniform rules of bankruptcy, raising and supporting armies and navies, and establishing post offices and post roads. What you won’t find is anything that supports congressional power to impose a time limit on abortion.

The standard end run around this is to invoke the Commerce Clause, that is, Congress’ power to regulate commerce “among the several states.” But the performance of an abortion in a local clinic is commerce among the states only if you adopt an unjustifiably expansive reading of the Commerce Clause that supports near-unlimited government power, so the party of small government ought to be reluctant to do so. Some might labor under the misapprehension that the Supreme Court has already upheld Congress’ power to regulate abortion under the Commerce Clause. In fact, inGonzales v. Carhart, as Justice Clarence Thomas noted, that question was not addressed by either the Supreme Court or any lower court.

(…)

[M]embers of Congress take their own oath to preserve the Constitution, which imposes an independent obligation on them to take the Constitution seriously, not just to do whatever the Supreme Court will let them get away with. If, as Republicans in Congress keep telling us, they support limited government, then they need to support limits on government even when those limits stand in the way of doing something they want to do.

Leaving aside the debate on the specific issue of whether most abortions should be banned at twenty weeks, or whatever hard deadline one might wish to impose, it strikes me that Reynolds get the real problem with what House Republicans are proposing to do here basically right. Whatever one might say about the legality or propriety of a state law ban on abortion at twenty weeks, when the matter is put forward Congress rather than a state legislature then the proponents of the bill must explain exactly where in the Constitution Congress is granted the power to do what it proposes to do here. As Reynolds notes, the advocates of the bill will take the position that the Commerce Clause grants them all the authority that they need here. Given the extent to which the Courts have expanded the reach of the Commerce Clause well become its intended meaning, it’s entirely possible that a future Supreme Court would agree with that position. For example, in 2003 Congress passed a law banning so-called “partial birth” abortions nationwide. When the lawsuit challenging that law made it to the Supreme Court in the form of a case called Gonzalez v. Carhartwhich Reynolds mentions above. In that case the Court upheld the law by a 5-4 vote, with only Justice Thomas and Justice Scalia raising in a concurring opinion the question of whether Congress actually had the authority under the Constitution to ban abortion of any kind. However, the issue of Congressional authority was not a central part of the majority opinion and, thus, this issue remains for a future case.

At its core, Reyonlds is correct to point out that there is a rather obvious contradiction between the limited government principles that Republicans claim to stand for, along with their insistence that they stand opposed to the expansive views of Federal power under the Commerce Clause that they are now relying on, and their support for a bill such as this. If nothing else, it makes clear that their support for limited government and all that flowery rhetoric that we hear from Republicans on a regular basis about the Constitution is by and large nonsense. Three years ago, Republicans were telling us that the Commerce Clause did not give Congress the power to require everyone to have medical insurance. Now, they are telling us that it does give them the power to ban a medical procedure nationwide. The hypocrisy is really quite apparent and, if nothing else, it shows that when it comes down to a choice between abiding by their principles and pandering to their base, Republicans have made their choice.

Realistically, of course, this bill is not likely to ever become law. It will likely pass the House, of course, unless it gets withdrawn at the last minute like it did in January. After that, though, it’s fate seems to be predetermined. Senate Democrats are likely to do whatever they can to block consideration of this bill when it makes its way to the upper chamber through the filibuster and other means. Even if the bill did pass the Senate, President Obama would veto it and there would not be sufficient votes in either the House or the Senate to override the veto. To a large extent, then, this is a purely symbolic exercise by the House Republicans designed more to fulfill a campaign promise to the pro-life movement than anything else. Nonetheless, it is a fairly stark example of where the GOP’s priorities are.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Jeremy R says:

    It will be interesting to see if Rand Paul will publicly endorse this legislation, given he’s trying to project an image of moderation for the presidential campaign and given his own abortion bill is far more extreme:

    http://www.paul.senate.gov/files/documents/LCA.pdf

    “The Life at Conception Act legislatively declares what most Americans believe and what science has long known- that human life begins at the moment of conception, and therefore is entitled to legal protection from that point forward,” Sen. Paul said. “The right to life is guaranteed to all Americans in the Declaration of Independence and ensuring this is upheld is the Constitutional duty of all Members of Congress.”

    https://www.govtrack.us/congress/bills/113/s583/text

    To implement equal protection under the 14th article of amendment to the Constitution for the right to life of each born and preborn human person.

    Short title

    This Act may be cited as the Life at Conception Act of 2013 .

    Definitions
    In this Act:

    (1) Human person; human being

    The terms human person and human being include each member of the species homo sapiens at all stages of life, including the moment of fertilization, cloning, or other moment at which an individual member of the human species comes into being.

    From Sen. Paul’s letter fundraising for the National Pro-Life Alliance (sent late last year):

    http://www.theblaze.com/stories/2014/09/22/how-rand-paul-is-tackling-abortion-without-reversing-roe-v-wade/

    http://www.rightwingwatch.org/content/rand-paul-fundraises-personhood-group

    “For more than 40 years, nine unelected men and women on the Supreme Court have played God with innocent human life.

