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.
You're right, these labels can be very deceptive, particularly in an historical sense.
I would guess, for example, that most historians, if they were forced to label Chief Justice Marshall and Jefferson as liberal or conservative, would label Marshall (along with Washington and Hamilton) as conservative and Jefferson as being more liberal. And, as it turns out, Washington, Hamilton and Marshall were the ones who favored a strong central government and Jefferson seemed to prefer a much weaker one.
In fact, I think that the biggest boost that the Federal government got was when Washington sided with Hamilton as to the interpretation to be given to the "necessary and proper" clause. Jefferson was on the other side of that one, arguing for a more restrictive interpretation. Ultimately, Chief Justice Marshall more or less adopted Hamilton's argument in McCulloch v. Maryland and Congress was off to the races. ;-)
Of course I do. Most of the time, anyway. ;-)
Or are you too dense to be aware of doing so? Which is it?
Those are my choices? You're just too generous with me, tpaine! ;-)
I think you think we disagree with one another on whether the Constitution contains express authority to the Supreme Court to hold an act of Congress unconstitutional. I'm not suggesting that an argument for judicial review cannot be constructed. That is, after all, what Chief Justice Marshall did in the Marbury case and so it would be impossible for me to deny that it can be done.
On the other hand, I do not think that Chief Justice Marshall's argument in favor of his Court's power to declare acts of Congress unconstitutional was the only possible way of reading the Constitution. As I pointed out, Jefferson disagreed with Marshall on that.
And my point has only been that, whether he was right or wrong about Marbury, I think that the Court would be more comfortable about striking down Congressional legislation if the Constitution more clearly and expressly authorized the Court to do so.
Now, then, what specifically do you think that we actually disagree about here? ;-)
Ah yes, -- you disagree with Marshall, but agree that he made a good case. What else is new?
On the other hand, I do not think that Chief Justice Marshall's argument in favor of his Court's power to declare acts of Congress unconstitutional was the only possible way of reading the Constitution. As I pointed out, Jefferson disagreed with Marshall on that.
You 'pointed out' some out of context Jefferson quotes & comments on them that support your opinions.
And my point has only been that, whether he was right or wrong about Marbury, I think that the Court would be more comfortable about striking down Congressional legislation if the Constitution more clearly and expressly authorized the Court to do so.
You made that point & I answered. You did not rebut, you diverted.
Now, then, what specifically do you think that we actually disagree about here?
At 229, I wrote: 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.
First, the Court could very well decide all of its cases without inquiring into the constitutionality of an act of Congress. The fact that it is required to decide cases in accordance with the law does not necessarily mean that it is also required that the Court question the constitutional decision by Congress that it had the power to pass the law.
Second, even if it is assumed that the Supreme Court has the power to consider the constitutionality of a federal law in deciding a case before it, that does not necessarily require that the law be deemed of no effect in other cases or in other settings.
So, those were two of the other alternative ways in which Marshall could have interpreted the role of the Court in deciding cases. As we know, he didn't and there was more than a little controversy about his decision at the time.
At 229, I wrote:
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.
First, the Court could very well decide all of its cases without inquiring into the constitutionality of an act of Congress. The fact that it is required to decide cases in accordance with the law does not necessarily mean that it is also required that the Court question the constitutional decision by Congress that it had the power to pass the law.
If the law in question is repugnant to the constitution, the USSC is honor bound to obey their oaths, and strike down such infringements. You should know that..
Second, even if it is assumed that the Supreme Court has the power to consider the constitutionality of a federal law in deciding a case before it, that does not necessarily require that the law be deemed of no effect in other cases or in other settings.
You raise a point not at issue. Why? Is it diversionary?
So, those were two of the other alternative ways in which Marshall could have interpreted the role of the Court in deciding cases. As we know, he didn't and there was more than a little controversy about his decision at the time.
Sure. It was controversial to those who wanted states to have powers over individual rights.. So what? Didn't we resolve that issue yet?
Why is it you can't agree that the SCOTUS has the power and authority to judge "the facts & THE LAW" in all cases "arising under this constitution"?
I accept the result in Marbury, tpaine. But, the fact that I accept the decision does not prevent me from recognizing that it could have very reasonably been decided in other ways. The Supreme Court decided it the way it decided it and it has gained acceptance through time. So, I accept it as an important part of our Constitutional fabric.
This particular thread also concerns all those other Supreme Court decisions that have held that Congress has very broad (nearly unlimited) powers to legislate under the commerce clause. I can think of other ways the Court could have decided those cases, too, but those decisions have also gained general acceptance over time. In the same sense that I must accept Marbury, I guess I also need to just accept those other Supreme Court decisions as well. ;-)
Well, I provided two other ways that the Supreme Court could have approached Marbury in post 247. In another post, I linked you to a page full of Jefferson's views on the matter.
How could our individual rights be protected against legislative infringments if we had no USSC legal appeal?
The President's veto power. Elections. ;-)
Well, I provided two other ways that the Supreme Court could have approached Marbury in post 247.
Both if which I rebuted at 248, and you dropped.
In another post, I linked you to a page full of Jefferson's views on the matter.
Out of context 'views' are not definitive.
How could our individual rights be protected against legislative infringments if we had no USSC legal appeal?
The President's veto power. Elections.
Both of which currently 'work', to a very poor degree.
Sorry kid, I'll still stick with advocating that we obey our constitution as written. We continue to need nine old farts to occasionally strike down the more outrageous infringements on our personal liberties.
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