The Spending Power,Standing,Justiciability (was the Problem with the Spending Power).

[John C. Eastman]

I agree with the political problem Sandy describes below, but disagree with his
conclusion.  Isn't the fact that the "Madisonian" platform would not be a recipe
for winning elective office today the very reason the Courts are there to
enforce the higher law rather than the contrary will of the majority at a given
point in time.  The real question is not whether someone running on such a
platform could win an election today, but whether a constitutional amendment
running on the "no limits to federal spending" platform could succeed,
particularly in light of the processes that were designed to force "We, the
people" to give a more serious consideration to such matters than we typically
do in a single election or even in a string of elections.  I see nothing wrong
with the view that "We, the people," recognizing, in a constitutional moment of
heightened deliberation, the tendency in all of us to become pigs at the public
trough, might demand more goodies at every election and still expect the courts
to protect us from those tendencies.  That was the essence of the James Buchanan
veto message I quoted earlier.
--John Eastman


Sanford Levinson wrote:

> I think that John Eastman is probably correct when he writes that
>
> So yes, under the view of the clause that prevailed at the outset (or at
> least from 1801 to 1863, but for a brief interlude during the second Adams
> administration), the OASDI would have been viewed as constitutionally
> problematic.  Change OASDI to the agriculture subsidies, and it becomes
> even more clear that taxing people in Maine and Vermont to subsidize
> corporate farmers in Iowa would not have been viewed as permissible, any
> more than the attempt to subsidize the New England Cod Fish industry
> was viewed as permissible in the 1790s -- whether the lower price of fish
> or of wheat that might result was, in Congress's view, good for the country.
>
> --------------
>
> The problem with his normative vision is not its cogency or even the fact
> that it would require undoing the principal thrust of the New Deal
> revolution, which is the unavilability to the court of a sufficiently
> robust notion of "national/local" to warrant judicial oversight.  Rather,
> it is the fact that Republican fat cats who own large farms are as eager to
> continue receiving federal subsides as the Democrats' favorite recipients.
> For better or worse, it is unthinkable that anyone could run for public
> office on a forthright "Eastmanite" program, which would, among other
> things, involve promising to vote against any and all disaster relief
> legislation for one's constituents save the (unlikely) situation where
> there is indeed a genuine national interest, under Eastman's criteria, in
> fighting the forest fires, etc.  "We the People" have spoken, for better
> and worse, in behalf of a vision of a taxing-and-spending national
> government that is simply not going to go away.  The great debates are over
> who gets to drink from the federal trough, not whether the federal
> government must stop simply get out of the water-supply business.
>
> sandy
-------------- next part --------------
A non-text attachment was scrubbed...
Name: res07ujr.vcf
Type: text/x-vcard
Size: 356 bytes
Desc: Card for John C. Eastman
Url : http://lists.ucla.edu/cgi-bin/mailman/private/conlawprof/attachments/20010827/c3a5a35f/res07ujr.vcf