Posted on 11/18/2018 4:35:18 PM PST by Neil E. Wright
The commerce clause makes no sense if everything is interstate commerce.
Everything has some influence on interstate commerce.
There has to be a line.The Supreme Court has refused to draw that line.
One could clearly argue that "gay marriage" has an influence on interstate commerce, so it can be regulated.
No one has made that argument, that I know of.
The catch-all clause. Very little in 1787 was interstate commerce or of a global nature.
Today the opposite is the case. Almost nothing we do or sell or buy is intrastate anymore.
How about NYT v Sullivan?
It helps to read the column. Lots.
“The regulations, established under the Agricultural Adjustment Act, were intended to support crop prices during the Great Depression. ”
Ah yes, when Marxist state ruled agricultural price fixing was established in the US by FDR, may he rot in hell. My state’s old Senator, Snarlin’mArlen Specter (first R then D) was singlehanded responsible for much of the expansion of what is today considered as interstate commerce.
I would love to see this mess rolled back.
I remember reading this case in law school and was like “WTF?”. Seriously one of the most ridiculous decisions ever.
The Wickard v. Filburn decision makes as much sense as the Roe v. Wade decision. That is to say that neither make sense nor are they constitutional.
There was a similar case, Horne vs Dept of Agriculture, decided 8-1 overturning a similar law regarding raisins. The government was forcing raisin producers to sell some portion of their crop to use in federal programs and for price supports. I just googled to refresh my memory and that decision was limited to only raisins. I imagine that many of the same arguments would apply here.
The Wickard v. Filburn decision makes as much sense as the Roe v. Wade decision.
Wickard v. Filburn completely ignores the words and spirit of the constitution. Interstate commerce means business that crosses a state line. The court ruled that commerce or really lack of commerce that doesn’t cross a state line can still be considered ‘interstate commerce’ which doesn’t make any sense at all.
It would be wonderful for Wickard v. Filburn to be overturned if for no other reason than to watch the left’s heads explode over the shrinking of Federal government/Congress’s power.
As for gay marriage, the Court's wretched Obergefell mandating gay marriage relied on the 14th Amendment, not the Commerce Clause.
Regarding Wickard v. Filburn, regardless what FDR's activist majority justices wanted everybody to believe about the scope of Congress's Commerce Clause powers (1.8.3) they wrongly ignored the following imo.
They wrongly ignored that previous generations of state sovereignty-respecting justices had clarified the common sense interpretation of the Commerce Clause versus 10th Amendment-protected state powers when they scandalously decided Wickard v. Filburn in Congress's favor.
And not only had justices previously clarified relatively narrow limits on Congress's Commerce powers in Gibbons v. Ogden, 1824, but they also later referenced the 10th Amendment (10A) in United States v. Butler, 1936, to clarify that Congress's Commerce Clause powers were off limits to INTRAstate agricultural production.
"Article I, Section 8, Clause 3: To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;"
"Congress is not empowered to tax for those purposes which are within the exclusive province of the States."—Justice John Marshall, Gibbons v. Ogden, 1824.
"10th Amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
"From the accepted doctrine that the United States is a government of delegated powers, it follows that those not expressly granted, or reasonably to be implied from such as are conferred, are reserved to the states, or to the people. To forestall any suggestion to the contrary, the Tenth Amendment was adopted. The same proposition, otherwise stated, is that powers not granted are prohibited. None to regulate agricultural production is given, and therefore legislation by Congress for that purpose is forbidden [emphasis added]." —United States v. Butler, 1936.
So regardless what Justice Jackson and his colleagues wanted everybody to believe about the scope of Congress's Commerce Clause powers, using totally inappropriate terms like "concept" and "implicit" to describe that amendment, here is what was left of 10A by the time that FDR's state sovereignty-ignoring activist justices got finished with it.
"In discussion and decision, the point of reference, instead of being what was "necessary and proper" to the exercise by Congress of its granted power, was often some concept [???] of sovereignty thought to be implicit [??? emphases added] in the status of statehood." —Wickard v. Filburn, 1942
Thomas Jefferson had put it this way about judges.
"The Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.” —Thomas Jefferson to Spencer Roane, 1819."
"Laws are made for men of ordinary understanding and should, therefore, be construed by the ordinary rules of common sense. Their meaning is not to be sought for in metaphysical subtleties which may make anything mean everything or nothing at pleasure." —Thomas Jefferson to William Johnson, 1823."
Corrections, insights welcome.
Economists are *not* judges, nor should there opinions be used to make judicial decisions.
Taken at face value, *everything* affects interstate commerce, which renders the commerce clause void of meaning, if anything affecting interstate commerce may be regulated by the federal government.
My statement about "gay marriage" was to show the absurdity of the idea that the federal government has the right to regulate everything.
As late as 1995, in Lopez, the Supreme Court ruled, that for the commerce clause to have meaning, there has to be a limit on the reach of federal regulation.
In 2005, they reversed that with the Raich decision, on home grown marijuna. It was not Justice Scalia's finest hour.
what I grow on my property and use at home should never be subject to interstate commerce regulations.
The classic explanation of the broad view of the Commerce Clause power was by Chief Justice Marshall in 1824. The power to regulate Commerce is "the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the Constitution." The absence of such limitations in the text of the Constitution itself is a key difficulty for textualists like Scalia.
Years ago, in law school, I was troubled by the contradictory views of the Commerce Clause and Wickard as set out in my casebook and in conservative literature, so I took several evenings to read the case thoroughly and the cases that it cited and relied on. I soon realized that the restrictive view of the Commerce Clause had long been in retreat due to the way that the country had been knitted together by modern technology. And the Commerce Clause had frequently been invoked against local monopolies and restraints of trade in state and local law.
That case was regarding market orders in which industry groups determined how much of a product a farmer could produce. Since that case, I believe the principle has been applied to most, of not all market orders. That case only applied to raisins because other crops weren’t at issue. I suspect lower federal courts have applied that decision to other farm products.
Another case few living ever heard of - case grants Treaty Tribes superior Rights over all other US citizens
U.S. Supreme Court
WASHINGTON v. FISHING VESSEL ASSN., 443 U.S. 658 (1979)
443 U.S. 658
WASHINGTON ET AL. v. WASHINGTON STATE COMMERCIAL PASSENGER FISHING VESSEL
ASSOCIATION ET AL.
CERTIORARI TO THE SUPREME COURT OF WASHINGTON
No. 77-983.
Argued February 28, 1979.
Decided July 2, 1979.
[Footnote *] Together with Washington et al. v. Puget Sound Gillnetters Assn. et al., also on certiorari to the same court (see this Court’s Rule 23 (5)); and No. 78-119, Washington et al. v. United States et al., and No. 78-139, Puget Sound Gillnetters Assn. et al. v. United States District Court for the Western District of Washington (United States et al., Real Parties in Interest), on certiorari to the United States Court of Appeals for the Ninth Circuit.
I agree; the right to be left alone can be inferred from the 9th Amendment.
What is needed is official recognition that a baby in utero is a separate and distinct Human Being with his or her own set of Natural, Constitutional rights.
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