Posted on 11/03/2005 2:24:08 PM PST by inquest
There's a new poll up on the side. Do you think the interstate commerce clause of the Constitution authorizes federal laws against narcotics and firearms? Now lest everyone forget, this isn't asking whether you personally agree with such laws. It's about whether your honest reading of the Constitution can justify them.
While you're thinking it over, it might help to reflect on what James Madison had to say about federal power over interstate commerce:
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.I'll be looking forward to your comments.
I would suggest that the liability shield law should be predicated instead on the "full faith and credit" clause, which allows Congress the power to control the extent to which court decisions in one state are applicable to others.
I think it reasonable to think one motive for allowing such power was to let Congress restrain patently unreasonable court actions in one state against citizens of another--exactly the situation with gun lawsuits.
If a court in one state wanted to entertain a lawsuit against a gun manufacturer in that same state, I don't think the federal government would have the power to intervene under the "FF&C" clause. If courts try to go after in-state manufacturers, though, the manufacturers could avoid the action by pulling up roots and moving.
Or worse, "finding" that the availability of firearms interferes with people's Fourteenth-Amendment right to life, and that the only way to prevent such interence is to ban them completely? The Fourteenth Amendment post-dates the Second, after all. If Congress is allowed to predicate laws upon findings of fact which cannot be meaningfully challenged in court(*), there are no limits to its power.
(*)This would require that people be allowed to present evidence in trial court for the purpose of disproving those findings--something which is not currently allowed.
Brevity in laws (including the Supreme Law) is good when people are allowed to use common sense in interpretation. Unfortunately, juries today are discouraged from doing so.
One thing I'd really like to see would be for more focus to be placed on the "reasonable person" standard. Rather than trying to get into all sorts of nitty-gritty detail in the law to instruct a jury what a reasonable person might do or believe, it would be much better to give some hints and examples and let the jury figure it out.
For example, "The possession of more than XXX of drug YYY shall be considered prima facie evidence of intent to distribute." This would instruct a jury that if someone possessed that much of a drug, they should believe the person intended to distribute it unless shown some evidence to the contrary. It would be up to the jury to decide what contrary evidence would be credible or non-credible.
Actually, necessity is a credible argument in favor of comprehensive regulation as to drugs. Simply insisting upon the contrary does not answer the argument.
No.
Congress shall have the power to regulate commerce among the several States means just what it says.
To 'regulate' (or make regular) simply gives Congress the authority to oversee any transactions between the States. Say if the State of Kansas were to trade wheat for pineapples with the State of Hawaii, Congress would have the authority to step in and dictate HOW MANY bushels of wheat it would take to purchase a certain amount of pineapples.
This insures that the transaction is equitable for all parties concerned.
The Commerce Clause is NOT talking about physically moving material over the imaginary boundaries of the respective 'States', nor does it give Congress ANY authority over the People.
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"When all government, in little as in great things, shall be drawn to Washington as the Center of all power, it will render powerless the checks provided of one government on another and will become as venal and oppressive as the government from which we separated."
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They are not to do anything they please to provide for the general welfare, but only to lay taxes for that purpose. To consider the latter phrase not as describing the purpose of the first, but as giving a distinct and independent power to do any act they please which may be good for the Union, would render all the preceding and subsequent enumerations of power completely useless. It would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the United States; and as they sole judges of the good or evil, it would be also a power to do whatever evil they please ... Certainly no such universal power was meant to be given them. It was intended to lace them up straightly within the enumerated powers and those without which, as means, these powers could not be carried into effect.
Thomas Jefferson, Opinion on National Bank, 1791
That only makes sense if you hold the General Government to be only the legislative branch, and excluding the executive and judiciary. You seem to be trying to agree with a proposition not made.
An ingenious idea, but not plausible due to the strong reading given to the full faith and credit clause as leaving little room for Congressional tinkering. Also, equal protection arguments would be raised against special full faith and credit legal rules as to guns. These considerations also likely doom the federal Defense Of Marriage Act.
With the goal of that being ... what? That one or two states, or some group of individuals within one state, could undermine and subvert constitutional Congressional interstate regulatory efforts?
You're pretty funny.
Who gets to decide, and on what basis something has an "appreciable impact" on federal commerce? "Appreciable impact" doesn't seem to be any more than a re-hashing of "substantial effects". Under that doctrine, a majority of both houses of Congress, the President and 4 of 9 Supreme Court justices found that wife beating has a "substantial effect" on interstate commerce. One more liberal justice and the VAWA would have been upheld. What is this "appreciable impact" that they could not "find" that it meets that standard just as well?
I am confident that Madison was referring to Congress rather than federal court declaration. The passage in context otherwise makes little sense.
Good questions, and answers to them can be arrived at based on the facts in each case.
What do you find nonsensical about it? It seems pretty reasonable in light of the other writings on their idea of the nature of the commerce power, and it's intended purpose with regard to the regulation of internal commerce that the General Government referred to is just that. I don't see any reason to assume he used General Government when he actually meant just Congress.
One, although both powers mention "regulate commerce", only Congress may regulate commerce with foreign nations. This is done for the positive purposes of the general government.
Two, re: interstate commerce, it was envisioned that the states themselves would resolve injustices through the courts, rather than involving Congress in every dispute where, alone, the power could have been lodged (as with the commerce power with foreign nations).
This letter in no way implies that Congress cannot or should not regulate interstate commerce -- just that Madison didn't foresee Congress doing a lot of it. Now that Congress is doing more of it (constitutionally, I might add), posters like inquest are uncomfortable with this "expanded" power (which it is not) and look to the USSC to reign them in since the laws are popular and voters aren't interested in doing so.
Call it "libertarian judicial activism".
The "facts of the case" have to be measured against some standard to determine whether they fall within federal jurisdiction. The question at hand is that standard. Do the facts of the individual cases determine limit of federal jurisdiction under the commerce clause, or should there be objective criteria for what those limits are set before the cases are considered?
The letter describes the intended purpose of the commerce power. I don't see anything there to support the interpretation of it being of a speculative nature.
So Congress is to provide restraint against the exercise of the federal commerce power? It's Congress that's exercising the federal commerce power in the first place. So you're saying that Congress is supposed to be the only restraint on itself? That's certainly not what Madison was saying.
My reading of the passage is that Madison saw the commerce power as written as being without any limitation. (see my posts #60 and #67 above). Moreover, in the early decades of the Republic, judicial review was seen as having little role and Madison would not have contemplated it as a check on Congressional exercise of the commerce power. Indeed, rarely has the US Supreme Court overturned Congressional enactments on commerce clause grounds, and never did so until the 20th Century.
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