February 6, 2013

Is government an "impetuous vortex" or a "hideous monster [with] devouring jaws"?

Reading the Obamacare case in class preparation today, I notice those 2 metaphors, both taken from the Federalist Papers, both used in the process of saying that the Commerce Power doesn't support the requirement that everyone buy health insurance. "Impetuous vortex" — from The Federalist No. 48, written by James Madison — is quoted in  Chief Justice Roberts's opinion:
The Government’s theory [of the scope of the commerce power] would erode those limits, permitting Congress to reach beyond the natural extent of its authority, “everywhere extending the sphere of its activity and drawing all power into its impetuous vortex.”
The "hideous monster [with] devouring jaws" — written by Alexander Hamilton in The Federalist No. 33 — appears in Justice Scalia's opinion:
If Congress can reach out and command even those furthest removed from an interstate market to participate in the market, then the Commerce Clause becomes a font of unlimited power, or in Hamilton’s words, “the hideous monster whose devouring jaws... spare neither sex nor age, nor high nor low, nor sacred nor profane.” The Federalist No. 33, p. 202 (C. Rossiter ed. 1961).
Many have noted that Scalia (joined by Kennedy, Thomas, and Alito) did not join the Roberts opinion on the Commerce Clause, even though they said basically the same thing about it. Their spirit of resistance shows even through their choice of a different Federalist Paper with a different author and a different metaphor for government's voracious maw.

64 comments:

Chip S. said...

You forgot to add: and no Michelle Obama jokes, please.

Hagar said...

Much better writing than Fitzgerald's.

chickelit said...

I don't know about US but elsewhere it's devouring jaws al-Dente.

Gahrie said...

It's almost amazing to me that the Founding Fathers were so accurate in their predictions of the dangers of too much democracy and too much government.

tim maguire said...

Subtle brilliance is the best kind.

Levi Starks said...

hid·e·ous
/ˈhidēəs/
Adjective
Ugly or disgusting to look at.
Extremely unpleasant.
Synonyms
horrible - abominable - nasty - horrid - dreadful

im·pet·u·ous
/imˈpeCHo͞oəs/
Adjective
Acting or done quickly and without thought or care; impulsive.
Moving forcefully or rapidly: "an impetuous flow of water".
Synonyms
heady - violent - rash - vehement - hasty - impulsive

YES

Mitchell the Bat said...

Leviathan metaphors become problematic.

President-Mom-Jeans said...

Both descriptions are fitting.

Aridog said...

Prez Mom J beat me to it...both are fitting. That spoken from the perspective of someone who worked there for a couple decades. The worst of it is in the very senior ranks, all essentially appointed positions.

bagoh20 said...

Gahrie,

I was about to post the same thing you did. It's really amazing how bright, forward-thinking and clear they were about first principles, and without themselves to reference as we do. Ever since, every generation has struggled with those who wish to violate their own protections out of pure hubris, and progressively losing a little each time.

Today's leader's can't anticipate the problems they will create next week. "We have to pass it to see what's in it."

bagoh20 said...

I think "impetuous" is exceptionally well earned today.

Aridog said...

Further...I cannot for the life of me figure out how any sane logical person can call a penalty for non-performance of something a tax, which is based on performance of something.

What's next, "pre-emptive sales & use taxes" or income taxes levied for non-working? That last one would sure inflate the federal "receivables" fraudulently because there is no fiscal basis on which to levy the tax. Perfect for this autocracy, no doubt.

To me it has nothing to do with the Constitution, and everything to do with intimidation by the Executive Branch and cowardice in the Judiciary....and maybe too many Quaaludes for Justice Roberts.

Chip Ahoy said...

Those two phrases do stick out.

And that whole time I was thinking, oh man, that Hamilton guy was totally describing a facehugger way before Aliens even came out, now that's prescience! *spreads arms to stabilize* He must have had a vision how it looks in Google Earth.

Patrick said...

It's almost amazing to me that the Founding Fathers were so accurate in their predictions of the dangers of too much democracy and too much government.

Yet, to a certain extent Alexander Hamilton is responsible for allowing the federal government to reach much further than the founders ever imagined. He was the first cabinet member for Washington's administration, and was a very active Secretary of the Treasury. Bills that he proposed (with the consent of Pres. Washington, and filed by Congress) allowed the US to take on debt (much to the chagrin of Jefferson and Madison). The initial tax bills he proposed also gave the US its first real bureaucracy in the Treasury department, complete with enforcement power.

It is also true that both Jefferson and Madison were less reluctant to have a powerful federal government once they were in charge of it.

It is also true (in my opinion, anyway) that all three of them would be aghast at the scope of the government today. The road to Obamacare, however did not begin with the election of President Obama.

Kirk Parker said...

Aridog,

We already have that--google "imputed income" some time.

Bob Ellison said...