    They have invented laws that condemned to painful deaths without trial more than 61 million babies for the crime of being “inconvenient.”

    In 1973, the U.S. Supreme Court’s Roe v. Wade ruling forced abortion-on-demand down our nation’s throat.

    In the past, many in the pro-life movement have felt limited to protecting a life here and there — passing some limited law to slightly control abortion in the more outrageous cases.

    But some pro-lifers always seem to tiptoe around the Supreme Court, hoping they won’t be offended.

    Now the time to grovel before the Supreme Court is over.

    Working from what the Supreme Court ruled in Roe v. Wade, pro-life lawmakers can pass a Life at Conception Act and end abortion using the Constitution instead of amending it.

    That is why it’s so urgent you sign the petition to your Senators and Congressman that I will link to in a moment.

    Thanks to the results of the last election, you and I are in a better than ever position to force an up or down roll call vote on the Life at Conception Act.

    A Life at Conception Act declares unborn children “persons” as defined by the 14th Amendment to the Constitution, entitled to legal protection.

    This is the one thing the Supreme Court admitted in Roe v. Wade that would cause the case for legal abortion to “collapse.”

    If you and other pro-life activists pour on enough pressure, pro-lifers can force politicians from both parties who were elected on pro-life platforms to make good on their promises and ultimately win passage of this bill.

    But even if a Life at Conception Act doesn’t pass immediately, the public attention will set the stage to defeat radical abortionists in the 2016 elections.

    But I’m sure you’ll agree pro-lifers cannot just sit by watching the slaughter continue.”

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  2. Rafer Janders says:

    Can we please stop this sad charade that conservativse care, at all, about so-called “limited government”? The only reason they started using this smokescreen in the first place was as a rhetorical tactic to hamper the federal government’s efforts to stop them enslaving and then, during Jim Crow, terrorizing blacks. No party which actually wants big government to snoop into the sex lives of its citizens, and which wants unlimited military spending on the military, the biggest government entity of all, actually cares one whit about “limited government.” It’s a scam, a grift, a charade, and only the dumbest and most gullible are still falling for it.

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  3. Mu says:

    Limited government stops when it endangers the patriarchy. Can’t be a successful socon if you can’t control your women’s urges. Even “libertarian” posterboy Rand Paul is a staunch pro-lifer, we need to keep the government out of the health business, unless it involves women’s reproductive treatments.

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  4. al-Ameda says:

    “Life is precious and we must do everything we can to fight for it and protect it,” said McCarthy, a California Republican. “Our commitment for the House to consider this important legislation has been steadfast and I am proud of the work of our members to prepare this bill for House consideration next week.”

    Evidently, life is precious … until birth.

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  5. C. Clavin says:

    Limited Government is one level of Republican hypocrisy.
    But can anyone really take this comment seriously coming from Republicans?

    “…Life is precious and we must do everything we can to fight for it and protect it…”

    Unless of course it’s a black kid selling single cigarettes on the street in NYC.
    I fail to see how an intelligent person can vote Republican these days.

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  6. stonetools says:

    The hypocrisy is really quite apparent and, if nothing else, it shows that when it comes down to a choice between abiding by their principles and pandering to their base, Republicans have made their choice.

    Certainly, libertarians fantasize about Republicans being truly a party of limited government. But in reality , they have always been the party of government by and for certain constituencies ( big business,the defense establishment, so-cons, racial bigots). So no, I don’t see any clash between pandering and their principles. I see the Republicans doing as they have done since 1980(if not 1964).
    This has been another example of libertarian fantasy crashing headfirst into unyielding reality. Sorry, Doug.

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  7. HarvardLaw92 says:

    Kabuki …

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  8. Jenos Idanian #13 says:

    Where the hell was the “right to abortion” found in the Constitution in the first place? Oh, yeah, in the “penumbras” of an “implied right.” So why the hell can’t the same logic be applied here?

    And to the uneducated here (who seem to be out in force), “limited government” means the government should be limited to areas where the federal government has legitimate Constitutional authority and concerns. I agree with Professor Reynolds here, who argues that abortion should be a matter left to the several states, but the argument being made here — that a viable fetus has certain rights, and the federal government has an interest and a duty to protect that viable fetus and its rights — is certainly debatable.

    BTW, did anyone actually read Professor Reynolds’ piece? He implicitly challenges the underpinnings of Roe v. Wade as an overreach of federal authority, and has done so explicitly in the past. So remember that when you’re cheering him on for disagreeing with this particular move, he’s coming at it from the opposite direction.

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  9. Gustopher says:

    The Supreme Court has ruled consistently to expand the commerce clause, and until we get a very different court, they will continue to do so. So, until then, it makes sense to use the commerce clause at least for matters where they care about the results more deeply than ideological purity.

    If one believes abortion is murder, then wouldn’t one use every tool at their disposal — even tools that they dislike — to eliminate it?

    Ideological purity is something that only the fringes expect — the far left, libertarians, and the far right. Everyone else expects a certain degree pragmatism.

