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FR Poll Thread: Does the Interstate Commerce Clause authorize prohibition of drugs and firearms?
Free Republic ^ | 11-3-05

Posted on 11/03/2005 2:24:08 PM PST by inquest

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To: inquest

I don't recall the "direct" limiting adjective in the Constitution myself. But assuming arguendo, that SCOTUS has taken too robust a view of the commerce clause, I refer you to my comments about precedent, and the factors to consider as to when to hew to it, even if errant, and when not.


381 posted on 11/06/2005 12:45:55 PM PST by Torie
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To: Torie
I don't think interpreting two clauses differently is inconsistent at all.

Of course they're not going to have the same meaning. But applying two different principles of interpretation certainly is inconsistent.

And in this case, one is designed to give power to Congress to preempt state laws, and the other is not.

If anything, that works even further against your position. It was indeed designed to negate state laws that obstructed interstate commerce, not to give the federal government power over individual citizens, and certainly not to give it power over citizens who aren't actually engaging in cross-border trade.

Your attempt to find similarity where none exists, except in some tortured sense to make a tendentious Sophistic argument, might serve to confuse a jury, but that is about the extent of its effectiveness.

Confuse? I said that your inconsistency was that:

"Legislative power over A is viewed [by you] to mean power over things that affect A, but legislative power over B is not viewed to mean power over things that affect B."

If you really find that confusing, I'm sorry, I wish I could help you.

382 posted on 11/06/2005 12:52:12 PM PST by inquest (FTAA delenda est)
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To: Torie

SCOTUS has so held, repeatedly, and for 60 years, and thus such regulation is within the ambit of Congress's commerce clause power, and those precedents will not be reversed under the test used to evaluate whether or not to overturn precedent.

Jurors, be the town juries, county, state federal or Supreme Court jurors hand down opinions. They do not make law. Congress makes laws. "Law makers" is a term often used by the MSM in reference to members of congress. That the separate powers of government have been bastardized is an abomination that has upended justice. This will one day, in the not so distant  future, become common knowledge.

383 posted on 11/06/2005 12:54:33 PM PST by Zon (Honesty outlives the lie, spin and deception -- It always has -- It always will.)
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To: Torie
I don't recall the "direct" limiting adjective in the Constitution myself.

Who said anything about limiting? The power has to be granted in the first place, otherwise it isn't there. See the 10th amendment.

384 posted on 11/06/2005 12:54:45 PM PST by inquest (FTAA delenda est)
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To: SauronOfMordor
"If it took a Constitutional Amendment to grant the feds authority over alcohol"

No. An amendment was desired, not required.

"it strongly implies that they have no such authority over drugs, firearms, polar fleece ..."

The Harrison Narcotics Tax Act was passed in 1914.

385 posted on 11/06/2005 12:55:23 PM PST by robertpaulsen
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To: inquest

You get the last word, you lucky dog, you.


386 posted on 11/06/2005 12:55:37 PM PST by Torie
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To: robertpaulsen
The Harrison Narcotics Tax Act was passed in 1914.

That didn't come from the commerce clause. Look two clauses above on your pocket Constitution.

387 posted on 11/06/2005 12:59:04 PM PST by inquest (FTAA delenda est)
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To: supercat
"Again, I ask: if the SCOTUS had held that Congress could not exercise such authority without a Constitutional amendment, do you really think Congress would not have such authority?"

Gibbons v. Ogden says that Congress has the authority. But, in your hypothetical, of course an amendment would be required.

388 posted on 11/06/2005 1:04:17 PM PST by robertpaulsen
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To: supercat
"For example, if someone who was charged with DUI wanted to argue that (1) their vehicle was parked, and (2) there was no evidence they made any attempt to move it while intoxicated, I think a sensible jury would likely find that even if the person technically had "control" of their vehicle, and even if the engine was running 'cos it was freezing outside, the person's conduct not only posed no risk to anyone, but should be considered commendable compared with the only practical alternative."

They can't do this today?

You're drifting away from your own point. Aren't you arguing for a change in the laws themselves? That the federal drug laws, for example, would be limited to "possession while crossing state lines", or "growing with intent to sell across state lines, or "selling across state lines", and that's the standard that has to be met?

