Posted on 01/03/2005 9:57:34 AM PST by CHARLITE
Or are you saying that Congress cannot prohibit that commerce since there is no state-on-state injustice going on?
You first. Answer the questions in 784.
You can ask all you want. It's an obviously loaded question and it isn't getting any more attention than it deserves.
No. You would either say "not" or you would say nothing.
The sun rises in the East. Or, The sun rises in the East, not the West.
That's how you exclude.
You don't say, The sun rises in the East, rather than the West.
"If the intent was to include either possible use expressing that intent would be accomplished by using the term "and", or some other term of inclusion."
I see. So I would say, For my vacation, I couldn't decide between Florida or California. I decided to go to Florida and California.
How about, For my vacation, I couldn't decide between Florida or California. I decided to go to Florida rather than California.
C'mon. Learn English.
It's how the clause is actually being used in the courts. I'd say that's pretty damn good evidence. Where's yours?
In my personal opinion, the prevention would cause an injustice. I have a right to ship my cattle, even if they're dead and rotting.
"Would it be considered "unjust" for someone to ship infected cattle to a stockyard, and thereby infecting healthy cattle that don't belong to them?"
Unjust? Everybody is doing it. They've been doing it for years. Why are you picking on me? Buyer beware!
"Would it discourage the interstate commerce in cattle if people were afraid to ship them for fear they might become infected in transit?"
Fear what? Infection? Screw it. Once I ship 'em, I'm done. I don't care if they get infected or not. I got my money.
So, there's your answer. The shippers don't care. Can Congress step in? Your turn.
Marshall wrote in Gibbons:
State inspection laws, health laws, and laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c. are not within the power granted to Congress.
rp wrote: It's how the clause is actually being used in the courts. I'd say that's pretty damn good evidence.
So Roe v Wade is good evidence for the interpretation that the Constitution protects the right to have an abortion?
Where's yours.
You have Marshall (who you cited as a Founding Father) in Willson v The Blackbird Creek Marsh Co.. He did not use the Dormant Commerce Clause doctrine as it later came to be used. I've quoted his opinion, which you have chosen to ignore.
He said that although there may have been an abridgement of navigation, the Court had no authority to make such a determination nor to apply a correction unless Congress had acted on the matter first.
Your Dormant Commerce Clause contradicts Marshall's opinion. It was a later invention of the Court, just like Roe v Wade.
That question answers itself. Of course they have the constitutional power to do something "provided they act within the U.S. Constitution". That doesn't really clear anything up, though.
On the other hand, an Article I, Section 10 restriction just sits there and accomplishes what it it supposed to. For example, "No state shall coin money." Pretty clear. It accomplishes what it is supposed to without having to going to court.
No prohibition in the Constitution accomplishes anything by itself. It needs to be enforced, in one manner or another. Absent an enforcement mechanism, it's just words.
rather than
CONJUNCTION:And not: "Gibson guitars—with their carved tops and necks that are fitted and glued to the body, rather than bolted on—are expensive to make" (Joshua Rosenbaum, New York Times February 11, 1998).
PREPOSITION:Instead of: "diseases in which the immune system plays the villain rather than the protector" (Sandra Blakeslee, New York Times December 31, 1996).
_________________________________________
KJV Proverbs 8.10: Receive my instruction, and not silver; and knowledge rather than choice gold.
BUMP
Apparently Congress thinks you don't have a right to if it's going to infect healthy cattle in the process.
Unjust? Everybody is doing it. They've been doing it for years. Why are you picking on me? Buyer beware!
Everybody does it, you say? There isn't a single cattle producer out there who is sending healthy cattle to market, who's product you're infecting and who's work you're corrpting with your dead rotting carcass? I seriously doubt it. Spare me the histrionics.
Fear what? Infection? Screw it. Once I ship 'em, I'm done. I don't care if they get infected or not. I got my money.
Well, that does sound like something you'd do, but the rest of the world doesn't operate like you do. Other people aren't done once they ship them. They have more cattle to raise and take to market. They can get top dollar for them if they're healthy, and rely on their reputations for producing healthy animals to keep buyers interested in bidding on them. If a cattle producer ships good quality, healthy animals to market expecting to get a good price for them, and they arrive sick and no one wants to buy them, he's going to have quite a different opinion than yours.
So, there's your answer. The shippers don't care. Can Congress step in? Your turn.
Sure Congress can step in. There's an obvious injustice to the producers who are producing and selling healthy animals, and to the degree that injustice is being caused through interstate commerce they can remedy it.
Then if we started using it differently, that would be evidence of a different original intent. Your idea of "pretty damn good evidence" is actually logically flawed use of evidence that won't pass even a rudimentary validity check. No wonder you're having such a hard time with this.
My evidence is the remaining writings of the Founders on the subject. In every instance where they talk about the power to RCATSS, they talk about it as a means of preventing injustice among the states. They do not talk about any other use or purpose for that power. There is no evidence in any of the other writings to support the contention that it was intended for anything other than that.
