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.
He does in his second letter to Cabell, which has been posted several times on this thread, and which I specifically included in my question:
For a like reason, I made no reference to the "power to regulate commerce among the several States"
He then mentioned that he foresaw "difficulties" arising from the fact that the powers to regulate interstate and foreign commerce were "in the same term". If the terms were taken literally, the same extent of power could be exercised over both foreign and interstate commerce.
It is this argument which Madison called "specious though unsound". He then stated his understanding of what the power to regulate commerce among the States entailed, and what it did not entail.
I hope that satisfies your curiosity.
No, because you won't answer my question. Let me try this, from Justice Clarence Thomas in Lopez:
Put simply, much if not all of Art. I, 8 (including portions of the Commerce Clause itself) would be surplusage if Congress had been given authority over matters that substantially affect interstate commerce. An interpretation of cl. 3 that makes the rest of 8 superfluous simply cannot be correct. Yet this Court's Commerce Clause jurisprudence has endorsed just such an interpretation: the power we have accorded Congress has swallowed Art. I, 8. 3
Indeed, if a "substantial effects" test can be appended to the Commerce Clause, why not to every other power of the Federal Government? There is no reason for singling out the Commerce Clause for special treatment. Accordingly, Congress could regulate all matters that "substantially affect" the Army and Navy, bankruptcies, tax collection, expenditures, and so on. In that case, the clauses of 8 all mutually overlap, something we can assume the Founding Fathers never intended.
Our construction of the scope of congressional authority has the additional problem of coming close to turning the Tenth Amendment on its head. Our case law could be read to reserve to the United States all powers not expressly prohibited by the Constitution. Taken together, these fundamental textual problems should, at the very least, convince us that the "substantial effects" test should be reexamined.
--http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=514&invol=549
Who do you think is more in line with Madison on the power to RCATSS, Scalia or Thomas? My answer: Thomas. What say you?
The passage says nothing about keeping or giving up silver: Receive my instruction, rather than silver; Do you agree that the verb "receive" applies to both "instruction" and "silver"?
In order for your view to work, there must come a point where you can't receive any more instruction, at which time you could then start receiving silver.
Translation from tpaine into English - drug laws.
Madison was telling Cabell to choose? I don't think so.
Madison was using the phrase to describe the difference between the foreign commerce clause and the interstate commerce clause. Madison never said that it was not acceptable for Congress to regulate interstate commerce (he even stated the power could be lodged there), just that he thought it would rarely be used.
The courts have ruled for some time now that "to regulate" includes "to prohibit".
Then maybe HE should have written the commerce clause differently.
Strange that he would write it one way, it gets ratified, then 50 years later he writes a private letter to an obscure friend saying, "Gee, I hope you don't think that to regulate foreign commerce means the same thing as to regulate interstate commerce".
Oh no, Mr. Madison, why would I?
Well, the USSC certainly thought they were the same, despite Madison's private letter to Cabell:
''[t]he power to regulate commerce among the several States is granted to Congress in terms as absolute as is the power to regulate commerce with foreign nations.''
-- BROWN v. HOUSTON, 114 U.S. 622 (1885)
Hey, KenH, why adults only? Can't those under 21 benefit from this wondrous drug?
Why is marijuana the only "adults only" medicine?
Let's re-phrase the Marijuana Policy Project's biased survey question: "Do you think adults and children should be allowed to legally use marijuana for medical purposes if their doctor recommends it?"
When you get the time, I would recommend as a reference the Oxford English Dictionary, the unabridged 20-something volume, which can be found at most public libraries. It's a good reference because the different definitions generally go in order from oldest to most recent, which enables you to trace how the meaning evolves. It also gives dated quotes from various sources to show how the word was used in sentences at different times.
And in the meantime, I suggest looking at the Constition online, here, for example, and doing a find-on-page search for the word "several", which appears "several" times throughout the document. And each time you see it, pretend the word isn't there, and ask yourself how that would possibly affect the meaning of the sentence you're looking at. Remember that the drafters of the document generally didn't waste words unnecessarily.
This private letter is describing the state of the general understanding of the commerce clause at the time it was written. It's certainly a hell of a lot more than you've provided to indicate that. The fact is, there's nothing in the writings of any of the founders at the time the Constitution was drawn up, either on the federalist or anti-federalist side, that shows a different understanding.
In fact, the context of both that letter and the previous one he wrote shows that he wasn't even telling Cabell something he didn't already know. It came across more as a reinforcement of what everyone at the time pretty much understood.
If you want to try another avenue or topic of debate, I'll be glad to consider a rebuttal to your post. Otherwise, time to move on.
Sure there is. It's in the constitution.
It means it is a choice. Just not the acceptable one.
When Madison says "negative and preventive" rather than "positive purposes", does it mean "positive purposes" is also an acceptable choice?
Strange that he would write it one way, it gets ratified, then 50 years later he writes a private letter to an obscure friend saying, "Gee, I hope you don't think that to regulate foreign commerce means the same thing as to regulate interstate commerce".
Oh no, Mr. Madison, why would I?
BWAHAHAHA! I see you're now adopting a dismissive attitude toward one of the Founding Fathers. A tacit admission that your view and Madison's are not in acccord?
No, it means that "positive purposes" is a choice, just not the best choice to describe the reasons behind the interstate commerce clause.
This does not mean that the interstate commerce clause cannot be used for the positive purposes -- it can and it is. It just means that "for positive purposes" does not best describe the original reason why the interstate commerce clause came about.
Thanks, I saw that! Didn't Mason-Dixon have the most accurate poll in the 2004 presidential election?
In any event, 65% is a big, big number, although not quite as big as the 85% who answered "No" to the current FR poll question. What a shellacking.
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