Free Republic
Browse · Search
News/Activism
Topics · Post Article

Skip to comments.

Kelo and the 14th Amendment: Exploring a Constitutional Koan
Vanity | 8/21/05 | Mark Edward Vande Pol

Posted on 08/21/2005 7:00:15 AM PDT by Carry_Okie

click here to read article


Navigation: use the links below to view more comments.
first previous 1-20 ... 61-8081-100101-120 ... 141-152 next last
To: elbucko
It's a tough job, isn't it?

Yup. It takes research and repeated refinement. To proffer a simple rant just gets you flack (which you may get anyway from those incapable of reading). There is no substitute for homework and persistence.

Without dreaming the impossible, nightmares become possible.

Tell me about it. You just put your head down and go. It's that "lives, fortunes, and sacred honor" thingy.

81 posted on 08/22/2005 9:03:56 AM PDT by Carry_Okie (There are people in power who are REALLY stupid.)
[ Post Reply | Private Reply | To 80 | View Replies]

To: inquest
Do I understand you correctly as saying that if two businesses in two separate states are conducting trade, that does not fall under the scope of the commerce clause, because the state governments themselves aren't engaging in commerce?

Joseph Story, Commentaries on the Constitution 2:§§ 1073--91

§ 1075 The constitution is one of limited and enumerated powers; and none of them can be rightfully exercised beyond the scope of the objects, specified in those powers. It is not disputed, that, when the power is given, all the appropriate means to carry it into effect are included. Neither is it disputed, that the laying of duties is, or may be an appropriate means of regulating commerce.

But the question is a very different one, whether, under pretence of an exercise of the power to regulate commerce, congress may in fact impose duties for objects wholly distinct from commerce. The question comes to this, whether a power, exclusively for the regulation of commerce, is a power for the regulation of manufactures?

The statement of such a question would seem to involve its own answer. Can a power, granted for one purpose, be transferred to another? If it can, where is the limitation in the constitution? Are not commerce and manufactures as distinct, as commerce and agriculture? If they are, how can a power to regulate one arise from a power to regulate the other?

It is true, that commerce and manufactures are, or may be, intimately connected with each other. A regulation of one may injuriously or beneficially affect the other. But that is not the point in controversy. It is, whether congress has a right to regulate that, which is not committed to it, under a power, which is committed to it, simply because there is, or may be an intimate connexion between the powers. If this were admitted, the enumeration of the powers of congress would be wholly unnecessary and nugatory.

Agriculture, colonies, capital, machinery, the wages of labour, the profits of stock, the rents of land, the punctual performance of contracts, and the diffusion of knowledge would all be within the scope of the power; for all of them bear an intimate relation to commerce. The result would be, that the powers of congress would embrace the widest extent of legislative functions, to the utter demolition of all constitutional boundaries between the state and national governments.

So yes. commerce among the states means just that. To have it otherwise undermines the whole point of FREE enterprise!

82 posted on 08/22/2005 4:08:57 PM PDT by MamaTexan ( I am not a *legal entity*, nor am I a ~person~ as created by law.)
[ Post Reply | Private Reply | To 56 | View Replies]

To: inquest
is that the clause pertained to actual commerce between the governments of two states, as if those governments themselves were parties to a transaction.

YES!

Because the Constitution is a legally binding contract between the political entities known as States and the 'United States' entity the States created to exercise certain enumerated powers....and the entities that entered into the contract are the ONLY ones that can be bound by it!

It's WHY we have no 'right to life' in the Constitution....because it has NOTHING to do with the People except to enumerate a few 'positive law' right in the Bill of Rights.

Also, please see post #82. :)

83 posted on 08/22/2005 4:20:57 PM PDT by MamaTexan ( I am not a *legal entity*, nor am I a ~person~ as created by law.)
[ Post Reply | Private Reply | To 67 | View Replies]

To: MamaTexan
Nice job.
84 posted on 08/22/2005 4:48:55 PM PDT by Carry_Okie (There are people in power who are REALLY stupid.)
[ Post Reply | Private Reply | To 82 | View Replies]

To: Carry_Okie
Thank you, Sir!

