Posted on 12/19/2014 10:16:21 PM PST by right-wing agnostic
Co-blogger Jonathan Adler and Vanderbilt law professor Robert Mikos have pointed out some of the flaws in the lawsuit filed by Nebraska and Oklahoma urging a federal court to invalidate marijuana legalization in neighboring Colorado. In the unlikely event that the plaintiff states prevail, they will also have set a very dangerous precedent one that conservatives are likely to rue in other areas.
Nebraska and Oklahoma argue that Colorados decision to legalize marijuana under state law, in the face of continuing federal prohibition, harms neighboring states because it facilitates the flow of marijuana across their borders and may increase crime there. Liberal states with strict gun control laws raise exactly the same complaints about the flow of guns from neighboring conservative states with relatively permissive firearms laws. If Nebraska and Oklahoma can force Colorado to criminalize marijuana under state law because the federal government has done so under federal law, then Maryland can force Virginia to ban any gun sales that are restricted under federal law. Liberals have, in fact, advocated the enactment of stronger federal gun control laws for years. The same goes for conservative states that have less restrictive labor regulations or environmental regulations than neighboring states do.
(Excerpt) Read more at washingtonpost.com ...
I'm sure their definition of the first amendment didn't include nude dancing as protected speech, so yeah.
"Keeping in mind that the principle of judicial review was not formalized until Marbury v Madison in 1803."
Correct. Prior to that, there was no final arbiter. Post-1803 the U.S. Supreme Court was the final arbiter -- meaning that if they ruled a law constitutional, it was constitutional.
"The meaning with which a term is used on FR. Did you really not know that?"
That, I got. What I didn't get was the actual FR meaning of the term "unconstitutional".
"Most FReepers don't agree that the USSC has the authority to effectively rewrite the Constitution with "emanations" or "penumbras" - or "substantial effects".
Neither do I. But that doesn't turn "constitutional" into "unconstitutional" as it does in your world.
"I'm not sure what you're asking here."
I thought I asked what your point was. You claim a law is unconstitutional, you go to great lengths to try to support your claim, then you ... do nothing. Obey the law. Ignore the law. Whatever. Your choice.
Contrast that to my point: The U.S. Supreme Court ruled the law constitutional. Meaning the law IS constitutional and is to be followed to avoid penalties.
As a nation, we operate under the rule of law, not the rule of man. Neither FR or DU or you or me decides constitutionality.
"This was a narrow ruling."
Semantics. If the ruling only applied to carriers, no future court could use the ruling for other than carriers. Yet the Wickard court applied the deision to wheat.
I'm sure their definition of the first amendment didn't include nude dancing as protected speech, so yeah.
The USSC has held (California v Larue) that at least some nude dancing is protected speech, and therefore by your definition that is the constitutional position - but we agree that the Founders would say otherwise.
So now that's the (modern) dictionary, FR usage, AND the Founders all defining constitutionality in a way other than you do.
Keeping in mind that the principle of judicial review was not formalized until Marbury v Madison in 1803.
Correct. Prior to that, there was no final arbiter. Post-1803 the U.S. Supreme Court was the final arbiter -- meaning that if they ruled a law constitutional, it was constitutional.
No, meaning it was to be enforced as any other law.
What I didn't get was the actual FR meaning of the term "unconstitutional".
What puzzled you about this? "FR usage conforms with the dictionary definition: many FReepers agree that Roe v Wade and Obamacare are unconstitutional, U.S. Supreme Court rulings to the contrary notwithstanding."
Most FReepers don't agree that the USSC has the authority to effectively rewrite the Constitution with "emanations" or "penumbras" - or "substantial effects".
Neither do I. But that doesn't turn "constitutional" into "unconstitutional" as it does in your world.
Semantics. What do you call it when the USSC exceeds its authority and effectively rewrites the Constitution?
You claim a law is unconstitutional, you go to great lengths to try to support your claim, then you ... do nothing.
So long as self-professed "conservatives" are weaseling around the unconstitutionality of Roe v Wade, Obamacare, and "substantial effects" empowerment of the federal Leviathan, I'll have plenty to do.
As a nation, we operate under the rule of law, not the rule of man. Neither FR or DU or you or me decides constitutionality.