[kjv] Receive my instruction, and not silver;
[web] Receive my instruction rather than silver;
[niv] Choose my instruction instead of silver,
[rsv] Take my instruction instead of silver,
[bbe] Take my teaching, and not silver;
Some are specific, some talk in generalities. I agree that it can be used as a means of preventing injustice among the states. I have no problem with that. I never did.
I disagree that it can only be used for that purpose, however. And you cannot find one Founding Father who says that -- who limits the power to that one purpose.
"There is no evidence in any of the other writings to support the contention that it was intended for anything other than that."
Oh, puh-leeze!
I quoted Founding Father and United States Supreme Court Chief Justice John Marshall who said in an 1824 court opinion in "We are now arrived at the inquiry-What is this power? It 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."
This description of the power to regulate commerce among the several states speaks for itself. I see no limitation of "preventing injustices"!
This was in a USSC landmark case opinion by the Chief Justice of the USSC, also a Founding Father, written 5 years before Madison's private correspondence.
That's quite a stretch, isn't it?
After all, didn't Madison say the power was to be used "as a negative and preventive provision against injustice among the States themselves"? Where's the injustice by the state? Seems to me the injustice is being caused by the producer of unhealthy animals.
Didn't Madison also say that the injustice was the abuse of the power by the importing States in taxing the non-importing? He said nothing about unhealthy animals. There are many many references by Madison and other Founding Fathers that the abuses in question were due to state imposed taxes, tariffs, imposts, duties, etc.
Now, I agree that Congress may prohibit the interstate shipment of tainted or unhealthy beef. They did so in 1884, which was later upheld in Hoke v. United States, 227 U.S. 308 (1913). But that had nothing to do with any perceived injustice between producers. Justice McKenna delivered the opinion of the court:
"Our dual form of government has its perplexities, state and nation having different spheres of jurisdiction, as we have said; but it must be kept in mind that we are one people; and the powers reserved to the states and those conferred on the nation are adapted to be exercised, whether independently or concurrently, to promote the general welfare, material and moral. This is the effect of the decisions; and surely, if the facility of interstate transportation can be taken away from the demoralization of lotteries, the debasement of obscene literature, the contagion of diseased cattle or persons, the impurity of food and drugs, the like facility can be taken away from the systematic enticement to and the enslavement in prostitution and debauchery of women, and, more insistently, of girls."
Sounds to me as though Justice McKenna is talking about the positive purposes of the General Government.
In addition, in your favorite case, Hammer v Dagenhart, No. 704. Argued April 15, 16, 1918 June 3, 1918, Justice Day said in the opinion of the court:
"Articles heretofore barred and dealt with by this court have been such as could fairly be said to be "outlaws of commerce"; consequently all persons have been forbidden to ship them; the article itself is barred from commerce."
This was in a USSC landmark case that was about an exercise of the power to RCATSS for preventing an injustice. That is the context of the comment. You yourself described it as a "vague reference" to some "broader power". There is the sum of your evidence from the founders. A single sentence, containing what you think is a vague reference to some broader power.
Are you trying to discern their original intent, or are you looking for "emanations and penumbras"? "Vague references" to "some broader power" falls squarely into the domain of emanations and penumbras.
He did say that was an injustice, and that these injustices were the reason they considered giving the federal government the power to RCATSS. They also imagined that other "contrivances" might be implemented that would also constitute an injustice and should be dealt with by the same means. If Madison didn't say anything about unhealthy animals, which of the Founders did, that you enter this example into evidence?
Actually, a single sentence, containing what is a clear reference to some broader power (ie., "This power ... may be exercised to its utmost extent, and acknowledges no limitations"). Yeah, "no limitations" sounds a lot to me like "some broader power".
But not to you.
Actually, yours is the single sentence, containing what you think is not only a narrow use of power, but restricted to that narrow use.
"This was in a USSC landmark case that was about an exercise of the power to RCATSS for preventing an injustice."
Yes it was. And as I've said time and time and time again, perventing injustice is certainly part of the power to RCATSS. Where does Founding Father and Chief Justice John Marshall limit the power to just that purpose?
He doesn't. He does just the opposite.
And what direct bearing does this opinion have on the intent of the Founders when they wrote and ratified the Constitution? On what basis do you assert that this opinion rendered in 1913 by others, be considered their opinion in 1787? You have Justice McKenna describing the use of the power to RCATSS for the "positive purposes of the General Government". Now, when you can find one of the Founders describing this same kind of use you will have evidence to support your reading of Madison's letter. Until you do, you don't have it.
Unhealthy animals are those other contrivances?
And here I read that as state imposed revenue generating measures other than taxes, tariffs, imposts, duties, etc.
So he was referring to diseased cattle, huh?
"If Madison didn't say anything about unhealthy animals, which of the Founders did"
Would you expect the Founding Fathers to be this specific when writing the U.S. Constitution? That if this document didn't contain the phrase "unhealthy animals", it didn't apply to them? You're being silly.
In Hammer v Dagenhart, Justice Day said, "Articles heretofore barred and dealt with by this court have been such as could fairly be said to be "outlaws of commerce"; consequently all persons have been forbidden to ship them; the article itself is barred from commerce."
Let's just put "unhealthy animals" in the "outlaws of commerce" category, shall we?
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