It's 1937.

X said...

to me the government is more like a mooch with a poor work ethic and high self regard and a surprising amount of greed and sense of entitlement.

AJ Lynch said...

Hah- I was thinking they Founding Fathers were so smart, could they have been advanced creatures from another world? And then I read Chip's comment where he describes govt as the Alien "facehugger"! Maybe we are both right?

BDNYC said...

Government is the only thing that we all belong to.

bagoh20 said...

"Quaaludes for Justice Roberts."

I wondered where they all went. He must have redefined them as "vitamins" when used for judicial purposes.

Kirk Parker said...

X,

... and guns.

Don't forget they have guns.

AprilApple said...

The clip of Queen Nancy exclaiming "We have to pass it to see what's in it." should front all campaign ads. Why the GOP didn't do this last go around is beyond me.

DADvocate said...

To answer the question, yes.

ricpic said...

Government is Michelle's ass blotting out the sun.

Seeing Red said...

I keep going back to what my father said, "They lived it."

IMHO, this is where the mistake is coming in - we do not live in a modern society, we live in a technological society.

That is the veneer.

Man's mind really hasn't changed.

Strip away the tech, like Hurricane Sandy did for the younger people when they couldn't charge their cell phones......


History repeats itself. The US and the progs won't avoid it.

Seeing Red said...

And look at the difference between Jefferson & Adams.

Jefferson lived high on the hog & wanted others to pay for his lifestyle & Adams was frugal.

Aridog said...

Kirk Parker ... what am I missing vis a vis "imputed income" when I read that is also performance based as applied by the IRS...e.g., there is a (theoretical?)fiscal basis from which to collect taxes. If there is no performance what-so-ever, and tax is still applied, imputed or otherwise, it means the revenue must come from the equity of the taxpayer...think VAT taxes and labor where the more labor you employ, the less you can claim as exemption....and you owe the VAT in loss years where there is no income per se...hence it comes outta yo ass :-)) ?

We had one of those VAT's in Michigan until very recently.

Peter said...

With apologies to Philip Roth, perhaps government is just a giant, ever-expanding human stain.

edutcher said...

Only if the or isn't an exclusive or.

Bob Ellison said...

It's 1937.

Only if we're talking China.

If we're talking Europe, it early '39.

Jourtegrity said...

What difference does it make?
-HC

sydney said...

It's almost amazing to me that the Founding Fathers were so accurate in their predictions of the dangers of too much democracy and too much government.

They had just fought to get themselves out from under too much government. They knew the dangers because the British empire was in the 18th century was as tied up in over-reaching laws as we are today. How much longer do you think it will take us to fall, since we aren't heeding their advice and wisdom?

n.n said...

Gahrie:

You shouldn't be surprised. The principle is leverage and it is developed equally well through the sword or democracy. While democracy has an emotionally pleasing perception, it also represents, potentially, a tyranny of a majority (i.e. numerical advantage).

Neither a minority nor a majority rule is desirable. This is why we have a republic organized under a constitution. It is designed to keep both majority and minority interests in check.

Unfortunately, the Constitution, as all laws, are only proscriptive and must be enforced; otherwise, they serve to temper the acts, and leave vulnerable, people who abide by them.

Sam L. said...

Both.

Bushman of the Kohlrabi said...

The good news?

If you like your bloated nanny-state government, you can keep it.

Mutaman said...

"It's almost amazing to me that the Founding Fathers were so accurate in their predictions of the dangers of too much democracy and too much government."

And I loved how they were on the right side of history when it came to women, blacks, and Indians.

Chip S. said...

Yes, it's terrible how they invented slavery.

chrisnavin.com said...

Mutaman:

It's amazing how you likely assume you're on the right side of history now.

Paul said...

And soon soylent green will be people, at least the ones the death panels get.

But that is what you get when you use your food for fuel in cars.

Gahrie,

Politics knows no age.

The politics we have today are the same ones they had thousands of years ago.

So when they saw the government as a 'necessary' evil, well it was nothing new.

As Lord Acton said, "“All power tends to corrupt; absolute power corrupts absolutely.”

furious_a said...

"Is government an "impetuous vortex" or a "hideous monster [with] devouring jaws"?"

Yes.

Gahrie said...

And I loved how they were on the right side of history when it came to women, blacks, and Indians.

Nice strawman asshole.

The Founding Fathers created a nation, a political system and an economic system that produced a higher standard of living and more freedom for women, Blacks and Indians than any other in history.

Bender said...

Many have noted that Scalia (joined by Kennedy, Thomas, and Alito) did not join the Roberts opinion on the Commerce Clause, even though they said basically the same thing about it.

That's because, given the laughable and absurd ruling upholding the constitutionality of the mandate as a tax, any discussion on constitutionality under the Commerce Clause is entirely moot, i.e. dicta, as in, not binding precedent.

