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FR Poll Thread: Does the Interstate Commerce Clause authorize prohibition of drugs and firearms?
Free Republic ^ | 11-3-05

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.


TOPICS:
KEYWORDS: alito; banglist; commerce; commerceclause; frpoll; herecomesmrleroy; interstate; interstatecommerce; madison; no; scotus; thatmrleroytoyou; wodlist
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To: robertpaulsen
And we have the power every two years to wipe the slate clean and start over with 435 brand new legislators who write those laws.

You and Thomas Jefferson are statists!!!!!

"The elective franchise, if guarded as the ark of our safety, will peaceably dissipate all combinations to subvert a Constitution, dictated by the wisdom, and resting on the will of the people."
--Thomas Jefferson

201 posted on 11/05/2005 2:54:04 PM PST by Mojave
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To: robertpaulsen
Who would you prefer? "The People"?

Yes. AKA "juries". In cases where the federal government's authority is on firm ground, it should be no trouble at all for a prosecutor to convince a jury that enforcement of the law in a particular case is necessary to the effective exercise of legitimate Constitutional authority. In the cases where the prosecutor can't convince a jury, I would posit that the claimed authority was on at best shaky ground and its non-enforcement would thus be a good thing.

Indeed, in most federal cases either the accused offense is one that directly involves an enumerated power, or else is of a nature such that the defendant's actions may be presumed to conflict with an enumerated power; the federal prosecutor would thus have to take any significant time presenting the matter to the jury. On the other hand, in cases where the defendant's actions are merely presumed to conflict, the defendant should have the right to try to convince a jury that his particular actions are not of a nature to conflict. If the defendant can do so, then he should be acquitted.

202 posted on 11/05/2005 2:57:44 PM PST by supercat (Don't fix blame--FIX THE PROBLEM.)
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To: robertpaulsen
Congress cannot simply "delare" something. Lopez and Morrison demonstrated that.

I thought the problem in Lopez is that the government didn't declare any "interstate nexus". And remind me which case is Morrison?

203 posted on 11/05/2005 3:00:28 PM PST by supercat (Don't fix blame--FIX THE PROBLEM.)
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To: robertpaulsen
can make the argument that Congress can get involved in ground transportation to the extent necessary to place obstructions thereto, and back it up with actual law.

You mean you can "back it up" with opinions from judges? Big deal. Back it up with the Constitution, or don't waste my time.

Correct. Unless they have a substantial effect on the interstate commerce that Congress is currently (and constitutionally) regulating.

So you claim. But the Constitution says nothing about substantial effects.

204 posted on 11/05/2005 3:01:01 PM PST by inquest (FTAA delenda est)
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To: robertpaulsen
Yep. And we have the power every two years to wipe the slate clean and start over with 435 brand new legislators who write those laws.

Unfortunately, we won't really have that power as long as Gerrymandering is allowed.

205 posted on 11/05/2005 3:01:49 PM PST by supercat (Don't fix blame--FIX THE PROBLEM.)
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To: supercat
"As a practical matter, I would think it useful for Congress to have authority over airspace and airwaves even for intra-state flights and transmissions, but I see nothing in the Constitution that gives it such authority."

Specifically? You're right. It's not there.

(Hoo boy.)

206 posted on 11/05/2005 3:02:41 PM PST by robertpaulsen
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To: robertpaulsen
Many lower courts have ruled that its original intent was for the federal government not to prevent states from forming militias.

And preventing state militias would give the federal government an effective monopoly on the ability to use force internally. Either way, you said earlier that its original intent was for people to be able to own muskets. Already you're changing your story.

207 posted on 11/05/2005 3:03:41 PM PST by inquest (FTAA delenda est)
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To: robertpaulsen
Why should Madison's words be translated biblically?

1. Do you concede that "rather than" means "and not" in biblical translation?

2. Why should "rather than" have a different meaning in the writings of Madison?

208 posted on 11/05/2005 3:03:54 PM PST by Ken H
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To: robertpaulsen
Correct. Unless they have a substantial effect on the interstate commerce that Congress is currently (and constitutionally) regulating. Which, oops, they all do.

Perhaps you could help me out there. Compare the U.S. Constitution with an alternate version in which I.8 simply reads:

Congress shall have the power to pass any and all such laws as it sees fit, except for such laws as would be expressly forbidden by this Constitution.
Can you identify for me any law that Congress might pass under the latter Constitution which could not--possibly with some rewording but no functional change--be passed under the former (present) one? If they are not functionally identical, there should be at least one such proposable piece of legislation. And if they are functionally identical, why do you suppose Madison wasted all that verbiage on I.8?
209 posted on 11/05/2005 3:07:11 PM PST by supercat (Don't fix blame--FIX THE PROBLEM.)
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To: robertpaulsen
Specifically? You're right. It's not there. (Hoo boy.)

What's the "(Hoo boy)" comment for? Had a court ruled that Congress did not have such authority, do you really think there would have been a problem with passing a Constitutional amendment to rectify the situation?

210 posted on 11/05/2005 3:09:03 PM PST by supercat (Don't fix blame--FIX THE PROBLEM.)
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To: supercat
"On the other hand, if he buys from someone who claims to have grown it himself, or if he sells to someone with a doctor's script who claims to want it for personal in-state use, such a person would not have reason to believe that pot would be involved in interstate commerce."