(grins)

85 posted on 08/22/2005 5:02:40 PM PDT by MamaTexan ( I am not a *legal entity*, nor am I a ~person~ as created by law.)
[ Post Reply | Private Reply | To 84 | View Replies]

To: Dog Gone
You probably know about this, but note post 82.
86 posted on 08/22/2005 5:03:45 PM PDT by Carry_Okie (There are people in power who are REALLY stupid.)
[ Post Reply | Private Reply | To 82 | View Replies]

To: MamaTexan
I have Cooley's Treatise on Constitutional Limitations and it does go into the Commerce Clause somewhat. Do you know if it is online?
87 posted on 08/22/2005 5:04:38 PM PDT by Carry_Okie (There are people in power who are REALLY stupid.)
[ Post Reply | Private Reply | To 85 | View Replies]

To: Carry_Okie
Do you know if it is online?

I can find it referenced here , but I can't find a copy of the text.

This is a great researchable resource where my previous post came from. The site gives Constitutional clauses, letters from the Founders, and court decisions. the Founders Constitution

There's also the Constitution Society

I'll keep looking, though!

88 posted on 08/22/2005 5:24:02 PM PDT by MamaTexan ( I am not a *legal entity*, nor am I a ~person~ as created by law.)
[ Post Reply | Private Reply | To 87 | View Replies]

To: MamaTexan
I'm well aware of the Constitution Society (of which there are several links in the article on this thread), but your reference to the Founders' Constitution is new to me, thank you.
89 posted on 08/22/2005 5:29:08 PM PDT by Carry_Okie (There are people in power who are REALLY stupid.)
[ Post Reply | Private Reply | To 88 | View Replies]

To: Carry_Okie
YES!

I found my mega resource page here !

Cooley is at #122, but apparently hasn't been scanned yet.

His General Principles of Constitutional Law in the United States of America is at #123.

Here's The Thomas Cooley Law School with several of his writings as well.

(I'll have to check back on the thread later...if I don't feed my crew pretty soon, I think they may riot! :) :)

90 posted on 08/22/2005 5:44:07 PM PDT by MamaTexan ( I am not a *legal entity*, nor am I a ~person~ as created by law.)
[ Post Reply | Private Reply | To 87 | View Replies]

To: MamaTexan
Because the Constitution is a legally binding contract between the political entities known as States and the 'United States' entity the States created to exercise certain enumerated powers....and the entities that entered into the contract are the ONLY ones that can be bound by it!

That description applies to the Articles of Confederation, but the drafters of the Constitution intended for it to go a little bit beyond that. They wanted something that wasn't a purely confederate form of government (where the powers of the central government acted only on states in their collective capacities), and something that wasn't a purely unitary form of government (where the central government was responsible for all the things that governments are normally responsible for). Instead, they came up with a hybrid system where the power of the central government could act directly on citizens, but only in certain limited areas of policy.

For example, under the Articles of Confederation, Congress could only tax the states as states. No citizen of any of the states ever had to pay taxes to the U.S. government - only state governments did. That became a problem, because many states began to shirk their responsibilities, the federal government was completely unable to compel them to pay, and it therefore could not function. Under the Constitution, Congress could levy taxes that private parties themselves were obliged to pay, and state governments were not involved in the process at all.

As for interstate commerce, I agree that Congress has gone way beyond what was intended by that clause - in fact, well beyond the plain language of the clause. In fact, I agree that that clause (unlike other clauses in the Constitution) was not intended to give Congress any power over parties to a commercial transaction, but to take away the states' powers to interfere with commercial transactions. The only point of disagreement I have with what you're saying is that Congress also does not have the power over parties to a commercial transaction even when those parties are state governments themselves. If the Hawaiian government wants to sell bananas to the Texan government, that's as untouchable by the federal government as a Hawaiian company selling bananas to a Texan company.

91 posted on 08/22/2005 5:46:53 PM PDT by inquest (FTAA delenda est)
[ Post Reply | Private Reply | To 83 | View Replies]

To: MamaTexan
Cooley is at #122, but apparently hasn't been scanned yet.

And I paid $75 for a used copy... :-)

92 posted on 08/22/2005 6:50:29 PM PDT by Carry_Okie (There are people in power who are REALLY stupid.)
[ Post Reply | Private Reply | To 90 | View Replies]

To: Carry_Okie
Oh, rats!!

My last post was from the Constitution Society, too.

I will keep looking though, so I can add Cooley's Treatise to my (growing) list of things to read. :)

93 posted on 08/22/2005 6:50:32 PM PDT by MamaTexan ( I am not a *legal entity*, nor am I a ~person~ as created by law.)
[ Post Reply | Private Reply | To 89 | View Replies]

To: Carry_Okie
Frankly, IMO, the BOR is either fully incorporated by the 14th or not at all. Selective incorporation is an abomination

Personally, I'm all for full incorporation. Let's be honest, the constitution would be a meaningless piece of paper to individuals living in states that granted selective rights. What good is freedom of speech on the federal level if your state can imprison you for questioning local government?

94 posted on 08/23/2005 1:28:40 AM PDT by jess35
[ Post Reply | Private Reply | To 79 | View Replies]

To: jess35
Personally, I'm all for full incorporation. Let's be honest, the constitution would be a meaningless piece of paper to individuals living in states that granted selective rights.

I guess you think it was a meaningless piece of paper for the first seventy years of its existence. You forget the Article IV provision for a republican form of government. That means the people are in charge at a local level.

What good is freedom of speech on the federal level if your state can imprison you for questioning local government?

What good is federal protection in the case of CFR? What is your recourse? You have none, anywhere in the US, because SCOTUS has decided it. Now we are getting laws against hate speech. By your preference, a global government would be a great way to solve injustices among nations.

Wanna bet how that would work out?

By contrast, under the original Constitution, if you are a member of a religious enclave, you don't have to tolerate blasphemy around your children.

95 posted on 08/23/2005 6:14:17 AM PDT by Carry_Okie (There are people in power who are REALLY stupid.)
[ Post Reply | Private Reply | To 94 | View Replies]

To: jess35
What good is freedom of speech on the federal level if your state can imprison you for questioning local government?

You're assuming that just because states have that power (assuming it's not prohibited by their own constitutions), they'll therefore exercise it at every opportunity. It doesn't necessarily work that way. There are political consequences when politicians try to do things like that. But with the federal government, it's both harder for citizens to exert control over government, and more dangerous when the federal government goes beyond its bounds, because its control is nationwide.

96 posted on 08/23/2005 9:55:20 AM PDT by inquest (FTAA delenda est)
[ Post Reply | Private Reply | To 94 | View Replies]

To: Carry_Okie
By contrast, under the original Constitution, if you are a member of a religious enclave, you don't have to tolerate blasphemy around your children.

That's right. You can live under the rule of the majority and imprison or put to death anyone who says anything the majority finds offensive. Isn't that grand.

97 posted on 08/23/2005 10:28:45 AM PDT by jess35
[ Post Reply | Private Reply | To 95 | View Replies]

To: inquest

Of course the majority will exercise their power at every opportunity. Jim Crowe was majority rule.


98 posted on 08/23/2005 10:33:59 AM PDT by jess35
[ Post Reply | Private Reply | To 96 | View Replies]

To: jess35
You can live under the rule of the majority and imprison or put to death anyone who says anything the majority finds offensive.

Yes, you have to suffer attacks from people bent upon destroying your culture as opposed to live and let live from a respectful distance. Isn't that grand.

You quite apparenly believe that the Amish or the Mennonites have no right to form a town without allowing gay atheists in their midst. We disagree.

99 posted on 08/23/2005 11:14:45 AM PDT by Carry_Okie (There are people in power who are REALLY stupid.)
[ Post Reply | Private Reply | To 97 | View Replies]

To: jess35
Jim Crowe was majority rule.

And yet it only persisted in one, less densely populated area of the country. The northern states didn't need federal judges to tell them not to enact such laws, because the majority whites in those states understood that it was not in their self interest to oppress blacks. It wasn't in the self interest of southern whites to do it either, but they were acting out of irrational fears.

This sort of thing illustrates my point. Federal abuses of power affect everyone in the country, whereas state and local abuses affect only those who live in their respective jurisdictions. Those people have more options (like leaving, for example) than those who are oppressed by federal overreaching.

100 posted on 08/23/2005 12:14:10 PM PDT by inquest (FTAA delenda est)
[ Post Reply | Private Reply | To 98 | View Replies]


Navigation: use the links below to view more comments.
first previous 1-20 ... 61-8081-100101-120 ... 141-152 next last

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.

Free Republic
Browse · Search
News/Activism
Topics · Post Article

FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson