Posted on 11/04/2003 10:08:00 PM PST by JohnHuang2
Several weeks ago, under the title "Is It Permissible?" I discussed how Congress systematically abuses the Constitution's "welfare clause" to control our lives in ways that would have been an abomination to the Framers. Quite a few readers pointed to my omission of Congress' companion tool to circumvent both the letter and spirit of the Constitution, namely the "Commerce Clause."
The Constitution's Article I, Section 8, paragraph 3 gives Congress authority "To regulate Commerce with Foreign Nations, and among the several States, and with the Indian Tribes." During the war, the 13 colonies formed a union under the Articles of Confederation (1778) whereby "Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled." The Treaty of Paris (1783) that ended the war between the colonies and Great Britain recognized 13 sovereign nations.
A key failing of the Articles of Confederation was the propensity of states to erect protectionist trade barriers. When the Framers met in Philadelphia in 1787 and wrote the constitution that governs us today, they addressed that failure through the commerce and the privileges and immunities clauses that created a national free-trade zone.
Thus, the original purpose of the Commerce Clause was primarily a means to eliminate trade barriers among the states. They didn't intend for the Commerce Clause to govern so much of our lives.
Indeed, as James Madison, the father of our Constitution, explained, "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite."
For most of our history, the Courts foiled congressional attempts to use the "Commerce Clause" to sabotage the clear meaning of the Constitution, particularly the Ninth and 10th Amendments. The courts began caving in to congressional tyranny during the 1930s. That tyranny was sealed in 1942, by a little known U.S. Supreme ruling in Wickard vs. Filburn.
Filburn was a small farmer in Ohio. The Department of Agriculture had set production quotas. Filburn harvested nearly 12 acres of wheat above his government allotment. He argued that the excess wheat was unrelated to commerce since he grew it for his own use. He was fined anyway. The court reasoned that had he not grown the extra wheat he would have had to purchase wheat -- therefore, he was indirectly affecting interstate commerce.
If there's any good news, it's the tiny step the U.S. Supreme Court took in its in U.S. Vs. Lopez (1995) ruling. In 1990, Congress passed the Gun-Free School Zones Act, citing its powers under the "Commerce Clause." Namely, the possession of a firearm in a local school zone substantially affected interstate commerce.
Why? Violent crime raises insurance costs, and those costs are spread throughout the population. Violent crime reduces the willingness of individuals to travel to high-crime areas within the country. Finally, crime threatens the learning environment, thereby reducing national productivity.
While all of this might be true, the relevant question is whether Congress had constitutional authority to pass the Gun-Free School Zones Act. The U.S. Supreme Court ruled it didn't, saying, "If we were to accept the government's arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate."
In other words, the hours children spend studying, the amount of rest they get and what they eat have something to do with learning. Congress could easily manufacture a case for the regulation of these activities based on its perverted interpretation of the "Commerce Clause."
While the Lopez ruling is a tiny step in the right direction, there's much more to be done. Constitution-respecting Americans should demand the impeachment of congressmen and other elected officials who ignore their oaths of office to uphold and defend the Constitution.
Then how is it that the USSC can overrule Congress by finding laws to be unconstitutional?
Please keep that limitation in mind when you are encouraging the Supreme Court to more closely scrutinize the constitutional decisions that are made by the Congress.
I'll keep it in mind once you've convinced me it actually exists.
Marbury v. Madison was seen by many as a judicial power grab at the time and while the Court's new power has gained general acceptance over time, the Court has usually tried to be judicious in exercising it in part because it doesn't have very solid roots. Why should the Court assume that it is somehow inherently more capable than the Congress at interpreting the power of Congress to regulate commerce among the several states?
Why do we have appeals?
Institutional Weakness No. Two: The Supreme Court is not elected by the people and is not supposed to be a political branch of government. The members have no political constituency to serve as a basis for support. The Court is, in the last analysis, completely answerable to the political branches (budget, jurisdiction, impeachment power, court-packing). This institutional weakness provides a check on just how ambititious the Court can be in telling the political branches to pound sand.
