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 rather have dope sold on every street corner, and abortion mills in every mall, than submit to the tyranny and mayhem of your paternalism.
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Congress hadn't put enough "special sauce" in the statute when they passed it the first time. Since the Lopez case, congress re-passed the GFSZA with a little more "special sauce" added, so the SCOTUS' position on the manner isn't solidly finalized.
But assuming the second amendment does not kick in, Congress certainly has the power to ban the posession of certain weapons, such as machine guns.
It there any type of artifact it could not ban under your interpretation?
I might add, that even if this robust interpretation of the commerce clause is errant, it is so embeded in SCOTUS precedents, and meets every criteria there is for such precedent to be binding (expectations, reliance, not shocking to the conscience, workable, reflects the economics realities of a national economy, and national interests), unlike Roe, that the original intent argument no longer is dispositive.
It is true that when certain wrongly-decided precedents become ingrained, it is difficult to overturn them 'in one fell swoop' without causing some singnificant disruption. Nonetheless, the notion of 'superprecedent' is a fundamentally wrongheaded one, and overlooks the fact that stare decisis is supposed to be a means to help promot justice, and not an end unto itself.
Soup and sandwich.
Thank you! At least one Conservative agrees with me on this issue. :)
"For a hundred years it has been accepted constitutional doctrine that the commerce clause, without the aid of Congressional legislation, thus affords some protection from state legislation inimical to the national commerce, and that in such cases, where Congress has not acted, this Court, and not the state legislature, is under the commerce clause the final arbiter of the competing demands of state and national interests."
-- SOUTHERN PAC. CO. v. STATE OF ARIZ. EX REL. SULLIVAN, 325 U.S. 761 (1945)
As I said, the states take their dispute to the court where it is then settled without involving Congress. Call it what you like.
Sorry, I am behind on the discussion. What is the goal? And how would you move to achive it?
Call Wickard whatever you want, but there is not now and will not by any plausible chain of events ever be a Supreme Court majority to overturn Wickard and readopt the commerce clause interpretation of Schecter.
Perhaps. So is the Constitution a lost cause?
You did misinterpret the exchange. I was simple repeating your remarks in rhetorical fashion. Here's my full post to you.
So Scalia's position is contrary to the opinions of other American jurists. Okay. It doesn't make Scalia's interpretation wrong, in my opinion.
Around and around and around.... we ain't gonna agree on this one. Not now, not ever. Congress expanded the commerce clause to extend the prohibition of illicit drugs under one unified law called the CSA of 1970. SCOTUS agreed that it was valid and legal for Congress to engage in such action. I agree. It was constitutional.
inquest in particular deserves the "It's in the constitution" quote from me from now on for his comment about "citing SCOTUS opinions and confusing him with circular arguments" or somesuch nonsense.
He'll get it nice and simple from me so his wittle head don't get hurt by the facts. I'll just argue from an emotional standpoint. He'll like that.
Care to address the issue, or are you only capable of making personal attacks?
"Constitutional" is both a matter of decree and of principle. Do you really think the question posed in the opinion poll, and the discussion of it on this thread is purely a matter of decree?
I don't consider these actions to be an "expansion" of the Commerce Clause. I don't consider these actions to be "proper" or "improper".
How's that? Better?
That's your point about the drug laws, isn't it? That right now the drug laws assume possession affects interstate commerce just as the DWI laws assume I'm drunk at .08.
Hard to argue for changing one set of laws without changing others.
With your several dozen posts as your own admission on this thread you're stuck on dumb.
You don't want to see the analogy to our DWI laws (and many others), by my guest.
You want to isolate our drug laws into a special little category all their own where individuals are allowed to go to court to argue that THEY don't contribute to interstate commerce, fine, knock yourself out with your Libertarian wet dream.
I already said, I thought the question was wrongly wording.
>>> ... and the discussion of it on this thread is purely a matter of decree?
Not at all. Just so happens, your post is #450. My first post was #17. Aside from dealing with one tortured FReeper, if I didn't respect the opinion of others I wouldn't have stayed around for this long. I know some folks believe FR threads are immortal and never end. I don't hold that opinion. LOL
correction: ".... was wrongly worded."
As I said, the states take their dispute to the court where it is then settled without involving Congress.
Your case cite is consistent with Marshall's opinion in Gibbons. States do not have the power to regulate commerce among the several States. If a State exercises such power, then under article III the Court may strike it down. See Sandy's explanation:
Sandy: That when Congress has not acted upon an area under its authority, then the implication was that Congress didn't want that area acted upon at all. And to this argument, what did Marshall reply? "There is great force in this argument, and the Court is not satisfied that it has been refuted."
http://www.freerepublic.com/focus/f-news/1414947/posts?page=256#256
None of which has to do with the meaning of "rather than". You still have provided no counter source to my citations.
As a general principle, I would argue that one of the purposes of trial by jury is to allow the jury to decide whether prosecution would be just and would be in society's interest. In order for a jury to be able to perform these functions effectively, it must have information which the system does not always at present allow it to receive.
When juries' powers were recognized, there was much less need for intricately-detailed laws. Rather than trying to list all the circumstances necessary for certain defenses, legislators could leave such matters up to juries to decide. Although this sometimes worked to the detriment of society (e.g. when jurors exhibited racial prejudices) it often worked for its betterment. Further, jurors who were allowed to use common sense were much able to deal with cases the legislature hadn't considered than are jurors whose common sense is drilled out of them.
The question falsely equated drugs and firearms, as well as implicitly assuming expansion. It was loaded twice.
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