Straw man - FR and I can and do say that Roe v Wade and Obamacare are not in accord with the Constitution.
This was a narrow ruling.
If the ruling only applied to carriers, no future court could use the ruling for other than carriers.
Your conclusion doesn't follow from your premise. You may as well claim that if the Constitution didn't have a right to abortion "emanating" from its "penumbras" no court could say it did.
As I said before, if the U.S. Supreme Court has not yet ruled on an issue, constitutionality can be questioned. The Founders, therefore, are free to express their opinion. You, on the other hand ...
"FR usage conforms with the dictionary definition: many FReepers agree that Roe v Wade and Obamacare are unconstitutional, U.S. Supreme Court rulings to the contrary notwithstanding."
Repetition does not lead to clarity.
Unconstitutional why? Because the majority of FR interprets the constitution differently? Flash: So does the majority at DU. Doesn't mean theirs (or yours) is the one, true definition.
"What do you call it when the USSC exceeds its authority and effectively rewrites the Constitution?"
Whoa! According to who? You? You and your dictionary and "FR usage"?
Do you not allow for the possibility that there are tens of millions of people who believe just the opposite? Sure. Maybe they're wrong. But this isn't about right or wrong -- it's about what's constitutional and what isn't. And on that issue, the U.S. Supreme Court is the final arbiter.
"You may as well claim that if the Constitution didn't have a right to abortion "emanating" from its "penumbras" no court could say it did."
Roe v Wade was settled on a "right to privacy". I have zero interest in arguing whether we have a constitutional right to privacy or, if we do, whether that right covers abortion.
My point is that the U.S. Supreme Court ruled that it did, and that is now law.
As I said before, if the U.S. Supreme Court has not yet ruled on an issue, constitutionality can be questioned. The Founders, therefore, are free to express their opinion.
And by your account that "opinion" would be wrong on all those issues - such as nude dancing as protected speech - on which the USSC has ruled to the contrary. I'll let your conclusion that courts know the Constitution better than its authors did speak for itself.
FR usage conforms with the dictionary definition: many FReepers agree that Roe v Wade and Obamacare are unconstitutional, U.S. Supreme Court rulings to the contrary notwithstanding.
Repetition does not lead to clarity.
Unconstitutional why? Because the majority of FR interprets the constitution differently? Flash: So does the majority at DU. Doesn't mean theirs (or yours) is the one, true definition.
Down the relativist rabbit hole: because people disagree about the truth there is no truth. Part of the genius of the Founding Fathers was to compose a Constitution that could be understood by any well-read citizen, so we have no need to rely on lawyers, legal scholars, or even justices to tell us what is and is not in accord with the Constitution. If we disagree about what is and is not in accord with the Constitution, the place to start is the text of the Constitution - not the rulings of packing-threat-cowed courts and their successors.
Most FReepers don't agree that the USSC has the authority to effectively rewrite the Constitution with "emanations" or "penumbras" - or "substantial effects".
Neither do I. But that doesn't turn "constitutional" into "unconstitutional" as it does in your world.
What do you call it when the USSC exceeds its authority and effectively rewrites the Constitution?
Whoa! According to who?
According to YOU: '[me:] Most FReepers don't agree that the USSC has the authority to effectively rewrite the Constitution with "emanations" or "penumbras" - or "substantial effects".' '[YOU:] Neither do I.'
You agreed at least that it's possible in principle for the USSC to exceed its authority and effectively rewrite the Constitution ... what do you call such exceedings if not "unconstitutional"?
Do you not allow for the possibility that there are tens of millions of people who believe just the opposite? Sure. Maybe they're wrong. But this isn't about right or wrong
Sez you. Nobody disputed that the way we currently do things is to treat USSC rulings as final with regard to the enforceable content of the law - that's just your red herring.
If the ruling only applied to carriers, no future court could use the ruling for other than carriers.
You may as well claim that if the Constitution didn't have a right to abortion "emanating" from its "penumbras" no court could say it did.
Roe v Wade was settled on a "right to privacy". I have zero interest in arguing whether we have a constitutional right to privacy or, if we do, whether that right covers abortion.
