Free Republic
Browse · Search
General/Chat
Topics · Post Article

To: SunkenCiv
What it means is this - the US federal government is authorized to exercise only those powers which are specifically given to it in the Constitution. Nothing more, and nothing less. ... Period. End of story.
The 10th Amendment isn't entirely dead. Though it is treated like a Red Headed Step Child and beaten like a rented mule whenever Congress can get away with it -- by incorporating the Commerce Clause into EVERY 'law' they can dream up.

Thankfully, the "Rehnquist Court" started to reign in Congress and their abuse of the 'CC' in US v Lopez. Justice Alito also tried in his dissent in US v Rybar (1) when he was on the Third Circuit Court of Appeals.

This is from US v Lopez ...

The Court's opinion focused on the third category—regulation of activities that substantially affect interstate commerce. The opinion rejected the government's argument that because crime negatively impacted education Congress might have reasonably concluded that crime in schools substantially affects commerce. The Court reasoned that if Congress could regulate something so far removed from commerce, then it could regulate anything, and since the Constitution clearly creates Congress as a body with enumerated powers, this could not be so.

~~ snip~~

It is important to note that although the ruling stopped a decades-long trend of inclusiveness under the commerce clause, it did not reverse any past ruling about the meaning of the clause. Later, Rehnquist stated that the Court had the duty to prevent the legislative branch from usurping state powers over policing the conduct of their citizens. He admitted that the Supreme Court had upheld certain governmental steps towards taking power away from the states, and cited Lopez as a decision that finally stepped in to check the government's authority by defining clearly between state and federal powers.

'Lopez' was really HUGH. It killed Di-Fi's pet law, the 'Gun Free School Zone'. For years she had a long RANT on her senate web page about the decision being 'unfair' as the 'intent' of the law was what mattered because it was "for the children" and constitutionality shouldn't have mattered (you know, she really is quite nuts).

(1) Rybar and the 'CC' is why Turban Durban and the RATS tried to scuttle his appointment to SCOTUS.

17 posted on 02/09/2009 7:48:09 AM PST by Condor51 (The difference between stupidity and genius is that genius has its limits)
[ Post Reply | Private Reply | To 1 | View Replies ]


To: Condor51
Good point on the bastardization of the Commerce Clause. Here are a couple of writings on its original meaning:

James Madison to Joseph C. Cabell, 13 Feb. 1829

For a like reason, I made no reference to the "power to regulate commerce among the several States." I always foresaw that difficulties might be started in relation to that power which could not be fully explained without recurring to views of it, which, however just, might give birth to specious though unsound objections. Being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it.

Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged.

http://press-pubs.uchicago.edu/founders/documents/a1_8_3_commerces19.html

_____________________________________________

Excerpt from Chief Justice John Marshall's opinion in Gibbons:

They [inspection laws] form a portion of that immense mass of legislation, which embraces everything within the territory of a State, not surrendered to the general government: all which can be most advantageously exercised by the States themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c., are component parts of this mass.

No direct general power over these objects is granted to Congress; and, consequently, they remain subject to State legislation.

-J. Marshall, Gibbons v Ogden, 1824

Since the New Deal, Congress HAS taken direct general power over many of these objects. Not only has the original meaning been violated, so has stare decicis.

23 posted on 02/09/2009 11:44:10 AM PST by Ken H
[ Post Reply | Private Reply | To 17 | View Replies ]

Free Republic
Browse · Search
General/Chat
Topics · Post Article


FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson