Posted on 05/10/2004 10:50:25 AM PDT by DaveCooper
What is the basis for saying there was very little interstate commerce before the 20th century?
There was enough going on in the 18th century that the Founders gave it its own clause in the Constitution. C'mon.
And I let your little Clan of the Cave Bear false dichotomy slide, but that was the lowest I've seen. As if the U.S. were Clan of the Cave Bear prior to the unconstitutional Harrison Narcotic Act, but is somehow now so civilized with the WOD.
Can't you argue the law?
Sulfanilamide? That may be an unfortunate example on your part, considering how many lives have been saved with it. Your a$$ really IS showing. Take a vacation, Bob.
I read it somewhere, why? Don't you believe it?
The key part of my statement, however, is the second half, "I would expect very little commerce clause case law before the 20th century also." This is supported by:
"Of the approximately 1400 cases which reached the Supreme Court under the clause prior to 1900, the overwhelming proportion stemmed from state legislation. The result was that, generally, the guiding lines in construction of the clause were initially laid down in the context of curbing state power rather than in that of its operation as a source of national power."
-- caselaw.lp.findlaw.com/data/constitution/article01/28.html
Geez. Did I say Sulfanilamide? I thought I said Elixir Sulfanilamide.
"Elixir Sulfanilamide is a sulfa drug (antibiotic) released by Massengil in1937 in liquid form without prior toxicity testing of its solvent. The solvent diethylene glycol, used today as automotive antifreeze, caused the death of 107 people, mostly children. The chemist who created the elixir committed suicide. The “Elixir Sulfanilamide tragedy” prompted the passage of the Food, Drug, and Cosmetic Act of 1938."
What, do you prefer 99%? OK.
Actually, food and drugs didn't exist until FDR threatened to "pack the court". Then, like Spring flowers, food and drugs came into existence. FDR immediately regulated them. The flowers, too.
"Beginning as the Division of Chemistry in the U.S. Department of Agriculture in 1862, and then (after July 1901) the Bureau of Chemistry, the modern era of the FDA dates to 1906 with the passage of the Federal Food and Drugs Act."
I read it somewhere, why?
Because it sound like a bogus claim and I'd like to see a source before I give it any credibility.
Don't you believe it?
No, I don't believe it. There was a thriving trade between the colonies before independence and the Founders wanted that to continue. There were railroads, canals, and post roads all involved in facilitating interstate commerce before the 20th century.
"Of the approximately 1400 cases which reached the Supreme Court under the clause prior to 1900, the overwhelming proportion stemmed from state legislation. The result was that, generally, the guiding lines in construction of the clause were initially laid down in the context of curbing state power rather than in that of its operation as a source of national power."
Sounds like they're making my point. The Commerce Clause was not used as a source of Federal power.
Perhaps because the 16th and 17th Amendments did not exist before 1900 and Congress had not yet signed on to the New Deal substantial effects sophistry?
Apparently they came into existence through an act of commerce, since wherever they exist, commerce is assumed.
I get close to 50% of my meat, fruit, vegetables, milk, cheese and eggs, from no further that one county away. Where does your food come from?
I agree that the Commerce Clause was not used as a source of Federal power before the 20th century . But that wasn't your point. I thought this goes back to your buddy Clarence Thomas' quote that "My review of the case law indicates that the substantial effects test is but an innovation of the 20th century."
And I said, "Duh, there was very little (federal) case law for he and the USSC to draw from." It makes MY point.
My point is that it's not as though the USSC could reference all these federal cases which ignored "substantial effects", then all of a sudden there's this big shift caused by FDR where "substantial effects" is the basis for every USSC commerce clause decision.
I even pointed out the 1914 Shreveport Rate Case which dealt with the "substantial" relation between intrastate and interstate rates. Twenty years before FDR.
Are you saying that Congress is regulating your purchase of meat, fruit, vegetables, milk, cheese and eggs? Are you not allowed to purchase any of these items? Are you able to only purchase a given amount? Do you need a special ID card to purchase these items?
I don't understand your statement, "I get close to 50% of my meat, fruit, vegetables, milk, cheese and eggs, from no further that one county away." We were discussing Congress' power to regulate interstate commerce. This would include intrastate commerce that substantially affects the interstate commerce that Congress is regulating.