So you don't dispute that the major premise of your "no future court" argument implies that if the Constitution didn't have a right to abortion "emanating" from its "penumbras" no court could say it did. Got it.
My point is that the U.S. Supreme Court ruled that it did, and that is now law.
Nobody said otherwise - that's just your red herring.
Not wrong. Contrary.
"was to compose a Constitution that could be understood by any well-read citizen, so we have no need to rely on lawyers, legal scholars, or even justices to tell us what is and is not in accord with the Constitution."
What is an "unreasonable" search? A "speedy" trial? "Excessive" bail? "Cruel and unusual" punishments?
What speech is protected? What are "arms"? What is the definition of "to keep" and "to bear"? Ask 100 people and you'll get 100 answers.
And that's just the wording of the constitution. What about the interpretation of the tens of thousands of laws which are not so easy to understand? Can we pry the average American away from Wheel of Fortune to memorize obscure legal cases and to compose clearly reasoned opinions about ERISA pre-emption, the doctrine of equivalents in patent law, limitation of liability in admiralty, and supplemental jurisdiction under Section 1367?
"You agreed at least that it's possible in principle for the USSC to exceed its authority and effectively rewrite the Constitution ... what do you call such exceedings if not "unconstitutional"?
That would be my opinion. My opinion doesn't change the ruling. If they rule constitutional, it's constitutional.
What I don't understand is how you can tell me that the USSC exceeded its authority. I'd really like to know how you know that.
"So you don't dispute that the major premise of your "no future court" argument implies that if the Constitution didn't have a right to abortion "emanating" from its "penumbras" no court could say it did. Got it."
Get this. The court ruled a constitutionally protected right to privacy under which abortion is legal. Meaning it's legal.
You like what ifs? What if the Roe court had ruled that abortion wasn't a federal issue and that it was up to each state (as it was before Roe v Wade)? And let's say 75% of the states ended up legalizing abortion. Fine with you?
Not wrong. Contrary.
I'll let your conclusion that courts know the Constitution better than its authors did speak for itself.
Part of the genius of the Founding Fathers was to compose a Constitution that could be understood by any well-read citizen, so we have no need to rely on lawyers, legal scholars, or even justices to tell us what is and is not in accord with the Constitution.
What is an "unreasonable" search?
One conducted without a warrant satisfying the criteria set out in the Fourth Amendment.
A "speedy" trial? "Excessive" bail? "Cruel and unusual" punishments?
Left to judicial discretion by the Bill of Rights - which cannot reasonably said of Article I Section 8's "among the several States".
What speech is protected?
Anything not violating anyone's rights.
What are "arms"?
Any implement necessary to the security of a free State.
What is the definition of "to keep" and "to bear"?
Seriously?
Ask 100 people and you'll get 100 answers.
Still down the relativist rabbit hole: because people disagree about the truth there is no truth.
And that's just the wording of the constitution. What about the interpretation of the tens of thousands of laws which are not so easy to understand? Can we pry the average American away from Wheel of Fortune to memorize obscure legal cases and to compose clearly reasoned opinions about ERISA pre-emption, the doctrine of equivalents in patent law, limitation of liability in admiralty, and supplemental jurisdiction under Section 1367?
How is any of that relevant to the matter at hand?
You agreed at least that it's possible in principle for the USSC to exceed its authority and effectively rewrite the Constitution ... what do you call such exceedings if not "unconstitutional"?
That would be my opinion.
Nonresponsive. If you believed that a ruling exceeded the USSC's authority and effectively rewrote the Constitution, what adjective(s) would you apply to that ruling?
My opinion doesn't change the ruling.
Nobody said otherwise - that's still just your red herring.
What I don't understand is how you can tell me that the USSC exceeded its authority. I'd really like to know how you know that.
The same way YOU know that when YOU say "Neither do I [agree that the USSC has the authority to effectively rewrite the Constitution]".
So you don't dispute that the major premise of your "no future court" argument implies that if the Constitution didn't have a right to abortion "emanating" from its "penumbras" no court could say it did. Got it.
Get this. The court ruled a constitutionally protected right to privacy under which abortion is legal. Meaning it's legal.
Nobody said otherwise - that's still just your red herring.
You like what ifs?
They're often indispensable to reasoned consideration of an issue.
What if the Roe court had ruled that abortion wasn't a federal issue and that it was up to each state (as it was before Roe v Wade)? And let's say 75% of the states ended up legalizing abortion. Fine with you?
A 25% improvement over the status quo - why would I not like that? (Am I supposed to be weighing that against the notion that a "living Constitution" USSC might ever declare a right to life that is binding on all states?)
Someone has to determine if a law passed by Congress and signed by the President is constitutional, right? So, who's going to do that?
I don't care if the constitution "could be understood by any well-read citizen". What about the laws?
"If you believed that a ruling exceeded the USSC's authority and effectively rewrote the Constitution, what adjective(s) would you apply to that ruling?"
If I disagreed with the USSC's interpretation of the constitution, I've called their resultant rulings many things -- wrong, stupid, idiotic, lame-brained. But I've never argued about the constitutionality of their decision, nor did I ever accuse the USSC of exceeding their authority or rewriting the constitution.
Perhaps you would like another body to decide constitutionality? Congress? The people? The President? FR?
"The same way YOU know that when YOU say "Neither do I [agree that the USSC has the authority to effectively rewrite the Constitution]".
I said the USSC does not have the authority to effectively rewrite the Constitution. I stand by that.
YOU are the one saying the USSC IS rewriting the Constitution by declaring laws constitutional. So I'll ask again, "How do you know that?"
"Nobody said otherwise - that's still just your red herring."
You said it was unconstitutional.
"A 25% improvement over the status quo - why would I not like that?"
You would if you were making an anti-abortion argument. Which you obviously are.
I was making a constitutional argument, where feelings and an agenda don't get in the way of arriving at a conclusion based on legal precedent, facts and logic.
The same institution as currently does - changing that arrangement remains merely your red herring.
If you believed that a ruling exceeded the USSC's authority and effectively rewrote the Constitution, what adjective(s) would you apply to that ruling?
If I disagreed with the USSC's interpretation of the constitution, I've called their resultant rulings many things -- wrong,
That's a 180-degree turn from your previous contention that "this isn't about right or wrong" - and a turn in the right direction. Bravo! What you wrote is what people mean when they call a USSC ruling "unconstitutional".
Now that we've finally cleared this up, you can substantively address Ken H's statement in post #40 about "the unconstitutional exercise of federal power under the expansive Commerce Clause, which trashes the Tenth Amendment."
Perhaps you would like another body to decide constitutionality? Congress? The people? The President? FR?
No, that's still just your red herring.
YOU are the one saying the USSC IS rewriting the Constitution by declaring laws constitutional.
No, that's not what I'm saying. I'm saying the USSC IS rewriting the Constitution by basing rulings on "emanations" or "penumbras" - or "substantial effects".
My opinion doesn't change the ruling.
Nobody said otherwise - that's still just your red herring.
You said it was unconstitutional.
The two statements are equivalent only under your definition, for which you've provided no support.
What if the Roe court had ruled that abortion wasn't a federal issue and that it was up to each state (as it was before Roe v Wade)? And let's say 75% of the states ended up legalizing abortion. Fine with you?
A 25% improvement over the status quo - why would I not like that?
You would if you were making an anti-abortion argument. Which you obviously are.
By answering YOUR question? LMAO!
I was making a constitutional argument, where feelings and an agenda don't get in the way of arriving at a conclusion based on legal precedent, facts and logic.
Roe v Wade was agenda driven and based on "emanations" from "penumbras" rather than the text of the Constitution.
You playing some kind of "gotcha" game? I said I believed their interpretation (and resultant ruling) to be wrong. But that's based on what I think is the right interpretation. It's my opinion. Also, I never claimed their ruling was unconstitutional.
"What you wrote is what people mean when they call a USSC ruling "unconstitutional".
Not even close. You seem to think you know what is ultimately "right" -- based on "the dictionary and FR usage", I guess. Any variance, therefore, must be "wrong" and unconstitutional. Well, as I said, there is no ultimate "right and wrong".
"I'm saying the USSC IS rewriting the Constitution by basing rulings on "emanations" or "penumbras" - or "substantial effects".