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  10. HarvardLaw92 says:

    @Jenos Idanian #13:

    Reynolds has a history of challenging anything which isn’t explicitly enumerated in Article I as being congressional overreach. He’s another one of those folks who add a word to the 10th Amendment which isn’t actually contained in it.

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  11. stonetools says:

    @Jenos Idanian #13:

    And to the uneducated here (who seem to be out in force), “limited government” means the government should be limited to areas where the federal government has legitimate Constitutional authority and concerns.

    Heh, educate me, Jenos. Give me a precise list of what those areas are. Thanks in advance.

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  12. grumpy realist says:

    Well, speaking as a female, I resent the pro-lifers’ assumption that just because of my sex I automatically owe an unlimited duty to whatever shows up in my womb, whether it showed up there by voluntary or involuntary sex, whether I was trying to keep it from not existing through birth control, and whether it puts my body at risk or not.

    In too many cases, people use their religion as an instant authority figure to control people who don’t believe in their religion. Arrgh. So much for religious “freedom.”

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  13. Jack says:

    @Rafer Janders:

    Can we please stop this sad charade that conservativse care, at all, about so-called “limited government”? The only reason they started using this smokescreen in the first place was as a rhetorical tactic to hamper the federal government’s efforts to stop them enslaving and then, during Jim Crow, terrorizing blacks. No party which actually wants big government to snoop into the sex lives of its citizens, and which wants unlimited military spending on the military, the biggest government entity of all, actually cares one whit about “limited government.” It’s a scam, a grift, a charade, and only the dumbest and most gullible are still falling for it.

    I believe you have the whole Democrat/Liberal and Conservative thing confused. During Jim Crow, it is well documented that the Democrats opposed segregation and it was the Democrats who enslaved, and the Democrats who refused them the right to vote…but you keep making crap as you go…like normal.

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  14. gVOR08 says:

    Per Rand Paul:

    …science has long known- that human life begins at the moment of conception…

    Rand lied. Surprise. Science knows no such thing and cannot unless we agree on a definition of “human life”. This is a semantic argument, not scientific. FYI Wiktionary defines “life” as

    The state that follows birth, and precedes death; the state of being alive and living.

    What these holy rollers are really talking about is souls, and with occasional exceptions, they know better than to say so, because then it is clearly a matter of their religious belief. (A belief many Protestant organizations redefined after protesting abortion became profitable.)

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  15. HarvardLaw92 says:

    @grumpy realist:

    I tend to agree with Ruth’s take on the matter. Roe was correctly decided, but on the wrong basis. It should have been formulated on the basis of gender, not privacy. Doing so would have subjected these state policies to intermediate scrutiny and rendered many of them (IMO) unconstitutional.

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  16. Jack says:

    @C. Clavin:

    Unless of course it’s a black kid selling single cigarettes on the street in NYC.
    I fail to see how an intelligent person can vote Republican these days.

    Considering the police were simply enforcing a law…duly passed by a Democrat house and senate, and signed by a democrat mayor, of course in your mind that means a Republican killed Garner.

    You hypocrite.

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  17. Jenos Idanian #13 says:

    @stonetools: Feel free to educate yourself. Here’s a good start. Here’s a good followup. I’d offer a third link, but I’d probably unleash the Moderation Monster.

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  18. Barfour says:

    Why is this news? Haven’t Repuplicans been doing this for decades? Only complete morons still believe that the Republican party is the party of limited government, and that Repuplicans are fit to hold any public office in America.

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  19. stonetools says:

    @Jenos Idanian #13:

    Thanks for the links to the US Constitution and the Bill of Rights, but those documents do not clearly delineate the “areas where the federal government has legitimate Constitutional authority and concerns.” If it did, there wouldn’t be two centuries of court decisions on those questions.

    I guess you didnt know that. Educate yourself.

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  20. Jenos Idanian #13 says:

    @stonetools: I started off by saying I didn’t agree with the rationales for Roe V. Wade. Why don’t you cite the parts of the Constitution that gives the federal government the right to make such rules?

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  21. Rafer Janders says:

    @Jenos Idanian #13:

    And to the uneducated here (who seem to be out in force), “limited government” means the government should be limited to areas where the federal government has legitimate Constitutional authority and concerns

    Well, I guess we can’t have an Air Force, then. Army, sure, that’s in there. Navy, ditto. But I’ve looked and looked in the Constitution, and nowhere does it authorize the government to maintain an Air Force….

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  22. Ron Beasley says:

    The Republicans and their religious right allies are not in favor of limited government but the implementation of their version of Sharia Law. So much for the Republican attempt to avoid social issues.

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  23. Jack says:

    @stonetools:

    Thanks for the links to the US Constitution and the Bill of Rights, but those documents do not clearly delineate the “areas where the federal government has legitimate Constitutional authority and concerns.” If it did, there wouldn’t be two centuries of court decisions on those questions.

    The same place that says the government can dictate you buy health insurance.

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  24. HarvardLaw92 says:

    @Jack:

    The same place that says the government can dictate you buy health insurance.

    Ah, but the government didn’t dictate that. It gave you a CHOICE to either do that or be taxed if you refused to do so. Are you arguing that taxation is not a legitimate Article I power?

