Posted on 01/03/2005 9:57:34 AM PST by CHARLITE
What made you change your mind? Last time you referenced that statement you said it was a "vague reference".
If you can tell me what it was that made the other articles they'd dealt with "outlaws of commerce", and in what context they were being dealt with, maybe we can.
Whoa!
Hey, if you can use a private letter written in 1829 as indicative of considered opinion in 1787, why can't I use a USSC opinion written in 1913 as indicative of considered opinion in 1787?
Statute of limitations run out?
There's five. Look them up yourself.
What are the specifics of the case? Unhealthy animals could well be the object of a "contrivance" that resulted if a state was allowing sick cattle to be shipped interstate that it wouldn't allow to be sold within it's own borders.
I told you before. Stop it with the "gotcha" games.
The power is indeed vague. But it is clear that it is broad.
Not to you, of course, who thinks that it's limited to removing injustices and prohibiting diseased cattle.
If you can find a USSC opinion rendered in 1913 by one of the Founders, you're welcome to use it. It's their intent we're looking for.
Not a "gotcha game". You say one thing, then you say something else. On what basis do you make these decisions that is so fluid? Are you trying to discern the intent of the Founders, or are you searcing for emanations and penumbras to justify a political agenda? Your methodology doesn't seem to match your objective.
The power is indeed vague. But it is clear that it is broad.
And what leads you to believe that the breadth is in reference to the purposes in may be applied to, rather than the range of remedies available in pursuit of the stated purpose?
Madison was referring to the future imposition of duties on imports and exports.
"Were these at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former. We may be assured by past experience, that such a practice would be introduced by future contrivances; and both by that and a common knowledge of human affairs, that it would nourish unceasing animosities, and not improbably terminate in serious interruptions of the public tranquillity."
-- Federalist #42
You only gave a partial quote. The full sentence is:
"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."
Marshall goes on to name some limitations prescribed:
"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."
What are the specifics of the case? What case was this that you think it evidence of the Founder's intent to grant the power to RCATSS for the "positive purposes of the General Government"?
I gave you one in an 1824 case which expanded the power of the Commerce Clause beyond your piddling restriction.
A long, long, long time ago.
I also gave you one in 1829 which mentioned the "Dormant Commerce Clause", a direct reference to the states resolving injustice among themselves without Congressional action.
Totally contrary to your interpretation of Madison's letter. Give it up.
Selective omission is not the hallmark of someone looking for original intent. It is, however indicative of someone searching for "penumbras and emanations". Robertpaulsen's methods don't seem consistent with an objective of determining original intent.
Because there is no such "stated purpose" in his quote. I looked for it. It's not there. There's no restriction.
If you found one in Marshall's words somewhere, quote it.
You know, this is pretty hypocritical coming from someone who uses a quote from Clarence Thomas and applies it across the board to a number of commerce clause cases of all shapes and sizes, despite the fact that his quote came from one specific unrelated case.
But Marshall's quote can't, huh?
Which case was that? What were they doing that wasn't an exercise in correcting an injustice among the states, that they expanded the power to encompass?
I also gave you one in 1829 which mentioned the "Dormant Commerce Clause", a direct reference to the states resolving injustice among themselves without Congressional action.
You still can't provide any evidence that the Founders intended the power to RCATSS to be used for the "positive purposes of the General Government" that doesn't require substantial assumptions about facts not in evidence. All you've done is pile a few inferences on top of each other to arrive at a conclusion, and you've had to do it with inferences that no one else finds rational.
That is not what the 1829 decision said. Did you even read the opinion?
Willson v. Blackbird Creek Marsh Co.
But the measure authorized by this act [passed by the State of Delaware] stops a navigable creek, and must be supposed to abridge the rights of those who have been accustomed to use it. But this abridgement, unless it comes in conflict with the Constitution or a law of the United States, is an affair between the government of Delaware and its citizens, of which this Court can take no cognizance.
The counsel for the plaintiffs in error insist that it comes in conflict with the power of the United States "to regulate commerce with foreign nations, and among the several states." If Congress had passed any act which bore upon the case, any act in execution of the power to regulate commerce, the object of which was to control state legislation over those small navigable creeks into which the tide flows, and which abound throughout the lower country of the middle and southern states; we should feel not much difficulty in saying that a state law coming in conflict with such act would be void. But Congress has passed no such act.
The repugnancy of the law of Delaware to the Constitution is placed entirely on its repugnancy to the power to regulate commerce with foreign nations and among the several states; a power which has not been so exercised as to affect the question.
We do not think that the act empowering the Black Bird Creek Marsh Company to place a dam across the creek, can, under all the circumstances of the case, be considered as repugnant to the power to regulate commerce in its dormant state, or as being in conflict with any law passed on the subject.[end excerpt]
Marshall did not use the Dormant Commerce Clause doctrine as it is being explained by you. Read the opinion, he says that unless Congress has acted, the Court has no basis for consideration of the power to RCATSS in its decision.
They aren't even consistent with the English language. His whole case hinges on "rather than" not being exclusive of what follows.
He ignores the evidence of biblical translators:
[kjv] Receive my instruction, and not silver;
[web] Receive my instruction rather than silver;
[niv] Choose my instruction instead of silver
tacticalogic: Which case was that? What were they doing that wasn't an exercise in correcting an injustice among the states, that they expanded the power to encompass?
He is misstating Gibbons, in which Marshall placed limits on the Commerce Clause:
"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."
I think he's hopeless. If he doesn't understand why he can't hold up an opinion written by the USSC in 1913 and say "See, here't the original intent of the Founders.", then he's obviously talking about an entirely different concept of "original intent" than everyone else.
He just can't accept that both Madison and Marshall contradict his view, and is willing to ignore authoritative English language sources in an attempt to make Madison's words fit with his position.
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