Posted on 05/25/2022 7:00:46 AM PDT by Kaslin
The Constitution, as any law, should be interpreted and applied as written and originally understood and intended.
If the wording is clear then you go with it. There’s no genuine issue that the meaning of Art. I, Sec. 8 Cl. 3, is about interstate commerce - or business or commerce between the states. So that leaves out business within states, only that between the states. One must ask, why regulation between the states?
If the wording is or can be seen as ambiguous, as with any law, then to obtain the proper meaning and intent you research what the framers and ratifiers meant and intended.
A good starting point in interpreting and applying the Constitution is the Declaration of Independence which has persuasive authority and frames the Constitution. The D of I shows a general intent of the Framers and Founders of our country for freedom and independence from government coercion and thus to create an effective but very limited government. They saw government as necessary to protect the States from outside invasion, but evil if unlimited and unrestrained - the reason for the American Revolution.
From there, the “Federalist Papers”, written at the time of the creation and ratification of the Constitution to explain the intent of contents of the Constitution is a good source. Regarding interstate commerce, the Federalist Papers speak in favor of “unrestrained intercourse between the States themselves” and “free circulation” of goods. So, yes, the purpose and intent of the Commerce Clause was to allow unhindered commerce between the states. There is no evidence of an intent to give the feds unlimited power over all interstate communications, transportations, and commerce.
When looking at a clause that could be seen as ambiguous, always use the original understanding and intent of LIMITED government to see what was meant. If you are a Patriot and lover of America and freedom, you won’t have a problem with that. Otherwise, you are showing support for the current 80%+ unconstitutional portion of our mostly outlaw government.
"While federal safety regulation of airlines is arguably a good idea, it remains that the states have never expressly constitutionally given the post-17th Amendment ratification, unconstitutionally big federal government the specific powers to do a whole lot of things that it is now doing...,
I agree with that statement. However, you go on to state:
...no power to dictate the qualifications of airline pilots for example.
I strongly disagree with that statement.
Following is my rationale:
In your response #60, paragraph 2, you state in part:
...There’s no genuine issue that the meaning of Art. I, Sec. 8 Cl. 3, is about interstate commerce - or business or commerce between the states....
IMHO, the word "regulate" means the same today as it did in 1787.
In para 5 of your response, you quote the "Federalist papers":
Federalist Papers speak in favor of “unrestrained intercourse between the States themselves” and “free circulation” of goods.
My interpretation is that Congress should pass laws, rules, and/or regulations that promote and not hinder “unrestrained intercourse between the States themselves” and “free circulation” of goods.
The Federalist papers do not redefine the word "regulate".
Exmple: Aviation is inherently dangerous. Running out of fuel at 30,000 feet is more dangerous than running out of fuel on an interstate highway. An FAA rule on fuel minimums (10% or 20 minutes reserve) makes sense to me.
Airlines that fly internationally and/or fly between the states must follow the laws, rules and regulations established by the FAA.
So, I guess it boils down to "What about an airline that only flies within a state?"
Below is a link that contains Texas code "AVIATION":
If you want to research the aviation laws in the other 49 states, press on.
I have heartburn with your final paragraph in #61 which I will respond to in a PM.
Thanks for reply FtrPilot.
Let's get transportation industry out of the Commerce Clause based on the following material.
First, a post-Civil War Supreme Court case, Paul v. Virginia, tested if Commerce Clause gives Congress the specific power to regulate insurance. The Court decided no. Why? The Court clarified that insurance is a contract, not commerce, regardless if buyer and seller in a contract are domiciled in different states.
”4. The issuing of a policy of insurance is not a transaction of commerce [emphasis added] within the meaning of the latter of the two clauses, even though the parties be domiciled in different States, but is a simple contract of indemnity against loss.” —Paul v. Virginia, 1869.
In fact, moving passengers and freight is done under Contract of Carriage, not treated as commerce, correction welcome.
Next, Justice Joseph Story wrote the best paragraph that I've seen so far about how not to interpret the Commerce Clause, everybody, me included, falling into this trap at times.
In fact, both Story and Thomas Jefferson had indicated that federal government's very few, enumerated powers need to be interpreted narrowly, or else you're not going to have a constitutionally limited power federal government for long.
"The question comes to this, whether a power, exclusively for the regulation of commerce, is a power for the regulation of manufactures? The statement of such a question would seem to involve its own answer. Can a power, granted for one purpose, be transferred to another? If it can, where is the limitation in the constitution? Are not commerce and manufactures as distinct, as commerce and agriculture? If they are, how can a power to regulate one arise from a power to regulate the other? It is true, that commerce and manufactures are, or may be, intimately connected with each other. A regulation of one may injuriously or beneficially affect the other. But that is not the point in controversy. It is, whether congress has a right to regulate that, which is not committed to it, under a power, which is committed to it, simply because there is, or may be an intimate connexion between the powers. If this were admitted, the enumeration of the powers of congress would be wholly unnecessary and nugatory. Agriculture, colonies, capital, machinery, the wages of labour, the profits of stock, the rents of land, the punctual performance of contracts, and the diffusion of knowledge would all be within the scope of the power; for all of them bear an intimate relation to commerce. The result would be, that the powers of congress would embrace the widest extent of legislative functions, to the utter demolition of all constitutional boundaries between the state and national governments [emphases added]." —Joseph Story, Commentaries on the Constitution 2:§§ 1073--91
"In every event, I would rather construe so narrowly as to oblige the nation to amend, and thus declare what powers they would agree to yield, than too broadly, and indeed, so broadly as to enable the executive and the Senate to do things which the Constitution forbids." —Thomas Jefferson: The Anas, 1793.
How narrowly should the Commerce Clause be interpreted? Based on my understanding of someone who engages in commerce, I would have argued that Commerce Clause reasonably implicitly gives Congress the "necessary and proper" power to regulate the value of money, define weights and measures as examples.
But if that's the case, then why did Constitutional Convention delegates make the effort to enumerate these "reasonably implied" powers separately in Clause 5 of Section 8?
Exempted from Article I, Section 8...
"Clause 3: To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;"
"Clause 5: To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;"
We're back to Jefferson's justification of narrow interpretations of fed's very limited, constitutionally enumerated powers.
Insights welcome.
Based on a preliminary read, I do have a couple of comments and questions.
Lawsuits...how many federal lawsuits have been filed challenging the FAA's power to regulate aviation?
In fact, moving passengers and freight is done under Contract of Carriage, not treated as commerce, correction welcome.
If you have a ticket (contract) to fly on an airline from Denver to Atlanta in July, and the pilot announces that "due to the density altitude, V1 is higher than V2. What would you do?
What if the pilot announced that the CG of the aircraft is currently at 55% MAC and that he needs to run the engines to shift fuel to get the CG within limits. What would you do?
In both of these situations, people could die.
In fact, a lot of FAA regulations are the result of aircraft accidents and in many of those cases, people died.
If your position is that under "Jefferson's justification of narrow interpretations of fed's very limited, constitutionally enumerated powers", the FAA requires a constitutional amendment, then I cannot argue against that.
That's all for now. I might have more to say tomorrow.
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