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  25. Jenos Idanian #13 says:

    @Rafer Janders: Well, I guess we can’t have an Air Force, then. Army, sure, that’s in there. Navy, ditto. But I’ve looked and looked in the Constitution, and nowhere does it authorize the government to maintain an Air Force….

    Oh, you’re ignorant there, too?

    First, there was the Army Air Corps — which means it was part of the Army. That became the Army Air Force, and then an independent branch under the Department of Defense. And “national defense” is one of the specific roles of the federal government.

    Your errors are in mistaking a strict constructionist for a literal constructionist, and forgetting the final clause of Article I, Section 8.

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  26. JohnMcC says:

    @Jenos Idanian #13: http://www.law.cornell.edu/wex/privacy

    It has been recognized since Justice Brandeis in 1890. It is a reasonable inference from the 1st, 4th and 5th Amendment.

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  27. Jenos Idanian #13 says:

    @HarvardLaw92: It gave you a CHOICE to either do that or be taxed if you refused to do so.

    It takes a very educated person to say that the government saying “do this or be punished” is actually presenting a “choice.” No common idiot could ever make such a stupid argument.

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  28. Jack says:

    @HarvardLaw92:

    Ah, but the government didn’t dictate that. It gave you a CHOICE to either do that or be taxed if you refused to do so. Are you arguing that taxation is not a legitimate Article I power?

    You mean penalty, right? Isn’t that what the Obama administration told everyone it was…until they actually needed to call it a tax in court to gain a modicum of legitimacy.

    No, taxing someone for existing is not a legitimate use of the Article I powers.

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  29. HarvardLaw92 says:

    @Jenos Idanian #13:

    Under a literalist interpretation of Section 8, Congress has the power to make laws only relevant to the establishment of an army or a navy.

    So, under your interpretation, it would have the power to legislatively approve an air wing of the Army or Navy, but not the power to establish an independent air force. You’re arguing against yourself here.

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  30. HarvardLaw92 says:

    @Jack:

    You mean penalty, right?

    No, I mean tax, which is what SCOTUS determined it to be. Congress has the Article I power to tax the public in furtherance of anything which, in its determination, advances the general welfare of the public. Are you arguing otherwise?

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  31. stonetools says:

    @Jenos Idanian #13:

    Google Roe V Wade , etc. Whether you agree with them or not, the Supreme Court did find such a right in the Consttiution.Your fight is with the Supreme Court, which has repeatedly upheld that right.(BTW, I agree with RBG and HL92 on this, but the law is what it is.).

    As Rafer has pointed out, the Supreme Court has repeatedly found that the federal government has powers not explicitly enumerated in the Constiution, many of which conservatives do not object to.

    I have yet to hear the conservatives calling for the abolition of federal funding for a seperate Marine Corps, and I expect I never will.

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  32. Rafer Janders says:

    @Jenos Idanian #13:

    First, there was the Army Air Corps — which means it was part of the Army. That became the Army Air Force, and then an independent branch under the Department of Defense. And “national defense” is one of the specific roles of the federal government.

    And if it was still the Army Air Corps,then fine. Army Air Force, fine. But Air Force by itself, no. While the Constitution does indeed provide that the Congress shall have the power to provide for the “common defense” of the United States, it then further specificies what that power entails:

    To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces;

    Again, lots of stuff in there about captures on land and water, and an army, and a navy, and land and naval forces, but nothing whatsoever about an air force or air forces…

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  33. Jenos Idanian #13 says:

    @HarvardLaw92: Constitutional issues aside, I think that an independent Air Force might be a bad idea. But that’s not what we’re arguing here.

    And you are NOT presenting an honest argument here. I said that there are loose constructionists, strict constructionists, and literal constructionists. Reynolds and I both qualify as strict — but not literal — constructionists. Under the aegis of national defense, an independent Air Force is a logical application of the “national defense” role and the previously-cited last clause of Article I, Section 8.

    You seem to think I’m arguing the literal interpretation. I am not.

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  34. Kylopod says:

    @Jenos Idanian #13:

    “limited government” means the government should be limited to areas where the federal government has legitimate Constitutional authority and concerns.

    If the consequences of “limited government” according to this definition are a decreased ability to an abortion (or same-sex relationships, or racial integration), then proponents of this view should stop claiming to be the champions of greater “freedom,” and they should cease to identify by (as Reynolds does) the term “libertarian.”

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  35. Jack says:

    @HarvardLaw92: You apparently did not read past the first few words, but please just to more conclusions.

    You mean penalty, right? Isn’t that what the Obama administration told everyone it was…until they actually needed to call it a tax in court to gain a modicum of legitimacy.

    No, taxing someone for existing is not a legitimate use of the Article I powers.

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  36. HarvardLaw92 says:

    @Jenos Idanian #13:

    Under the aegis of national defense, an independent Air Force is a logical application of the “national defense” role and the previously-cited last clause of Article I, Section 8.

