Posted on 03/30/2004 8:10:08 AM PST by Aquinasfan
Suppose you are sitting in your living room with a young man who is dating your daughter. The conversation turns to his intentions towards your daughter. You are seeking assurance that he respects her. Instead he assures you that at the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. You would probably be justified in concluding he recognizes no moral boundaries in his relationship with your daughter. You would probably toss him out on his ear.
If the young man were instead visiting your son, you probably would not make a similar inquiry about his intentions toward your son. The person, though, who thinks he can define his own concept of existence, meaning, the universe, and the mystery of life, need not recognize any moral boundaries outside of himself. For example, to him, abortion, rape, and sodomy are not inherently licit or illicit: their propriety varies according to the individual's personal definition. So, if your visitor starts babbling about defining his own concept of existence, you might be justified in concluding he hoped to sodomize your son. This visitor, too, would be tossed out on his ear.
These scenarios might seem farfetched. And perhaps they are, but not by much. To uphold both a woman's right to abort (Planned Parenthood v. Casey) and a man's right to sodomize his fellow man (Lawrence v. Texas), the United States Supreme Court has reasoned that those rights spring from that "heart of liberty" that includes "the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." Even some of the Justices on that Court mock that reasoning, most notably Justice Scalia who says the "famed sweet-mystery-of-life passage" may be "the passage that ate the rule of law." But if a majority of the Justices on the highest court in the land think liberty and the Constitution allow each individual to define reality and thus somehow protect the right to commit sodomy, why should your visitor think differently? Why should he recoil from buggery with your boy?
Think of the implication of the Supreme Court's statements: there is no reality outside the individual; he defines reality, which, of course, can vary from person to person. Nothing is objective; everything is subjective. Is it permissible to kill another person on a whim? Why not, if my concept is he does not exist apart from me? Does that sound ridiculous? It should. Consider abortion, though: American law denies the right to life of the child unless his mother validates his existence by carrying him to term; the child can be killed on the mother's whim.
In its decisions, the Supreme Court itself seems to be attempting to define its own concept of existence, of meaning, of the universe, and of the mystery of human life. And the only constraint on its attempt is the ability of each Justice to persuade other Justices to join in an opinion. The Constitution and precedent are relatively unimportant except insofar as they buttress the attempt or can be used to influence another Justice or the public. Constitutional law, or, in its abbreviated form, "con law," then, can be summarized easily: if and when five out of nine Justices agree, then that is what the law is, at least at that moment.
Thus the Supreme Court created a right to privacy that included the right to use contraceptives (Griswold v. Connecticut and Eisenstadt v. Baird) and that buttressed a right to abort the preborn child (Roe v. Wade). This was, to borrow Justice White's phrase in his dissent from the abortion decision, an exercise of "raw judicial power." The Justices had the power to do as they wanted, so they did. And then, when the Court revisited the abortion question years later (Planned Parenthood v. Casey), it acknowledged sanctimoniously that "a decision without principled justification would be no judicial act at all," but it expressed more interest in its own legitimacy than in whether its earlier decision was principled or, indeed, correct, concluding: "a decision to overrule Roe's essential holding under the circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court's legitimacy, and to the Nation's commitment to the rule of law. It is therefore imperative to adhere to the essence of Roe's original decision, ... . We conclude that the basic decision in Roe was based on a constitutional analysis which we cannot now repudiate."
In other words, what we have written, we have written.
The Court took a different course when approving homosexual sodomy. In 1986, the Court upheld state laws that made homosexual sodomy illegal (Bowers v. Hardwick). When it revisited the issue last summer in Lawrence v. Texas, it said Bowers "causes uncertainty" and "there has been no individual or societal reliance" on it to caution against overturning it. Then, invoking that same right of privacy, the Supreme Court blew away state sodomy laws. "The rationale of Bowers does not withstand careful analysis," it said. "Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled." So much for precedent, legitimacy, and the Nation's commitment to the law.
The abortion and sodomy cases are consistent, not in their approaches to precedent and legitimacy, but as examples of the Court's ability to act unfettered by any external constraint. Is it an overreaction to conclude that the only constraint is internal, the ability of one Justice to persuade other Justices to join in an opinion?
One might think the Constitution itself is a restraint on the Justices. The Court, though, disabused us of that notion last summer when it explicitly approved a "deviation from the norm of equal treatment" to allow discrimination based on race in college admissions for twenty-five years (Grutter v. Bollinger). The Constitution requires equal protection? So what, the Court knows better.
