Jones & Laughlin Steel, Darby, and Wickard ushered in an era of Commerce Clause jurisprudence that greatly expanded the previously defined authority of Congress under that Clause. In part, this was a recognition of the great changes that had occurred in the way business was carried on in this country. Enterprises that had once been local or at most regional in nature had become national in scope. But the doctrinal change also reflected a view that earlier Commerce Clause cases artificially had constrained the authority of Congress to regulate interstate commerce.
It is patently obvious that Rehnquist is wrong, utterly wrong in his analysis and conflicted in his conclusions.
If "Jones & Laughlin Steel, Darby, and Wickard ushered in an era of Commerce Clause jurisprudence that greatly expanded the previously defined authority of Congress under that Clause" is true then what follows?:
1. The Court expanded the defined authority of Congress.
2. What was the previously defined authority of Congress as regards the Commerce Clause? The Constitution itself which prior jurisprudence simply and strictly followed.
3. That document itself contains the only method of expanding the defined authority of Congress or any branch of the United States Government - Constitutional Amendment.
4. The SCOTUS has no authority to expand the Constitution per that selfsame American Contract.
Taking the second part of Rehnquists statement we find that "earlier Commerce Clause cases artificially had constrained the authority of Congress to regulate interstate commerce". What was the means of this 'artificial' constraint? By what source was Congress constrained?
The legal definition of 'artificial' is
1 a : made by humans —compare NATURAL b : caused or produced by a human and esp. social or political agency artificial price advantage>
2 : arising through operation of law —ar·ti·fi·cial·ly adverb
Definition 1. is a truism for all human laws, but if our Constitution is God-made clearly false and if our Constitution is based on Natural Law clearly false again. Definition 2. makes a joke of Rehnquist's statement. So Rehnquist doesn't mean artificial in the legal sense, but in the colloquial sense of 'not genuine; pretended; or assumed'.
If that is the case, then Rehnquist's statement is a direct attack against the Constitution itself. It cannot be anything else as prior jurisprudence held to the limited government interpretation of the Constitution itself. Rehnquist's statement is a bold admission that the expansion of the Commerce Clause by the SCOTUS is a repudiation of the Constitution of the United States of America.
Rehnquist assumes that a proper interpretation of Congressional authority, had it been correctly defined in the past, would have allowed for an expansive control by the legislative branch over a broad swath of economic activity "among the several States". Although he does not say so in the text you've quoted, he appears to rely not only on the specific, enumerated powers granted under Article I, Section 8, Clause 3, but also upon the "Necessary and Proper Clause" that follows later in Article 1 Section 8.
As a strict constructionist, I (and many others) reject both the preliminary reading of the Commerce Clause as a broad grant of power and the elastic use of the later clause to permit anything other than the execution of power already granted by the Constitution.
In any event, I do not believe that Rehnquist intended to imply a Judicial power to expand the authority of the legislative branch by fiat, but because he believed that Congress always possessed the authority finally "recognized" in Jones, Darby and Wickard, et al.
I believe he was profoundly mistaken, and as such, Alexander Hamilton's faith that the Necessary and Proper Clause would be constrained by the clear language of the Constitution in its grant of enumerated powers (see Federalist #44) appears to me to have been tragically misplaced.
Instead, the innocuous commerce clause has been turned on its head and abused as a tool to aggrandize federal power at the expense of the States, in direct violation of the Constitution. If this simple clause can be so construed as to deny powers that legitimately reside with the States, well, there is no philosphical limit to federal powers.
In the Obamacare lawsuit, two out of three appellate judges last week voted to enslave a once free people.
T’anks. And I think you are correct in your assessment.But I was never trained in the metaphysical refinements and tests of logical skill so many others enjoy. Someone once said the Law is like an onion in its many layers. And the Court is like a monkey that will open up that onion as as it is allowed —
or until another distraction causes it to discard the onion for other pursuits. When I read your post— Justice Rhenquist -and educated and a fine man from what I have read reminded me of that illustration IF the constitution is seen as an artificial restraint then does not say that which we believed true is nothing but an apparation/haint.
Indeed, they simply "amended" the Constitution without the bother of amending it.
That power was expanded yet farther in the use of treaties held at the UN to internationalize regulation, abetting corporate scale yet farther. Yet there is no doubt that the agenda to internationalize our laws was in place before the ink was dry on the Constitution itself, as discussed here.
The result has been a corrupt corporate racket in regulation as discussed here and here. The fix is to understand that regulatory functions are actually a form of risk management. Effectively, nearly every function of regulatory government can be replaced by correctly designed markets with particular focus upon automating transaction costs, contract negotiations, and reining in tort, as discussed here.
Yeah, I know, I'm flogging my own work. :-) I just wanted to point out that both the problem and the fixes have been there all along and that the agency has been claque of Masonic bankers' hatchet-men in black robes. Marxists, corporate fascists, they're all the same. Some are more equal than others.