    LOL, no, it’s a rationalization of what under a strict approach would constitute overreach, which you apparently find permissible. Under a strict approach, the Constitution can not expand by implication beyond what its text explicitly limits. Strict constructionists hail back to the intent of the framers in their interpretation of constitutional verbiage. The founders could not have conceived of an Air Force, ergo they did not have in mind to permit the establishment of one when they wrote the Constitution. Establishing one violates both a strict approach AND a literalist approach.

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  37. HarvardLaw92 says:

    @Jack:

    The admin can call it a bake sale if that’s what makes it happy. When it comes to the operative meaning and intent of the verbiage of legislation, that determination is left to the courts.

    SCOTUS says it’s a tax, ergo it is a tax.

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  38. Jack says:

    @HarvardLaw92: SCOTUS says it’s a tax, ergo it is a tax.

    And I said, “No, taxing someone for existing is not a legitimate use of the Article I powers.”

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  39. HarvardLaw92 says:

    @Jack:

    And I pointed out that the Constitution gives Congress pretty much unlimited power to tax the public in furtherance of ANYTHING that Congress determines advances the general welfare. I’ll absolutely support your assertion that you dislike it, or find it odious, but enough with calling it unconstitutional. It isn’t.

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  40. stonetools says:

    @Kylopod:

    If the consequences of “limited government” according to this definition are a decreased ability to an abortion (or same-sex relationships, or racial integration), then proponents of this view should stop claiming to be the champions of greater “freedom,” and they should cease to identify by (as Reynolds does) the term “libertarian.”

    Yup. The difference between libertarian and liberal is really about different definitions of what “liberty” is.
    Some might argue that all the major political disputes in the United States today ( and indeed in US history) are about different defintions of “liberty”.

    Fun fact : during the US Civil War, both sides marched to the different versions of a song called “the Battle Cry of Freedom.”

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  41. Jack says:

    @HarvardLaw92:

    I’ll absolutely support your assertion that you dislike it, or find it odious, but enough with calling it unconstitutional. It isn’t.

    Point out where exactly I said it was unconstitutional. I’ll wait.

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  42. Jenos Idanian #13 says:

    But back to the original topic: Reynolds argues that the federal government should have NO say in abortion, either prohibiting or protecting it. He says that it should be left to the States, as part of the 10th Amendment.

    And you’re praising him for that position, simply because he’s emphasizing the first half of his beliefs hers. Hell, the GOP position you’re both attacking is closer to the left — both sides are saying that abortion is a concern of the federal government. Reynolds (and myself) reject that fundamental area where you are in agreement.

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  43. Ebenezer_Arvigenius says:

    I realize that this is a U.S. wedge issue, but what exactly is the principal objection here? What I get from the article so far seems to be a reasonable compromise for a difficult question. It also roughly reflects the state of law in most European countries.

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  44. HarvardLaw92 says:

    @Jack:

    Point out where exactly I said it was unconstitutional. I’ll wait.

    Okie dokie …

    You said this:

    And I said, “No, taxing someone for existing is not a legitimate use of the Article I powers.”

    which pretty explicitly states your belief that PPACA is an illegitimate use of Article I power. Have we crossed over into some alternate universe where “illegitimate use of [constitutional] power” doesn’t constitute “unconstitutional”?

    I’ll wait …

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  45. Kylopod says:

    @Jack:

    I believe you have the whole Democrat/Liberal and Conservative thing confused. During Jim Crow, it is well documented that the Democrats opposed segregation

    If you read Rafer Janders’ criticisms of the “limited government” mantra, they were directed at conservatives, which in historical terms doesn’t apply only to today’s GOP, but also to the old Southern wing of the Democratic Party, otherwise known as the “Dixiecrats.”

    The Dixiecrats were (originally) Democrats, but they were conservative Democrats. They belonged to something called the Conservative Coalition, and starting in about the late ’30s were allied to Republicans on most domestic issues. Conservatives opposed civil rights laws using arguments like the following:

    When you invade and violate the Constitution, you attack the personal liberties of the citizens of California and Maine, as well as the liberties of the people of South Carolina and Virginia. You cannot create new rights for one group by taking them away from another.

    I am deeply concerned over the efforts of opposing groups to smear our effort with the false trappings of race hatred. We are interested solely in protecting the rights of states to manage their own internal affairs, which is a fundamental guarantee of the Constitution.

    That quote comes from a 1948 speech by Strom Thurmond running on the States Rights party, but apart from a few details the words are virtually identical to the arguments made by contemporary conservatives (including libertarians like Ron Paul who still oppose the Civil Rights Act of ’64). It’s not surprising that Thurmond (along with most other conservative Democrats from the South) eventually became a Republican, not because his philosophy of government changed, but because he found a home for his views in the GOP after the Democratic Party abandoned them and fully established itself as a party of civil rights.

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  46. Jack says:

    @HarvardLaw92: The statement “No, taxing someone for existing is not a legitimate use of the Article I powers.” is not saying it is unconstitutional.

    A legitimate child is a child born to parents that are married.

    An illegitimate child is born to parents that are not married.

    You are arguing I said the child is not a child, when in fact, I said that the child was illegitimate.

