Posted on 05/10/2004 10:50:25 AM PDT by DaveCooper
That's what's known as the "aggregation principle". Part and parcel of the New Deal Commerce Clause. There in nothing in the Constitution, or early commerce clause cases to support such an application.
The dissenting judge is still wrong, FDR is still wrong, and you're still wrong right along with them.
And if you do, then why did they give Congress this power in the first place?
I thought the bottom line was "What will help insure that Robertpaulsen's kids never smoke pot?"
Do you really believe that the founding fathers intended Congress to have to power to control everything that an individual citizen might do or own that they imagine might have some conceivable material value to someone else?
Justice Clarence Thomas said the following about the New Deal and the Commerce Clause--
I am aware of no cases prior to the New Deal that characterized the power flowing from the Commerce Clause as sweepingly as does our substantial effects test. My review of the case law indicates that the substantial effects test is but an innovation of the 20th century.
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.
supct.law.cornell.edu/supct/html/93-1260.ZC1.html
I wouldn't bet the farm on Justice Thomas voting on the side of the government in this case.
Yeah hopefully. That's why they call it "freedom." And that's all it is. Freedom. It is not a panacea and it doesn't guarantee medical practices which you or anyone else deems optimum. But it is what many of us--although obviously not all FReepers--think is the bedrock of our society and Constitution.
Congress was given the power to regulate commerce "among the several states". This has been interpreted by the USSC to mean interstate commerce into the state. Although Congress has this power, it doesn't mean they must use this power.
I hope we're in agreement up to this point.
For the first 100 years of our country's existence, there was very little "interstate" commerce; most commerce was local. As interstate commerce increased, it was found that local, intrastate commerce could have an effect, in some cases a substantial effect, on the interstate commerce that Congress was attempting to regulate.
One early example that I found was the 1914 Shreveport Rate Case. Congress was regulating interstate rail shipping charges (it is irrelevant why or if this was a good idea). States were complaining that intrastate rail rates were kept artificially low and were being offset by higher interstate rates -- that, in effect, outside states were subsidizing local traffic. The USSC ruled, "It is for Congress to supply the needed correction where the relation between intrastate and interstate rates presents the evil to be corrected, and this it may do completely, by reason of its control over the interstate carrier in all matters having such a close and substantial relation to interstate commerce that it is necessary or appropriate to exercise the control for the effective government of that commerce."
But, the court added that Congress had no authority to regulate purely intrastate commerce: "Congress thus defined the scope of its regulation, and provided that it was not to extend to purely intrastate traffic. It did not undertake to authorize the Commission to prescribe intrastate rates, and thus to establish a unified control by the exercise of the rate-making power over both descriptions of traffic."
The judge made one other point, which really sums up my understanding of the commerce clause as it relates to state activity: "It is unnecessary to repeat what has frequently been said by this court with respect to the complete and paramount character of the power confided to Congress to regulate commerce among the several states. It is of the essence of this power that, where it exists, it dominates. Interstate trade was not left to be destroyed or impeded by the rivalries of local government. The purpose was to make impossible the recurrence of the evils which had overwhelmed the Confederation, and to provide the necessary basis of national unity by insuring 'uniformity of regulation against conflicting and discriminating state legislation'."
So, to answer your question (finally). Congress has no power over any intrastate activity (commerce) that does not or may not have a substantial effect on the interstate activity (commerce) that Congress is attempting to regulate. There were two recent USSC cases where it was ruled that Congress over-reached their use of the Commerce Clause: The Violence Against Women Act (VAWA) and the Gun-Free Schools Act (Lopez) were both ruled unconstitutional.
Congress may be regulating something you think they shouldn't be regulating. Fine. But that doesn't make it unconstitutional. Every two years we elect the people who write the laws. That is where we have the most impact, not sitting at our keyboards saying that the USSC is out of control.
Well, duh. Since there was very little interstate commerce before the 20th century, I would expect very little commerce clause case law before the 20th century also.
I mean, I could say, "My review of the case law indicates that the rulings by the FCC is but an innovation of the 20th century." C'mon.
The judge made one other point, which really sums up my understanding of the commerce clause as it relates to state activity: "It is unnecessary to repeat what has frequently been said by this court with respect to the complete and paramount character of the power confided to Congress to regulate commerce among the several states. It is of the essence of this power that, where it exists, it dominates. Interstate trade was not left to be destroyed or impeded by the rivalries of local government. The purpose was to make impossible the recurrence of the evils which had overwhelmed the Confederation, and to provide the necessary basis of national unity by insuring 'uniformity of regulation against conflicting and discriminating state legislation'."
Apparently, it is relevant as to why, and wheather it was a good idea.
Actually, we're not. The common meaning of the word "regulate", circa 1780 was "to keep in good working order". "To regulate commerce among the several states" was as much an establishment of responsibility as an enumeration of power.
Medical marijuana will have my support if and when it passes FDA approval. I see no reason to make an exception for this drug over any other potentially beneficial drug.
Just because you wish to live in a society that looks like Clan of the Cave Bear doesn't mean the rest of us do.
The leading New Deal utopian on this site - unmasked!
'As a society', indeed! What sort of Hegelian rubbish do you believe?
Methinks you are the ghost of Harry Hopkins...or Frances Perkins. ;^)
Purely within the confines of the commerce clause, I believe that is correct. Banning commerce with foreign nations over national security concerns, for instance would be a different matter.
I defer to your judgment. ;^)
Excuse me, but as a society, "we" (the Founders) decided that the federal government staying the hell out of intrastate business was the best way, overall, to prevent or minimize the harm caused by busybodies. When you want to repeal the IC clause, then do so and the FDA may be given jursidiction there. Until then--with the votes to back it up, you cannot maintain that as a society, we decided that on an intrastate basis.
Food and drugs are interstate business, not intrastate, and the Founders specifically gave Congress the right to regulate that commerce.
"to prevent or minimize the harm caused by busybodies"
The harm caused by busybodies? What's that? How about the harm caused by manufacturers?
"In 1937, a Tennessee drug company marketed a form of the new sulfa wonder drug that would appeal to pediatric patients, Elixir Sulfanilamide. However, the solvent in this untested product was a highly toxic chemical analogue of antifreeze; over 100 people died, many of whom were children."
Busybodies, my a$$.
Willow bark tea was used as a pain reliever for headaches looong before aspirin was available.
And yes, it works.
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