Would you apply this same thinking to our DWI laws? I mean, just because someone has been drinking and driving is no reason to believe they'll get into an accident (the reason for the law). Shouldn't that person be judged individually? What about speeding? Same thing. Shooting a gun in a public place? Oh, you know I can go on and on.

So, all those laws need to be changed to allow individuals to make their case?

211 posted on 11/05/2005 3:09:29 PM PST by robertpaulsen
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To: tacticalogic

No answer is possible in the abstract. Virtually all cases present mixed questions of law and fact. Some areas of law, like personal injury cases, are notoriously fact driven, while others, like property law, tend to be rule intensive. Where any particular controversy falls though depends on how the case is configured.


212 posted on 11/05/2005 3:10:58 PM PST by Rockingham
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To: Rockingham
Then the scoundrels and fools in the New Deal era made a wreck of the Constitution, according to you. I believe you applied those terms to judicial accomplices in favor of Wickard.

You are getting far afield from the issue at hand: the scope of the federal power under the commerce clause.

In a debate, I think it's important to be clear on where the participants stand on important points, such as Wickard and original intent. That's why I included my bolded remark above.

213 posted on 11/05/2005 3:18:43 PM PST by Ken H
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To: Rockingham
No answer is possible in the abstract.

Which means what? That it is impossible to pre-define any limit on the scope of the federal commerce power? Sounds like that "living document" nonsense.

214 posted on 11/05/2005 3:20:11 PM PST by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
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To: supercat
An interesting point. There is heartburn in some conservative circles about federal limitations on gun suits due to worries that it would undermine arguments against a broad reading of the commerce clause -- which to me is like worrying that your automatic sprinkler system will over-water the lawn after the levee has broken and you have been flooded out.

As for the projected slave compensation suits, there are potent due process, equal protection, and ex post fact arguments against them that could reach the federal courts through declaratory actions or via direct appeal to the US Supreme Court. Or Congress could act via the commerce clause.
215 posted on 11/05/2005 3:20:59 PM PST by Rockingham
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To: robertpaulsen
Would you apply this same thinking to our DWI laws? I mean, just because someone has been drinking and driving is no reason to believe they'll get into an accident (the reason for the law).

You're fogetting that state powers, unlike federal powers which are "few and defined" (Madison's words), are "numerous and indefinite" (also Madison's words). If a government was given only the authority to punish irresponsible motor vehicle accidents, then there would be no authority to punish drunk driving. Such a limitation on power, however, I'm pretty sure does not exist in any state constitution.

216 posted on 11/05/2005 3:21:57 PM PST by inquest (FTAA delenda est)
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To: robertpaulsen
Would you apply this same thinking to our DWI laws? I mean, just because someone has been drinking and driving is no reason to believe they'll get into an accident (the reason for the law). Shouldn't that person be judged individually? What about speeding? Same thing. Shooting a gun in a public place? Oh, you know I can go on and on.

First of all, states legislatures--unlike the Congress--generally have the power in their constitutions to pass any and all such laws as they see fit except as explicitly restricted. If a state legislature wanted to pass a law requiring that anyone travelling on a particular road paint green and purple stripes on their car, it would have the authority to do that. Secondly, a person should be able to make such arguments but in most cases it would be unlikely a jury would find them convincing since a state may have many reasons for passing various laws and a person would have to prove that his conduct didn't interfere with any of them.

Thirdly, you should note that one of the functions of juries has historically been to act as a check on lawmakers. Prior to the revolution, certain British tax laws were so hated that no American jury would ever convict anyone of breaking them no matter how solidly the facts of the case supported conviction. I would expect that there are probably some roads whose speed limits are sufficiently unpopular that a jury composed of people familiar with those roads would acquit anyone accused of going 15mph over the limit in light traffic on a clear day.

217 posted on 11/05/2005 3:22:40 PM PST by supercat (Don't fix blame--FIX THE PROBLEM.)
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To: Rockingham
As for the projected slave compensation suits, there are potent due process, equal protection, and ex post fact arguments against them that could reach the federal courts through declaratory actions or via direct appeal to the US Supreme Court. Or Congress could act via the commerce clause.

Fine. They could have passed a law that says anyone who ever had an alergic reaction to a cotton garment could sue the grower for $1,000,000. Product-liability lawsuits based on laws passed after the products have sold are common today (whether they would have been allowed in 1790 is another question) and I don't see any due-process or equal-protection issues there.

As to Congress' remedy via the Interstate Commerce clause, that would only be allowable if one accepts its applicability in the gun-lawsuit-shield act.

218 posted on 11/05/2005 3:28:32 PM PST by supercat (Don't fix blame--FIX THE PROBLEM.)
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To: mugs99
Way back when some Congress Critters decided that the Interstate Commerce Clause could be applied to anything moving in commerce between the States – or anything that might move between the States. The Supreme Court liked their reasoning and declared it Constitutional. I think, if memory serves – it involved a farmer who grew a small crop for his own use and did not wish to pay a tax.
It’s been a downhill slide ever since.
219 posted on 11/05/2005 3:28:41 PM PST by R. Scott (Humanity i love you because when you're hard up you pawn your Intelligence to buy a drink.)
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To: MileHi
If a gun, sold new in a given state 30 years ago, is resold today in the same state, how is it still "in interstate commerce"?

According to the Supreme Court, the gun might at some future time be sold out of State, therefore the clause applies.
220 posted on 11/05/2005 3:31:56 PM PST by R. Scott (Humanity i love you because when you're hard up you pawn your Intelligence to buy a drink.)
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