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  47. HarvardLaw92 says:

    @Jack:

    Seriously? That’s what you come back with?

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  48. Jack says:

    @Kylopod: The same “Democrats” that voted for Roosevelt are the same “Democrats” that opposed segregation. Don’t try the old, lame argument that they were democrats back then but…Democrat leopards don’t change theirr spots. You cannot push off the Democrat party’s racist past by trying to claim they were actually Republicans.

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  49. Jack says:

    @HarvardLaw92: Do I need to ‘splain it to you better?

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  50. HarvardLaw92 says:

    @Jack:

    LOL, no, you’d do better to stop [badly] trying to hide behind semantics when you get boxed into a corner.

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  51. C. Clavin says:

    @Jack:

    During Jim Crow, it is well documented that the Democrats opposed segregation and it was the Democrats who enslaved, and the Democrats who refused them the right to vote

    Of coourse you have to be totally ignorant of history to think this applies today…which, based on your commenting record…you are. Try learning about history before making such stupid statements.

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  52. Jack says:

    @HarvardLaw92: I was not in a corner. I never said the ACA was unconstitutional. Clearly SCOTUS has ruled, just like they ruled for Citizens United.

    What I said was this was an illegitimate use of the ability of Congress to levy taxes, because this affects every person, alive or yet to be born. They now have an obligation to pay a tax not based upon income, apportionment or any other “legitimate” basis for taxes, but now simply because they do nothing.

    I think it’s time we tax others for doing nothing. Don’t get a job? Tax. Don’t bring in enough income, tax. Don’t produce enough, tax. Don’t own a gun, tax.

    I’m sure you’ll also agree that too would be an illegitimate use of the tax powers.

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  53. Jack says:

    @C. Clavin: Go back to “sheering your sheep”, cupcake.

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  54. C. Clavin says:

    I’m decidedly pro-choice…and I don’t have any real issue with this. Of course, I’m a male and females may feel differently. Hard for me to know. Harder still for a bunch of old white rich guys in Washington to know. But on it’s face it seems a perfectly reasonable compromise.
    The problem is that the religious zealots will not settle for this. This is not what they want. What they want is person-hood at conception…a completely unreasonable…and frankly stupid…position. So we’ll be right back having the same arguments…with the same trolls…next week.

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  55. HarvardLaw92 says:

    @Jack:

    The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

    Please point out to me the limitation on the power of Congress to impose taxation in furtherance of the general welfare contained in that phrase? Illegitimate is apparently your way of saying “i dislike this”, and if that’s so, more power to you. Congress certainly acted within its constitutional authority, so you really don’t have much of a leg to stand on beyond shouting at the rain.

    Which you may certainly continue to do at your leisure.

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  56. C. Clavin says:

    @Jack:
    Making baseless personal attacks doesn’t change the fact that you are an complete idiot…only reinforces it. You might want to ponder that for a bit. But you probably won’t. Again…because you are an idiot.

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  57. Jack says:

    @C. Clavin: Keep “plucking” those chickens, cupcake.

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  58. C. Clavin says:

    @Jack:
    Thanks for proving me right, again.

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  59. Jack says:

    @HarvardLaw92: Roosevelt interred Japanese US citizens in camps during WWII. SCOTUS also ruled that constitutional. Yet, I doubt you’d say that was a “legitimate” use of the Presidents powers.

    Then again, it didn’t happen to your cousin/nephew, so maybe you would.

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  60. Jack says:

    @C. Clavin: Keep “feeding” the pigs. Suueeeee!

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  61. HarvardLaw92 says:

    @Jack:

    Actually, while I personally think it was ill advised, given the precise environment in which it occurred the principle underlying Korematsu doesn’t trouble me from a constitutional standpoint.

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  62. Jack says:

    @HarvardLaw92:

    Actually, while I personally think it was ill advised, given the precise environment in which it occurred the principle underlying Korematsu doesn’t trouble me from a constitutional standpoint.

    I didn’t ask if it was “constitutional”. I asked about your personal belief if it was a “legitimate” use of presidential powers.

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  63. HarvardLaw92 says:

    @Jack:

    Yes and no. Short-term internment in order to allow the limited resources available at the time to discern which affected persons were legitimate threats (and should therefore have continued to have been held) and which were not (and should therefore have been released) would have been legitimate. How it actually played out wasn’t.

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  64. Jack says:

    @HarvardLaw92:

    Yes and no. Short-term internment in order to allow the limited resources available at the time to discern which affected persons were legitimate threats (and should therefore have continued to have been held) and which were not (and should therefore have been released) would have been legitimate. How it actually played out wasn’t.

    And the same should be said of NSA metadata review. Discerns which affected persons are legitimate threats—but not have all data on all persons to infinity.

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  65. HarvardLaw92 says:

    @Jack:

    If you don’t like it, feel free to complain to your congressman. Metadata collection is legal.

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  66. wr says:

    @Jenos Idanian #13: “Reynolds and I both qualify as strict — but not literal — constructionists. ”

    Or to be precise, Reynolds qualifies as a strict constructionist, while you qualifying as a no-nothing who cuts and pastes crap from right wing blogs.