In Casey, the Court said its "legitimacy [is] a product of substance and perception" that "depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the Nation." The Court thus suggested that at least theoretically it could make a decision that was so outrageous that the "Nation" would reject it, which it concedes, could lead to "violence." And maybe this acts as a restraint on the Justices: they don't want to get out ahead of the American people too far, otherwise they might lose their power to do as they want. Thus, it is hard to envision the Justices discovering that liberty and the right to privacy protect a right to rape. But it is not impossible: would a right to rape be any more abhorrent than the right to kill a child? It is less difficult to envision the Supreme Court invalidating state laws against statutory rape, prostitution, incest, or bestiality.
Legitimacy, thus, is a somewhat illusory restraint. After all, the "principled character" of the decisions upholding the constitutional rights to abortion and sodomy is hardly self-evident or even plausible. Instead, the Court's decisions reek with condescension: we and our law clerks, the Court seems to say, are sufficiently bright that we can churn out opinions that can justify almost anything without causing rebellion or injuring our ability to do as we please; we are the elite, the knowing, the wise, the powerful, but, recognizing that the "Nation" includes others who are not as enlightened, intelligent, or powerful, we must guide and control them while simultaneously protecting ourselves against violence and a loss of power by writing opinions that engender a "perception" that our actions are "sufficiently principled."
There is no Constitutional right to abort a child or to sodomize your neighbor. The Supreme Court has created a perception otherwise, but it was unprincipled in doing so, and we would be justified in tossing it out on its ear.
James G. Bruen, Jr. is an attorney.
Animals are property, therefore consent is not required. Similarly, if I marry my car or my house, consent is not required.
"There is no Constitutional right to abort a child or to sodomize your neighbor."
The USSC has never said there were such absolute rights. Both abortion & sodomy can be & are regulated by our States, within the constitutional guidelines of our BOR's.
These "rights" follow logically from the following statement:
"the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life."
In other words, anything goes.
That is simply a perception, [more hype] about a stupid turn of phrase.
Bruen admits it when he writes:
The Supreme Court has created a perception otherwise, but it was unprincipled in doing so, and we would be justified in tossing it out on its ear. James G. Bruen, Jr. is an attorney.
Bruen is an unprincipled attorney, imo, seeing that he should know that our constitutional principles have not been violated by the court in either case he cites.
-- His hyperbole is irresponsible, and he is close to violating his own oath to protect & defend the US Constitution.
That's what I was getting at, specifically, where the line should be drawn.
It seems to me that this "stupid turn of phrase" is at the heart of the Roe v. Wade decision, and many SCOTUS decisions since then. The Court doesn't serve the natural law that is written on the human heart and, therefore, doesn't serve a document based on the natural law. It serves no master. It does what it can get away with, particularly regarding morals issues. I think Bruen is correct in this.
I thought that was the one where the two guys get stuck wrestling forever in a spinning tunnel. I hate when that happens.
"There is no Constitutional right to abort a child or to sodomize your neighbor."
The USSC has never said there were such absolute rights. Both abortion & sodomy can be & are regulated by our States, within the constitutional guidelines of our BOR's.
These "rights" follow logically from the following statement:
"the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life."
In other words, anything goes.
That is simply a perception, [more hype] about a stupid turn of phrase.
Bruen admits it when he writes:
The Supreme Court has created a perception otherwise, but it was unprincipled in doing so, and we would be justified in tossing it out on its ear. James G. Bruen, Jr. is an attorney.
Bruen is an unprincipled attorney, imo, seeing that he should know that our constitutional principles have not been violated by the court in either case he cites.
-- His hyperbole is irresponsible, and he is close to violating his own oath to protect & defend the US Constitution.
It seems to me that this "stupid turn of phrase" is at the heart of the Roe v. Wade decision, and many SCOTUS decisions since then.
I don't buy it. You, [and Bruen] are cynically using a stupidly written line to 'tar baby' the issue.
The Court doesn't serve the natural law that is written on the human heart and, therefore, doesn't serve a document based on the natural law.
The USSC is charged with serving our constitution, not your vision of "natural law".
It serves no master. It does what it can get away with, particularly regarding morals issues. I think Bruen is correct in this.
Yep, we all have opinions.. But our actions on 'moral' issues are limited by our Constitution.
Bruen wants to "toss out" that principle, "on its ear"..
Do you?
I'm not denying that the scope of the market is global. I'm denying that that fact gives Congress the power to regulate local transactions in that market. What you're essentially trying to argue is that Congress, by virtue of its grant of power to regulate interstate commerce, has the power to regulate things that affect interstate commerce. Not so. Never in any other field of governance has the power to regulate an activity been understood to mean the power to regulate things that affect said activity. That's purely an invention of modern courts.
