Comments on: The Greatly Misunderstood Chief Justice John Marshall

By: Conservative Legal Experts Oppose "Federal Tort Reform" « PA Malpractice

Sat, 17 Sep 2011 13:35:22 +0000

[...] Rob Natelson returned to a subjects of sovereign tort remodel and a Commerce Clause on Jul 18 in a march of a contention on Chief Justice John Marshall and his signature case, Gibbons v. Ogden, on a Tenth Amendment Center website: [...]

By: Conservative Legal Experts Oppose "Federal Tort Reform" « Insurance for Physicians

Fri, 16 Sep 2011 20:59:18 +0000

By: Jeff Matthews

Jeff Matthews — Fri, 22 Jul 2011 02:37:15 +0000

Commercial, of course. Follow the money. One set of rules and regulations emanating from a central source is vastly more efficient to commercial interests. This efficiency has both benefits and detriments to consumers, but we've seen the detriments grow disproportionately.

If you were AT&T or Merck, would you want to lobby the legislatures, governors and regulators of 50 states, or of just one nation?

By: Philosopherking

Philosopherking — Fri, 22 Jul 2011 01:48:30 +0000

You have to wonder why would people want to grant such control to the federal government to begin with. What were there motives?

By: Jon_Roland

Jon_Roland — Wed, 20 Jul 2011 18:51:38 +0000

Rob tends to interpret the language of the period as though it was written with more care and skill than if was. That doesn't work. A historian has little choice but to sometimes read between the lines and find structure and meanings that were not clear to the writers of that era. Exegesis is a subtle art, and it is not always easy to cross the line into eisegesis.

By: Jon_Roland

Jon_Roland — Wed, 20 Jul 2011 18:35:55 +0000

Correction. That link is http://amend-it.org

By: Jon_Roland

Jon_Roland — Wed, 20 Jul 2011 18:30:39 +0000

The failure, if it can be called that, was not so much of the Framers, who did the best they could under difficult circumstances, but of their immediate successors for failing to adopt clarifying amendments when court decisions started to drift away from original understanding, and that in part a failure of the founders to pass on that original understanding through legal commentaries. In particular, Jefferson was urged to write such expositions, but he felt it was sufficient to let John Taylor of Caroline do it. Taylor tried, but his analytic and expository ability fell short, as can be seen in his writings on http://constitution.org . Madison felt (inadvisedly in my opinion) that he was still bound by his oath of secrecy concerning the proceedings at the Constitutional Convention, so that he could not publish his Notes on it until after both he and all the other attendees were dead, which did not occur until 1840, after much of the deviation had become entrenched. About the only remedy for what might be called scary decisis is constitutional amendments. The Bill of Rights were clarifying amendments, as were the Reconstruction Amendments, except for the $20 rule of the 7th and the enforcement powers of the 13th, 14th, and 15th. The problem is to find ways to word amendments so they target and overturn the key bad decisions or opinions, and the departures based on them. Randy Barnett has tried to do that with a few broad amendments that I don't think have the needed focus. I have instead tried to formulate amendments that are more targeted. See http://amend-it.com . But it is not easy. The framers of the 14th tried to hammer out the wording that would overturn Barron v. Baltimore and Dred Scott v. Sanford, but with the benefit of hindsight we can see the shortcomings of their wording. I'd like to think my wording would work better, but it is difficult to anticipate every way one's words can be misconstrued. The only way to avoid that is to educate one's successors to know how to get the court decisions back on track if they drift away. I have tried to provide everything anyone might need on http://constitution.org , but I cannot afford to continue that effort without more financial support. The entire site could go down within a month if I don't receive at least $2000 in donations soon.

By: Rob M

Rob M — Wed, 20 Jul 2011 06:16:52 +0000

In the link I posted above to the article excerpt by Tom Woods there is also a link to his full 9 page article that goes further into Marshall. Prof Woods viewpoint is quite the opposite of Mr Natelson's. (As are the viewpoints of Prof DiLorenzo and Judge Napolitano.)
– - A jurist may argue that it wasnt his intention that his findings be interpreted as they later have by others. It has also been argued by some, that the Federalists drafted portions of the Constitution in such as way as to create such opportunities for creating a more 'energetic' central government as opportunities presented themselves. These were intelligent ambitious men, most of them trained in the law and in politics. Were these 'opportunities' in the Constitution by accident or design ? That argument has been waged since the time the document was being drafted. It has also been argued that jurists like Marshall have done everything possible to take advantage of such openings and to pry them further apart – - – I either case, the final results are the Leviathan central government – bankrupt, intrusive, & over reaching – that we have to deal with today.

By: Jeff Matthews

Jeff Matthews — Wed, 20 Jul 2011 02:47:17 +0000

Crud. The auto-spam killed my latest comment. Can you restore it? I also hope Natelson wants to chime in on this particular topic.

By: Jeff Matthews

Jeff Matthews — Wed, 20 Jul 2011 02:44:08 +0000

To this exact point, I will go one further than Jon Roland. The framers are to blame. After all, they wrote the first document and laid forth the initial principles. It is undeniably all their fault. Look at everything that wound up open for discussion. (Just like in the article I just sent you on how to construe the phrase "the People.") Not to disparage the framers or anything….. I don't know that I could have written anything all that much better.

I think it is a convincing proposition that the framers did not intend the feds would (or ought) to get this far. But the process works a lot like the budget. Everyone that follows picks which parts they want to construe restrictively and which parts they want to construe liberally. After several decades, eventually, enough people have had their hands in the pie such that every part has been subjected to an expansive construction, and the whole thing inflates.