    Just so we keep our terms straight.

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  67. wr says:

    @Jenos Idanian #13: “Reynolds and I both qualify as strict — but not literal — constructionists. ”

    Or to be precise, Reynolds qualifies as a strict constructionist, while you qualifying as a know-nothing troll who cuts and pastes crap from right wing blogs.

    Just so we keep our terms straight.

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  68. wr says:

    @wr: Sorry for the double posting there.

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  69. gVOR08 says:

    @wr: Just a chance to up-vote both.

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  70. Monala says:

    @Jack:

    They now have an obligation to pay a tax not based upon income, apportionment or any other “legitimate” basis for taxes, but now simply because they do nothing.

    This isn’t true. People whose income is too low to have a tax filing obligation are exempt from the ACA tax payment, regardless of whether or not they’re insured (one caveat: if they got a premium tax credit to purchase insurance on the health care exchanges, they have to file no matter what their income level). And those who are being supported by others with enough income to have to a filing requirement–children of working parents, for instance–don’t owe the payment if uninsured, their parents (or whoever is supporting them) do.

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  71. C. Clavin says:

    @wr:
    This.

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  72. Tillman says:

    @Rafer Janders: Please! All learnéd persons of quality intuitively grasp that Man cannot soar through the skies as birds do! His limbs lack the particular skeletomusculature necessary for flight, for God has consigned His creation to labor with feet planted firmly on ground. It is a just and proper state of affairs familiar to the wisest among us harking back to the beginning of time. This talk of an “air force” is scurrilous at best…an affront to Man’s reason…dare I say, demonic! The mere notion! Metal barges and dirigibles somehow traversing currents of air! Ho hum, ho ho hum.

    What next, a mechanism for sending messages by broadcasting information through the luminiferous aether? Please sir, do not offend my senses with such whimsical invention!

    (I want Scalia to declare the Air Force unconstitutional now.)

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  73. Monala says:

    @Monala: Or another way to say it, you’re responsible for making sure that anyone you claim a tax deduction for, is insured. (Although exemptions are available for a variety of circumstances).

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  74. C. Clavin says:

    For those of you distracted by PPACA talk above:

    The Associated Press-GfK poll finds only 1 person in 10 is highly confident that the justices will rely on objective interpretations of the law rather than their personal opinions. Nearly half, 48 percent, are not confident of the court’s impartiality.

    WTF?

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  75. HarvardLaw92 says:

    @C. Clavin:

    That figure waxes and wanes with respect to how closely the justices’ opinions match public opinion. They’re granted life terms precisely to insulate them from having to care about public opinion.

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  76. Kylopod says:

    @Jack:

    The same “Democrats” that voted for Roosevelt are the same “Democrats” that opposed segregation.

    I know you mean “opposed desegregation” (this is the second time you’ve made that error), but let that pass.

    You are absolutely correct on this point–the segregationists were FDR supporters–and I never suggested otherwise. FDR also got the support of civil rights activists in the North, and he was the first Democratic president to win a majority of the black vote.

    In short, it was a coalition–something called the New Deal Coalition. You may have heard of it.

    You cannot push off the Democrat party’s racist past by trying to claim they were actually Republicans.

    I said no such thing. What I said was that they were conservative Democrats–who eventually became Republicans. This is not a “claim” but a well-documented fact.

    You seem to be treating the words “Republican” and “conservative” as though they are interchangeable. That may be the case today, but it wasn’t the case before about 40 or 50 years ago. Back then, the Southern Democrats who supported Jim Crow were widely recognized as the conservative wing of their party. The liberals in the party did NOT support Jim Crow. There was a power struggle between these two factions, and the liberals won. That’s why Truman, the liberal Democrat, desegregated the army and introduced a civil-rights plank into the party’s platform, inspiring the defection of the Dixiecrats.

    That’s why Barry Goldwater, who opposed the CRA that Democrat Lyndon Johnson passed, became the first Republican to win the Deep South. Even against a Texan.

    This is all part of history. There’s no conspiracy to deny the Democratic Party’s segregationist past; there is, however, the crucial fact that they abandoned it and became the party of minorities and civil rights.

    But if you want to imply the Dems are permanently tainted by positions they took more than a half century ago, two can play the game. How do you deal with the fact that most Republicans in the 1940s opposed going to war against Hitler?

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  77. wr says:

    @gVOR08: Thanks. I do appreciate that the one without the typo has more votes!

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  78. michael reynolds says:

    @Kylopod:

    Betcha five bucks Jack retains none of that.

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  79. Tyrell says:

    This is an issue that should be decided at the state level, not in Congress or the “Supreme” Court .

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  80. Kari Q says:

    @michael reynolds:

    And five quatloos that he calls you cupcake.

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  81. HarvardLaw92 says:

    @Tyrell:

    Yea, about that? We had a war over that issue. “States rights” lost.

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  82. al-Ameda says:

    @Tyrell:

    This is an issue that should be decided at the state level, not in Congress or the “Supreme” Court .