If they have no political constituency to serve, then their only concern should be for the constitutionality of the issues they address. Hopefully this provides a degree of objectivity lacking in a partisan theater. Objectivity is considered a virtue by conservatives, not a weakness.
Institutional Weakness No. Three: Ordinarily, when the Congress passes legislation, it does so after extensive hearings at which witnesses are heard and materials submitted. Proceedings like that result in legislative findings that because of their breadth are often very unlike the kinds of questions of fact that courts are used to deciding. The Supreme Court is not accustomed to holding lengthy hearings with witnesses testifying as to the impact that a piece of legislation might have on interstate commerce and they do not usually see it as a judicial function to determine which of two alternative paths are best for the country. Nor is the Supreme Court openly familiar with the legislative tactic of compromising on one part of a legislative act for benefits in another part. Courts are just inherently poorly equipped for these kind of functions.
Congress much debates many issues, and what particular form of legislation they should pass to do something about them without anyone ever asking wheather it is within the scope of responsibility and authority of the federal government in the first place. If the SC doesn't ask, who will?
The Supreme Court made up the doctrine (it's not in the Constitution) and I suppose that they can, if they wish, dispense with it. It won't solve their institutional weaknesses, though.
Do you think they should dispense with it? Do you believe that the Constitution is a "enduring document" or is it whatever Congress wants it to be?
What "specific rights and limitations found elsewhere" were the basis for overturning the VAWA?
I think that the Lopez and Morrison cases are fascinating. I don't expect much to come of any of that, though.
Well I think that's a fascinating response. I don't expect much to come of it, though.
Here's a thought to consider: How many of our conservative justices do you think will claim that it's beyond the power of Congress to limit medical malpractice awards in state courts? ;-)
Not enough. But then "conservative" seems to be a rather subjective term, so hard numbers are going to be rather difficult to pin down.
The 14th amendment. Aren't you a lawyer?
Yes I am. The 14th Amendment applies to state action in that it prohibits a state and its political subdivisions from discriminating based upon race, national origin, religion etc. and that's the basis for 42 USCS 1981 et seq.
Amendments to the constitution also apply to actions taken by the federal government. -- As you well know.
I'm talking about that part of the Civil Rights Act that prohibits me from dicriminating in the operation of my private business, the sale/rental of private housing, the service of food in a private restaurant, and the letting of rooms in a private inn or other place of accommodation.
Of course you are.. But do you agree that [depending on specifics] private actions can violate the rights of individuals?
Well, because in Marbury, the Supreme Court said that it could, that's why. LOL. My only point is that the absence of any express provision in the Constitution has served to encourage the Court to demonstrate greater deference to the constitutional opinions of the other branches than would be the case if there were such an express provision.
If the SC doesn't ask, who will?
I know you're not going to like this, but in my opinion, the will of the people will continue to determine how large our federal government will be and what functions it will perform. The only point that I have been trying to emphasize on this thread is that there are good reasons for which the Supreme Court has been unable to decide how large the federal should be in this country. The Court has done a decent job in enforcing specific limitations where they exist, but it's simply not the constitutional function of or a manageable task for the Court to design the size and scope of the federal government. The text of the commerce clause is susceptible to a wide variety of interpretations and there isn't anyone who can sensibly say that his/her interpretation should prevail over what appears to be the will of the people.
Do you think they should dispense with it? Do you believe that the Constitution is a "enduring document" or is it whatever Congress wants it to be?
No, I don't think we should "dispense" with the Constitution. It provides the framework for our government. And, no, I don't think that it is "whatever Congress wants it to be." I think that all of our elected and nonelected officials are obligated to take their Constitutional responsibilities seriously. As you have shown, there are varying interpretations of some Constitutional provisions. And I think that the members of each of the three branches should continue to view alternative interpretations of other branches with some deference. Your suggestion that the Constitution should be whatever the Supreme Court wants it to be is not very appealing to me, either. At least with the Congress, we can quit voting for the members.
Well I think that's a fascinating response. I don't expect much to come of it, though.
Well, there's a big difference between deciding a case like that which is on the periphery of Congressional power and actually reversing prior decisions. I just don't think that much in the way of fundamental change is going to come from these decisions around the edges.
