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.
How about NYT v Sullivan?
“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.
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.
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.
Gonzales v Raisch. Thanks to George W Bush for knocking down the last barriers to federal control of every aspect of American life.