    Do you refer to the highest court of the land, the Supreme Court, as the “Supreme Court” because of an animus toward the “activist” justices – Scalia, Alito, Roberts, and Thomas – or is it because the Courts is known by another somewhat obscure name?

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  83. al-Ameda says:

    @Jack:

    I believe you have the whole Democrat/Liberal and Conservative thing confused. During Jim Crow, it is well documented that the Democrats opposed segregation and it was the Democrats who enslaved, and the Democrats who refused them the right to vote…but you keep making crap as you go…like normal.

    Oh look, another conservative who chooses to ignore the history of the Republican Party since passage of the Civil Rights and Voting Rights Acts.

    The fact is, opposition to those two bills was largely geographic – both Northern Democrats and Northern Republicans supported the legislation, and conversely, both Southern Democrats and Southern Republicans opposed the legislation.

    Never mind that – an entire generation of modern Republicans political strategists employed a ‘Southern Strategy’ based on white Southern voters who were not at all happy about the Civil and Voting Rights bills. It was quite successful, Republicans won 7 of 10 presidential elections between 1968 and 2004, and to the surprise of no one but Republicans like yourself, Blacks have come to vote for the Democratic Party nominee over 80% of the time.

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  84. Another Mike says:

    @HarvardLaw92:

    Please point out to me the limitation on the power of Congress to impose taxation in furtherance of the general welfare contained in that phrase?

    Why was there a need for the 16th Amendment, if all the power needed was in Article 1 Section 8 already? Just wondering?

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  85. HarvardLaw92 says:

    @Another Mike:

    Direct taxes generally have to be apportioned in order to be constitutional. Our first modern era “income” tax (it mostly impacted income from property), enacted via statute in 1894, was rejected by SCOTUS as being unconstitutional in 1895, in Pollock v. Farmers’ Loan & Trust Co.because it was a direct tax but not an apportioned tax. This hampered the federal government’s ability to raise revenue

    Since the ruling in Pollock stood to impact revenue generation across the board, the 16th Amendment was enacted in response, and was primarily intended to both sidestep the apportionment dictate of Article I Section 9 and to place the permissibility of a federal income tax largely beyond the purview of the courts.

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  86. anjin-san says:

    @Kari Q:

    We can’t wager for trifles like quatloos…

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  87. Another Mike says:

    @HarvardLaw92:

    Thanks. Excellent explanation.

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  88. C. Clavin says:

    So Jack has been completely spanked on his (de) segregationist claim.
    @al-Ameda:
    @C. Clavin:
    @Kylopod:
    Anyone think he has the balls to admit it?
    muwhahahahaha…I crack me up.

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  89. Paul L. says:

    No wonder Doug did not call out Debbie Wasserman Schultz’s stupid abortion should be completely unregulated so you can abort a healthy 7 pound baby statement like he did with Todd Atkin.
    Doug agrees with her.
    Constitutional right s made out of the ether are absolute. They override the Rights actually written in the Bill of Rights.

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  90. Barry says:

    @Rafer Janders: “Can we please stop this sad charade that conservativse care, at all, about so-called “limited government”? The only reason they started using this smokescreen in the first place was as a rhetorical tactic to hamper the federal government’s efforts to stop them enslaving and then, during Jim Crow, terrorizing blacks. No party which actually wants big government to snoop into the sex lives of its citizens, and which wants unlimited military spending on the military, the biggest government entity of all, actually cares one whit about “limited government.” It’s a scam, a grift, a charade, and only the dumbest and most gullible are still falling for it.”

    Seconded.

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  91. Barry says:

    @Jenos Idanian #13: “Where the hell was the “right to abortion” found in the Constitution in the first place? ”

    Oh, so if it’s not explicitly permitted it’s forbidden?

    Yet again, the limited government guys………………..

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  92. SC_Birdflyte says:

    @Kylopod: One caveat: Goldwater did not, in fact, carry the South (although he did win a majority of white Southerners). He carried SC, GA, AL, MS, LA. Johnson carried six states from the old Confederacy, including the two most populous, TX and FL.

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  93. Kylopod says:

    @SC_Birdflyte:

    One caveat: Goldwater did not, in fact, carry the South

    I didn’t say he did. What I said was that he was “the first Republican to win the Deep South.” In general usage, “Deep South” includes the five Southern states that Goldwater won. If you also include Texas and Florida, which Goldwater lost, that still amounts to fewer electoral votes (39) than the combined total of the Southern states he won (47). Other Southern states he lost, such as Tennessee and North Carolina, are not generally considered part of the Deep South.

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  94. SC_Birdflyte says:

    @Kylopod: You are correct. I missed the “Deep” in “Deep South.” Still, having grown up in Florida (and with a wife from Texas), I wouldn’t consider either of those two states “Deep South”, regardless of how far south they’re located.

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  95. Kylopod says:

    @SC_Birdflyte: I realize now that I did make one error: I should have said Goldwater was the first Republican to win the Deep South since Reconstruction. Grant in 1872 won all of the Goldwater states in the South except Georgia.

    I’m from Maryland, which along with Delaware must hold the record as the most un-Southern state to still be classified as part of the South by the Census Bureau.

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