Pretty specific words to my 'non-lawyerly' way of thinking.
Well, tpaine, Chief Justice Marshall could have used you back in 1803 when Marbury v. Madison was decided. As you can see, he wasn't able to explain it quite as succinctly as you have. ;-)
I'm not going to argue that Marbury was incorrectly decided, althought President Jefferson was very unhappy about it. My point is only that the Supreme Court might feel a bit more confident about smacking the Congress around from time to time if it had a clear and specific Constitutional mandate to do so. ;-)
I have no problem with the size and scope of the federal government being determined by the will of the people. I do have a problem with substituting creative semantics for the process of public debate, vote and ratification of amendment. As Justice Thomas has correctly observed, out current "interpretation" is very much out of step with first 150 years of commerce clause decisions, and I think it's quite relevant to point out that chronologically, the closer you get to the time the document was written, the more likely you are to have it's "original intent" correctly interpreted.
I can say that the fact that the federal government played a much smaller role in our economy can also be explained with reference to factors having nothing to do with nuances of interpretation. You know, I can't many objects around me anymore that don't have something to do with China! LOL. The world and our country has become smaller and more interdependent.
Congress has had its temporary setbacks from time to time, but as I look back on our history, it just seems to me that the federal government has pretty much grown as fast as Congress has wanted it to grow. And, presumably, Congress's decisions in that regard have been in conformity with the will of the people. I really think that it comes down to enough people wanting to see change before that kind of major change can take place in this country.
There may be a day when Congress is passing real estate laws for the moon. And, I suppose, people will say that that is clearly beyond the power of the federal government because, even back in 2003, the Congress wasn't passing laws concerning other heavenly bodies. ;-)
And that doesn't even address the more fundamental question of where the Supreme Court is going to find in the Constitution its delegation of power and authority to substitute its judgement for the judgement of an elected Congress on these issues. It just isn't there.
How can you ignore the clear words of Art III, Sec 2 ? It outlines where the Supreme Court is to find the Constitutional delegation of power and authority to judge "the facts & THE LAW" in all cases "arising under this constitution".
Pretty specific words to my 'non-lawyerly' way of thinking.
Well, tpaine, Chief Justice Marshall could have used you back in 1803 when Marbury v. Madison was decided. As you can see, he wasn't able to explain it quite as succinctly as you have.
He explained it better, in his closing paragraph:
---
-- "Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument."
Justice Mashall
I'm not going to argue that Marbury was incorrectly decided, althought President Jefferson was very unhappy about it.
Why do you ~want~ it to be incorrect? Strange position.
My point is only that the Supreme Court might feel a bit more confident about smacking the Congress around from time to time if it had a clear and specific Constitutional mandate to do so.
It does.. You need to re-read Marshall without your lawyerly blinders on.
Well, the "will of the people" is not the only factor, but it certainly is an immensely important factor, particularly over a long period of time. It's very difficult for one institution like the Supreme Court to simply disregard public opinion indefinitely. The Court is at its strongest when it has very clear clear and very specific language to rely upon.
And, you're right of course, the "will of the people" does not always assure the best outcomes. Somehow, we muddle through. ;-)
Last time I checked, we weren't here to "muddle through", we were here to get the size and scope of the federal government under control.
Agreed, but you don't seem to think that the process of amendment, by which the people give them that specific language is particularly necessary.
That would be an option, of course. Obviously, the process would allow us to find out a lot more about how the public feels about the scope of federal power. Keep in mind, though, that a lot of the legislation that we might feel is beyond the proper boundaries of federal power is legislation that is being pushed through Congress by conservatives. The medical malpractice limits is just one example. It's becoming increasingly obvious to me that both of the major parties in this country are competing in order to exercise and not to limit federal power.
So, would such an amendment be adopted? I don't know. ;-)
Maybe. But the way the system was designed, the federal government was supposed to grow when enough people wanted it to, and had their state legislatures provide documented proof. To the degree that we are willing to forego that involvement of the people, we lose the benefits that that involvement would bring us. We become not a government of the people, but a government of the pundits.
Social conservatives, yes - some of them are political opportunists. Political conservatives, no.
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