Only those things which are in essence elements of the market itself. So if it's a hot dog market, part of the food market which has interstate scope, Congress has the power to regulate all of the elements that have an effect. There is no requirement, nor is there any justification to artificially dissembling the market into local and regional parts. If an individual wishes to make and eat their own hot dogs they can do so w/o following regs. However, they are not allowed to market them, w/o following the regs, because the regs apply to the elements of the market itself.
" Never in any other field of governance has the power to regulate an activity been understood to mean the power to regulate things that affect said activity. That's purely an invention of modern courts."
You are refering to extraneous effects. Effects which are not an integral part of the market. You are correct, there is no logical justification for claiming extraneous market forces are subject to regulation under the commerce clause.
Indeed it was. Unlike the clause on foreign commerce, the only real purpose of the interstate commerce clause was to take the power out of the hands of the states. As Madison explained:
Yet it is very certain that it [the interstate commerce clause] 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.
Doesn't matter how you limit it. The fact remains that you're still claiming that activities (not all activities, necessarily) which are not interstate commerce in themselves, yet have an effect on interstate commerce, can come under the control of Congress, despite the fact that the language of the Constitution doesn't authorize it.
There is no requirement, nor is there any justification to artificially dissembling the market into local and regional parts.
There's nothing artificial about it. All that needs to be determined is the nature of the transaction. If it's interstate in nature (that is, involves exporting an item from one state and importing it into another) then it falls under the regulation of Congress. Otherwise it doesn't. All other considerations, such as whether we're dealing with a market that's "interstate in scope", are truly artificial alterations to the language of the constitutional grant of power.
The limits are defined by the market itself.
"the nature of the transaction."
The nature of any particular transaction is irrelevant. The nature of the market is what determines applicability.
""interstate in scope", are truly artificial alterations to the language of the constitutional grant of power."
No. Refer to creation of the shoe monopoly and the various other private actions that provided motivations for the Constitutional Convention itself. Also review the quote from Madison you posted noting that the intent there was to remove State power to favor their own players over those of another State. That intent is contained in the purpose to provide market fairness and equity. That applies to the players, the people. The States were removed from the getgo.
So you say, but there's no support for that view in any of the writings of the Founders. It also doesn't square with the language of the Constitution.
Refer to creation of the shoe monopoly and the various other private actions that provided motivations for the Constitutional Convention itself.
I'd be interested in seeing whatever references you have for this. Certainly no mention of this was made in the Federalist. All motivations for the interstate commerce clause that I've read about (and I've read quite a bit) refer to the actions of state governments, not private parties.
Also review the quote from Madison you posted noting that the intent there was to remove State power to favor their own players over those of another State.
That's not what he said. He was talking about states impeding interstate commerce for their own benefits. He wasn't talking about states getting involved in any other way. But regardless, his point was clear that the motivation for the clause was not to give power (over individuals) to the federal government, but to take it from the states.
___________
"We know of no rule for construing the extent of such powers, other than is given by the language of the instrument which confers them, taken in connexion with the purposes for which they were conferred."
The words are, "Congress shall have power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes."
The subject to be regulated is commerce; and our constitution being, as was aptly said at the bar, one of enumeration, and not of definition, to ascertain the extent of the power, it becomes necessary to settle the meaning of the word. The counsel for the appellee would limit it to traffic, to buying and selling, or the interchange of commodities, and do not admit that it comprehends navigation. This would restrict a general term, applicable to many objects, to one of its significations. Commerce, undoubtedly, is traffic, but it is something more: it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse. The mind can scarcely conceive a system for regulating commerce between nations, which shall exclude all laws concerning navigation, which shall be silent on the admission of the vessels of the one nation into the ports of the other, and be confined to prescribing rules for the conduct of individuals, in the actual employment of buying and selling, or of barter."
_________
Hence, "The nature of any particular transaction is irrelevant. The nature of the market is what determines applicability."
"He was talking about states impeding interstate commerce for their own benefits."
Means the same as, " the intent there was to remove State power to favor their own players over those of another State."
Basically, interstate (and foreign) commerce is any commerce which, for a particular state, would be properly described as foreign commerce if that state were an independent country.
How is the state involved if I sell a hotdog at a carnival to someone? When the hotdog was sold from a meat plant out of state to the market where I bought it then there was interstate commerce. The sale at the carnival was not. And the state had no means to favor one other state over another in the second transaction.
Also, how is the 15 year old AR in my closet involved in interstate commerce once is was sold to the end user? Sorry, I view the use of the commerce clause as a thin excuse for a naked power grab by the fedgov. You seem to favor it, but it is a prime reason that the fedgov wields more power than they were ever intended to have.
With the inclusion of services and manufacturing, that comprises the market.
"Basically, interstate (and foreign) commerce is any commerce which, for a particular state, would be properly described as foreign commerce if that state were an independent country."
No, it is defined by the scope of the market.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.