Banning intrastate drugs is based on the court's interpretation of "to regulate". If there's a nexus between intrastate and interstate commerce, Congress could regulate both.
No rewriting necessary. No big mystery. No conspiracy.
"By answering YOUR question? LMAO!"
No. By the way you answered it.
A constitutionalist would say that, in their opinion, abortion is a state issue and would therefore agree with the (hypothetical) court ruling. There would be no, "Yay! 25% fewer abortions!"
Not even close. You seem to think you know what is ultimately "right" -- based on "the dictionary and FR usage", I guess.
Are you that clueless, or are you hoping other FReepers are? What I base on the dictionary and FR usage is what it means to call a ruling "unconstitutional" (in contrast to your baseless definition); my statements about the unconstitutionality of particular rulings are based on the text of the Constitution.
Well, as I said, there is no ultimate "right and wrong".
Seems contradictory to your use of words like "stupid, idiotic, lame-brained" - a relativist has no obvious basis for such vehement vocabulary (nor any apparent reason to bother stating any opinion).
I'm saying the USSC IS rewriting the Constitution by basing rulings on "emanations" or "penumbras" - or "substantial effects".
Banning intrastate drugs is based on the court's interpretation of "to regulate". If there's a nexus between intrastate and interstate commerce, Congress could regulate both.
No rewriting necessary.
Neither "nexus" nor "substantial effect" nor any synonym appear in the text of the Constitution.
What if the Roe court had ruled that abortion wasn't a federal issue and that it was up to each state (as it was before Roe v Wade)? And let's say 75% of the states ended up legalizing abortion. Fine with you?
A 25% improvement over the status quo - why would I not like that?
You would if you were making an anti-abortion argument. Which you obviously are.
By answering YOUR question? LMAO!
No. By the way you answered it.
A constitutionalist would say that, in their opinion, abortion is a state issue and would therefore agree with the (hypothetical) court ruling. There would be no, "Yay! 25% fewer abortions!"
So if one has opinions other than constitutional ones, one is not a constitutionalist? LOL! You need to post a copy of your personal dictionary.
Your silly games aside, I think that hypothetical ruling would be on much sounder constitutional footing than is Roe v Wade.
"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.
They didn't because Congress continued to regulate only interstate commerce, and only controlled intrastate activities when it affected their ability to regulate interstate commerce.
"Wherever the interstate and intrastate transactions of carriers are so related that the government of the one involves the control of the other, it is Congress, and not the State, that is entitled to prescribe the final and dominant rule; otherwise the Nation would not be supreme within the National field."
-- syllabus to the Shreveport Rate Cases
What is the point of giving Congress the power to regulate interstate commerce if states or individuals could undermine and subvert Congress' will?
Funny, the U.S. Supreme Court says the same thing.
Oh well, we agree to disagree. Let's move on.
"Neither "nexus" nor "substantial effect" nor any synonym appear in the text of the Constitution."
Neither does nude dancing, yet ....
"So if one has opinions other than constitutional ones, one is not a constitutionalist?"
Not at all. But it does indicate a possible hidden motive for making certain constitutional claims.
Yep. That's the way it was prior to 1973. But abortion was only legal in two mainland states, and poor women didn't have the means to get there.
That factor alone, in my opinion, put pressure on the USSC to find a way to make it legal everywhere.
Neither does nude dancing, yet ....
I'm prepared to agree that the ruling that Congress may regulate intrastate commerce that "substantailly effects" or has a "nexus" with interstate commerce is every bit as Constitutional as the ruling that nude dancing is protected by the First Amendment.
So if one has opinions other than constitutional ones, one is not a constitutionalist?
Not at all. But it does indicate a possible hidden motive for making certain constitutional claims.
Such motives are "possible" even absent a statement of opinion - and stating an opinion is the opposite of keeping it "hidden." But most importantly, reference to such possible motives prior to establishing the claim as unsupportable are the rankest sort of argument ad hominem.
Roscoe Filburn was not a registered carrier of interstate commerce.
That factor alone, in my opinion, put pressure on the USSC to find a way to make it legal everywhere.
I agree, that was their agenda.
RobertPaulsen?
Then I guess the Wickard court shouldn't have used the Shreveport case as precedent, huh?
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