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 thought you wanted to expand the discussion to include the issues related to eminent domain and the issue of church and state. Different issues require an open mind to discuss each issue independently. You paint with a broad brush. Read the debate on this thread. You may just find the answers you seek to your questions.
The founders own writings make clear that the intention of the Insterstate Commerce clause was to remove the ability of the states to interfere with interstate commerce (for example, by taxing goods originating in another state in preference to in-state goods) by lodging that power in the federal government
I also strongly object to the feds "back door" approach to getting states to pass legislation by making federal funds dependent on their doing so
Some Gerrymanders favor Democrats; others favor Republicans. Nearly all, however, favor incumbents of BOTH parties (indeed, in a Gerrymandered map drawn by Democrats, the Republican incumbents are likely to be nearly unbeatable, and vice versa).
Personally, I'd favor passing some mathematically-defined rules to severely curtail Gerrymandering. My preferred proposal would be for the government to publish the necessary census data in machine-readable format and then invite any and all interested persons to submit district mappings in some specified machine-readable format. The submitted mapping which has the lowest "Gerrymander Quotient" (using some pre-defined formula) would then be used for the next decade.
Well, the USSC went further than that and said that it must not only have an effect on interstate commerce, it must have a substantial effect. So you do support the substantial effects reasoning. Is that correct?
Now, on the other hand, if Congress is regulating interstate commerce by banning interstate shipments of diseased livestock, then they also have authority over people doing things that physically encourage the interstate movement of diseased livestock, yes?
Or does "to regulate" not include "to ban"? Do you disagree with the statement, "Congress can certainly regulate interstate commerce to the extent of forbidding and punishing the use of such commerce as an agency to promote immorality, dishonesty, or the spread of any evil or harm to the people of other States from the State of origin."
Given that, from what I've read, Hebrew is not clear and unambiguous with such things, I'm not sure I'd concede that. While the cited passage most likely means what it says, any authority therefor rests with the translator and not with the original Word of God.
Again, I ask: if the SCOTUS had held that Congress could not exercise such authority without a Constitutional amendment, do you really think Congress would not have such authority? I think the effect of such a ruling would be the passage of an amendment to fix the problem, whereupon Congress would have the authority.
This is, what, the fifth time I've asked?
The people are doing all kinds of things that the law expressly prohibits. The Gummint is powerless to enforce most of the laws it creates if the people don't go along with it, and this was known to be the result even in the days of Aristotle. Aristotle said that a constitution must be compatible with the will of the people or the constitution will be ignored and replaced. Now, the situation we have is evidently possible since we have it. Another example is the existence of the modern corporation as a legal person. Where did that hugely monstrous part of the economy come from? Corporations are not expressly mentioned in the Consitution. The entire country has been divided up into real estate properties, yet the Constitution does not expressly mention private property rights. The West was populated, half the population living there by 1840 even though FedGov wanted nobody there at all except according to plan. What is the point of the FedGov's existence, which was the reason for the present Constitution, if the people are intending to ignore the FedGov whenever possible? FedGov didn't create private property, but was forced to acknowledge it, and in Kelo still wants to play around with the concept.
If a state legislature wanted to pass a law stating that automobiles could only be sold on the day of the week corresponding to their color (e.g. blue or yellow cars on Sunday, red or orange cars on Monday, green cars on Tuesday, etc.) it would be within its power to do that. The legislature would be under no obligation to explain the reason for the law (indeed, there may not be one).
In cases where the reason for a law is clear but it shouldn't be applicable in a particular case, a person should have the opportunity to argue that before a jury (state as well as federal) but the burden would be higher. Still, in some cases I think the case could be made convincingly.
For example, if someone who was charged with DUI wanted to argue that (1) their vehicle was parked, and (2) there was no evidence they made any attempt to move it while intoxicated, I think a sensible jury would likely find that even if the person technically had "control" of their vehicle, and even if the engine was running 'cos it was freezing outside, the person's conduct not only posed no risk to anyone, but should be considered commendable compared with the only practical alternative.