That was my point. As you say, the Commerce Clause was not used to expand Federal power before the 20th century.
How was the Commerce Clause used to expand Federal power in the 20th century if not by the substantial effects test?
And I said, "Duh, there was very little (federal) case law for he and the USSC to draw from." It makes MY point.
Exactly Thomas' point. There was little Federal case law for the USSC to draw on that used substantial effects because it was an invention of the 20th century. Duh, indeed!
My point is that it's not as though the USSC could reference all these federal cases which ignored "substantial effects",
Correct. As I said before, Congress hadn't adopted this sophistry before 1900.
then all of a sudden there's this big shift caused by FDR where "substantial effects" is the basis for every USSC commerce clause decision.
That's exactly what happened. It's a 20th century living breathing document philosophy that gave us a huge, expensive, intrusive Federal bureaucracy.
I even pointed out the 1914 Shreveport Rate Case which dealt with the "substantial" relation between intrastate and interstate rates. Twenty years before FDR.
A substantial relationship between intrastate and interstate rail rates is not synonymous with "aggregate effects" of non-commercial intrastate activity having a "substantial effect" on interstate commerce. You're basically arguing that there is no such thing as a "New Deal Commerce Clause", and that federal power exercised under the commerce clause was no different prior to FDR than after. If you think that's going to pass muster on a conservative political forum, you really are either delusional or desperate.
As you've acknowledged, when it comes to the commerce clause Congress didn't adopt much of anything before 1900. The "overwhelming proportion" of commerce clause cases that came before the USSC prior to 1900 came from state legislation.
"Substantial effect" didn't change much of anything. What was there to change? Nothing before 1900, right? Where are all these hundreds of USSC rulings on federal commerce clause regulations that became null and void because of FDR?
Maybe there were one or two cases. Who says they were decided correctly? Who's to say that "substantial effect" isn't the correct interpretation after all? The phrase "substantial relation" was used in the 1914 Shreveport Rate Case, two decades before FDR.
Priceless.
Correct. Senators were appointed by State legislatures and there was no Federal income tax. The Commerce Clause was properly used for things like ensuring uniform rail width across State lines.
"Substantial effect" didn't change much of anything.
You're kidding, right? The expansive New Deal application of the Commerce Clause has resulted in a huge, expensive, and intrusive bureaucracy.
Where are all these hundreds of USSC rulings on federal commerce clause regulations that became null and void because of FDR?
How could there be any Federal commerce regulations voided if Congress didn't pass them in the first place? The New Deal Democrats were breaking new ground.
Who's to say that "substantial effect" isn't the correct interpretation after all?
Well, if you're a Liberal and believe in a big powerful central government, I guess one would say it was correct.
However, Justice Thomas has it right:
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.
On that we agree though we may argue, and will, about whether they were breaking that new ground constitutionally.
This was exactly the point I was trying to make. Some on this board insist that FDR's "packed court", "New Deal", "socialist policies", yada yada, changed the way the Commerce Clause was previously implemented. I posit they didn't change squat -- they simply implemented the Commerce Clause in a way that accounted for intrastate effects.
I know, we disagree on this implementation. You're fond of quoting Justice Thomas -- allow me to quote another USSC figure, Justice Hughes:
"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.'"
Simply put, allowing a state to legislate away federal commerce clause power puts us right back to where we were before the Constitution was written. You call that "Liberalism"? You call that "big government"?
I call it adhering to the intent of the Commerce Clause.
You may not like what Congress is regulating. Fine. We may even agree on most of them. But just because you disgree doesn't make that regulation unconstitutional.
You're not being charged by the word.
First of all, I'd be interested in reading those pre-FDR cases. Any come to mind?
I mean, I gave you the 1914 Shreveport Rate Case which constitutionally reached into the state to set intrastate rates. Maybe you have one where the court ruled that Congress had no authority to regulate intrastate activity, despite the fact that the activity substantially affected interstate regulation?
If you can find one, I would reconsider my contention. Lacking one, maybe you should reconsider yours.
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.