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 don't recall the "direct" limiting adjective in the Constitution myself. But assuming arguendo, that SCOTUS has taken too robust a view of the commerce clause, I refer you to my comments about precedent, and the factors to consider as to when to hew to it, even if errant, and when not.
Of course they're not going to have the same meaning. But applying two different principles of interpretation certainly is inconsistent.
And in this case, one is designed to give power to Congress to preempt state laws, and the other is not.
If anything, that works even further against your position. It was indeed designed to negate state laws that obstructed interstate commerce, not to give the federal government power over individual citizens, and certainly not to give it power over citizens who aren't actually engaging in cross-border trade.
Your attempt to find similarity where none exists, except in some tortured sense to make a tendentious Sophistic argument, might serve to confuse a jury, but that is about the extent of its effectiveness.
Confuse? I said that your inconsistency was that:
"Legislative power over A is viewed [by you] to mean power over things that affect A, but legislative power over B is not viewed to mean power over things that affect B."
If you really find that confusing, I'm sorry, I wish I could help you.
SCOTUS has so held, repeatedly, and for 60 years, and thus such regulation is within the ambit of Congress's commerce clause power, and those precedents will not be reversed under the test used to evaluate whether or not to overturn precedent.
Jurors, be the town juries, county, state federal or Supreme Court jurors hand down opinions. They do not make law. Congress makes laws. "Law makers" is a term often used by the MSM in reference to members of congress. That the separate powers of government have been bastardized is an abomination that has upended justice. This will one day, in the not so distant future, become common knowledge.
Who said anything about limiting? The power has to be granted in the first place, otherwise it isn't there. See the 10th amendment.
No. An amendment was desired, not required.
"it strongly implies that they have no such authority over drugs, firearms, polar fleece ..."
The Harrison Narcotics Tax Act was passed in 1914.
You get the last word, you lucky dog, you.
That didn't come from the commerce clause. Look two clauses above on your pocket Constitution.
Gibbons v. Ogden says that Congress has the authority. But, in your hypothetical, of course an amendment would be required.
They can't do this today?
You're drifting away from your own point. Aren't you arguing for a change in the laws themselves? That the federal drug laws, for example, would be limited to "possession while crossing state lines", or "growing with intent to sell across state lines, or "selling across state lines", and that's the standard that has to be met?
Well, let me see. Congress has the power to regulate commerce among the several states.
Nope, I see no restrictions there, other than the fact that Congress is responsible to the voters who put them there and may just as easily remove them.
Then it remains the case that your statement that "Roe v Wade is viewed as a bad decision by most conservatives and even some high profile liberals" is undercut by your retorting to my criticism of Touby v USA with "Then you take a legal run at it and we'll see how far you get."
As for further discussion, it would be an effort in futility and a waste of my time to argue with someone who holds a completely opposite position then I do.
Your latest evasion is no less transparent than your previous one. The following arguments stand unrebutted:
"you mischaracterize that decision as upholding the CSA, when all it really did was uphold the challenged section."
"Many people view the CSA as an unconstitutional law and for good reason: the Constitution gives the federal government no more than very narrow authority over intrastate transactions (as all pre-FDR courts that ruled on the issue recognized)."
Nor "substantial effect." Do you recognize ANY limitation, and if so, on which words from the Constitution is it based?
Whose criteria are those? I see no such language in the Constitution.
He could have sold less on the open market and kept that amount for his own use with no penalty. He could have produced more and stored it. He could have paid the penalty. He chose d.) none of the above.He (and a million other farmers) would have affected interstate commerce because by producing more for themselves they would have purchased less on the open market. Surely that's obvious.
From WICKARD v. FILBURN, 317 U.S. 111 (1942):
Appellee says that this is a regulation of production and consumption of wheat. Such activities are, he urges, beyond the reach of Congressional power under the Commerce Clause, since they are local in character, and their effects upon interstate commerce are at most 'indirect.' In answer the Government argues that the statute regulates neither production nor consumption, but only marketing; and, in the alternative, that if the Act does go beyond the regulation of marketing it is sustainable as a 'necessary and proper' implementation of the power of Congress over interstate commerce.
What else can be deemed “necessary and proper”?
Your query is vague and ambiguous. I outlined the limitation I "saw" in the commerce clause above.
It was not surrendered. You cannot find that among the other Article I, Section 10 surrendered powers.
"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."
True, but only when the states themselves resolve the injustice in a court.
But if the federal government steps in to say, remove a tariff, they do so for the benefit (positive purposes) of the United States, not for the benefit of State A or State B.
"You're still pushing an interpretation of "rather than" as inclusive of what follows."
"A" rather than "B" means "A" is the expected course. It does not preclude "B". You're saying that "B" is not allowed. That's wrong.
SCOTUS's, and well accepted by most, including just about all lawyers. Just because a decison is wrong, does not mean ipso facto it should be reversed. I know, you might not like it, and Justice Thomas may not like it, but most like it, and it is the way it is, for good and sufficient and prudential reasons, as made apparent by the parsing of the factors themselves.
Sure they can. That was made very clear in the ruling ... oops. Can't say that.
Yes they can. It's in the U.S. Constitution.
Better?
Where? I don't see it.
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