I wasn't.
to effect (v.): to influence, to accomplish, to produce
And how many of the criminal cases that are filed are a result of people who plea-bargained on earlier cases re-offending?
Plea bargains are an abomination of justice. They ease the punishments on the guilty, while making them more harsh for the innocent.
Can you identify ANY item or activity that Congress could not arbitrarily regulate or ban under your interpretation of the commerce clause?
The power to RCATSS was delegated to Congress. It was surrendered by the States to the general government, not shared.
"...and not as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged."
It makes no sense. You'd have to say, "... and not as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could not be lodged.
"and not" fits perfectly in Madison's letter. Remedial power, when used to negate or prevent an injustice among States, is not an exercise of power for the positive purposes of the general government. And Madison made such a distinction.
How can you lodge this power with the federal government and expect them to act in any way except for their positive purposes? Should they favor one state over another? Should they act for negative purposes?
The FCC regulation of broadcast frequencies and strengths is an example of negating or preventing obstructions to communication. Requiring broadcasters to provide equal time to opposing viewpoints is an example of a positive purpose, which Madison said was contrary to the original intent.
"Rather than" means that it was Madison's intent that the states themselves solve their commerce problems, rather than running to Congress every time they needed a resolution.
You're still pushing an interpretation of "rather than" as inclusive of what follows. I have provided you with biblical translations and authoritative English usage sources which say "rather than" means "and not" or "instead of".
Can you provide a source which backs your interpretation of "rather than"?
So each DWI case should be judged individually? That some people at .08 can drive responsibly? That maybe some 20-year-olds can own handguns?
You seem to be flip-flopping here.
I would consider the court as being guilty of "legislating from the bench" when it introduces new rules, not present in the Constitution, which are superior to anything the legislature might wish to do.
There are some cases which others might decry as "legislating from the bench" which I would not, wherein a court may find that some sort of rule should clearly be applicable in a situation that the legislature has not properly anticipated; the court may then impose a temporary rule with the intention that the legislature be free to change or replace it with something better at its convenience.
For example, if the Court were to find that the copyright law change which completely obviated notice and registration requirements was contrary to the stated purpose of Congress' power and therefore void, such action--if not accompanied by some other corrective action--would render many copyrights from the last 20 years void because the authors had not done what they had no reason to do. I would therefore consider it entirely reasonable for the Court to hold that Congress' actions were unconstitutional BUT for it to impose some temporary rules as a stopgap measure to allow authors to register their works as necessary to protect their copyrights. Congress would be free to come up with its own rules, but the Court's rules would serve as a stopgap measure until then.
Get this through your head. Nobody here is denying that SCOTUS has a very expansive reading of the commerce clause. Citing their opinions does not advance your position in this discussion, because all it amounts to is a circular argument. Most of what follows in your post is based on that flawed premise of yours. If you want to make a point, quote the Constitution and, if necessary, the founders, and go from there.
Do you disagree with the statement, "Congress can certainly regulate interstate commerce to the extent of forbidding and punishing the use of such commerce as an agency to promote immorality, dishonesty, or the spread of any evil or harm to the people of other States from the State of origin."
What I'm saying is that in order to prevent that from happening, they can not restrict the generation of said "immorality, dishonesty" or "evil or harm".
Yep. I'd be hard-pressed to quote anything from a hypocrite.
Not necessarily wrong, but certainly in conflict Madison. The question then becomes, who is more authoritative on original intent, Madison or Scalia?
The second question I have to ask is, which interpretation is consistent with a Federal government of few and defined powers?
If the original intent is for a clause to have a restrictive meaning, then it likely has a restrictive meaning. If its original intent is to have an expansive meaning, then it likely has an expansive meaning.
Generally speaking, the original intent of the Bill of Rights is to have a relatively expansive meaning (the 9th amendment helps make this clear), and the original intent of the powers granted to the federal government is to have a relatively restricted meaning (as Madison said, "few and defined") (also, see the 10th amendment).
Yes, absolutely. Congress has the power to regulate under the commerce clause any product if such regulation reasonably affects interstate commerce.
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