Lem said...

Its an "impetuous vortex" until its has enough mass, laws and gas to coalesce into a "hideous monster [with] devouring jaws".

Mutaman said...

"Yes, it's terrible how they invented slavery."

They didn't invent it, they just said it was legal.

Mutaman said...

"It's amazing how you likely assume you're on the right side of history now."

I think that allowing women to vote is being on the right side of history. Disagree?

Mutaman said...
This comment has been removed by the author.
Mutaman said...

"The Founding Fathers created a nation, a political system and an economic system that produced a higher standard of living and more freedom for women, Blacks and Indians than any other in history."


Soken like a fat balding white male, asshole. Even if true, it took a pretty bloody war and a lot of demonstarting to get there

furious_a said...

And I loved how they were on the right side of history when it came to women, blacks, and Indians.

What's the German compound word for "the pretense of judging historical conduct using present-day constructs"?

chrisnavin.com said...

Not necessarily, but there are arguments for not allowing land-owners and others with skin in the game the vote. At what cost? Compared to what? Where are the hard facts?

I do disagree with the simplistic, name calling, head up your ass selective re-reading of history you display here.

All you have to do is stand on a soapbox and see a few centuries back.

How convenient.

jr565 said...

IT's both an impetuos vortex AND a hideous monster. It's like being caught between the Sylla and Charybdis, however you want to characterize it.

jr565 said...

That should say Choosing one is like choosing between the Sylla and Charybdis.

Gahrie said...

Soken like a fat balding white male, asshole. Even if true, it took a pretty bloody war and a lot of demonstarting to get there

I'm assuming you meant "spoken". That "bloody war" was fought mainly be White men, many of them fat and balding.

Much of the demonstrating was done by fat, balding White men also.

Tell me again about the noble society of savages that had no idea of slavery, lived in peace and harmony with their neighbors, and treated women better than 18th century America did, let alone 21st century America.

virgil xenophon said...

"I think that allowing women to vote is being on the right side of history. Disagree?"

YES...SEE: Exhibit #1 Pelosi, Nanncy

Gahrie said...

I think that allowing women to vote is being on the right side of history. Disagree?

I never used to.

After the last election? I'm beginning to.

Gahrie said...

They didn't invent it, they just said it was legal.

They were also the first society/civilization in history to make it illegal.

Chip S. said...

They didn't invent it, they just said it was legal.

The first time the words "slave" or "slaver" appear in the Constitution is in the 13th Amendment, which abolishes it. So what you can say s that "they" didn't ban it.

But that's also not true. The Founders didn't use the Constitution to ban slavery, but many of them did work to ban slavery in their home states.

By the time the Constitution was ratified, PA, MA, NH, CN, and RI had enacted laws abolishing slavery gradually. The Vermont Republic's constitution banned slavery in 1777. NY and NJ followed suit in 1799 and 1804.

The Constitution was really about defining the structure and role of the national government. It was not a vehicle for righting every injustice. If you evaluate the Founders from that perspective, you're committing the anachronistic fallacy.

But I'll give you credit for not using that stupid "3/5 of a person" argument.

Chip S. said...

They were also the first society/civilization in history to make it illegal.

Venice banned the slave trade in 960.

Iceland abolished slavery in 1117.

Gahrie said...

Venice banned the slave trade in 960.

Iceland abolished slavery in 1117.


Both of which are part of the Western European Civilization.

Chip S. said...

Thanks for the info.

TSE said...

Their spirit of resistance shows even through their choice of a different Federalist Paper with a different author and a different metaphor for government's voracious maw.

It grows worse everyday! Now Wisconsin Mayors are issuing Executive Orders!

Really - a Mayoral Executive Order?

YES!

Only in Racine - The Mayor Of No Authority!

Michael K said...

"The road to Obamacare, however did not begin with the election of President Obama."

The attempts at health care reform, since 1978 when it began, have all concerned themselves with cost. It has never occurred to Congress to try to use market methods. Attempts to provide free comprehensive care has always resulted in rationing since demand is infinite. "Land Office Business" is an old term.

Obamacare is just the latest clumsy attempt at free care.

somefeller said...

The Founding Fathers created a nation, a political system and an economic system that produced a higher standard of living and more freedom for women, Blacks and Indians than any other in history.

Yes, once liberals of various eras (including ours) fixed things up so America could live up to its promise.You're welcome.

Gahrie said...

Yes, once liberals of various eras (including ours) fixed things up so America could live up to its promise.You're welcome

You know what? I don't mind the liberals so much anymore. (Even if you vastly overstate their influence...tell me again why the Republican party was formed?)

It's the fucking Progressives I can't stand.

CWJ said...

This comment thread only confirms how much I despise anachronism.

kentuckyliz said...

The government's voracious maw eats the citizens' money and shits death panel health care.