389 posted on 11/06/2005 1:14:14 PM PST by robertpaulsen
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To: tacticalogic
"Legislating from the Bench" is a term used when referring to the Supreme Court along with other courts when they have made laws that do not exist through legislation. The job of legislating was given to the Congress not the courts according to the Constitution.
390 posted on 11/06/2005 1:14:15 PM PST by Paige ("Guard against the impostures of pretended patriotism." --George Washington)
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To: supercat
"Can you identify ANY item or activity that Congress could not arbitrarily regulate or ban under your interpretation of the commerce clause?"

Well, let me see. Congress has the power to regulate commerce among the several states.

Nope, I see no restrictions there, other than the fact that Congress is responsible to the voters who put them there and may just as easily remove them.

391 posted on 11/06/2005 1:21:32 PM PST by robertpaulsen
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To: Reagan Man
I haven't abandoned anything.

Then it remains the case that your statement that "Roe v Wade is viewed as a bad decision by most conservatives and even some high profile liberals" is undercut by your retorting to my criticism of Touby v USA with "Then you take a legal run at it and we'll see how far you get."

As for further discussion, it would be an effort in futility and a waste of my time to argue with someone who holds a completely opposite position then I do.

Your latest evasion is no less transparent than your previous one. The following arguments stand unrebutted:

"you mischaracterize that decision as upholding the CSA, when all it really did was uphold the challenged section."

"Many people view the CSA as an unconstitutional law and for good reason: the Constitution gives the federal government no more than very narrow authority over intrastate transactions (as all pre-FDR courts that ruled on the issue recognized)."

392 posted on 11/06/2005 1:29:37 PM PST by Know your rights (The modern enlightened liberal doesn't care what you believe as long as you don't really believe it.)
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To: Torie
I don't recall the "direct" limiting adjective in the Constitution myself.

Nor "substantial effect." Do you recognize ANY limitation, and if so, on which words from the Constitution is it based?

393 posted on 11/06/2005 1:34:23 PM PST by Know your rights (The modern enlightened liberal doesn't care what you believe as long as you don't really believe it.)
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To: Torie
every criteria there is for such precedent to be binding (expectations, reliance, not shocking to the conscience, workable, reflects the economics realities of a national economy, and national interests)

Whose criteria are those? I see no such language in the Constitution.

394 posted on 11/06/2005 1:36:50 PM PST by Know your rights (The modern enlightened liberal doesn't care what you believe as long as you don't really believe it.)
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To: robertpaulsen
He could have sold less on the open market and kept that amount for his own use with no penalty. He could have produced more and stored it. He could have paid the penalty. He chose d.) none of the above.

He (and a million other farmers) would have affected interstate commerce because by producing more for themselves they would have purchased less on the open market. Surely that's obvious.


1. Yes, he could have knuckled under and been a good little obedient citizen – never questioning the wisdom of The Government. He did not see where his wheat – never intended for interstate commerce – could be covered by the interstate commerce clause. The only way to get a court ruling, and possibly correct an error of law is by violating that law.
By your reasoning, no one should ever question anything dictated by The Government. I believe that we should be able to question edicts of Our Government when necessary.
2. Not, surely it is not obvious. “…because by producing more for themselves they would have purchased less on the open market.” That doesn’t really make much sense. I hope you don’t believe it as written.

From WICKARD v. FILBURN, 317 U.S. 111 (1942):
Appellee says that this is a regulation of production and consumption of wheat. Such activities are, he urges, beyond the reach of Congressional power under the Commerce Clause, since they are local in character, and their effects upon interstate commerce are at most 'indirect.' In answer the Government argues that the statute regulates neither production nor consumption, but only marketing; and, in the alternative, that if the Act does go beyond the regulation of marketing it is sustainable as a 'necessary and proper' implementation of the power of Congress over interstate commerce.
What else can be deemed “necessary and proper”?

395 posted on 11/06/2005 1:37:11 PM PST by R. Scott (Humanity i love you because when you're hard up you pawn your Intelligence to buy a drink.)
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To: Know your rights

Your query is vague and ambiguous. I outlined the limitation I "saw" in the commerce clause above.


396 posted on 11/06/2005 1:37:18 PM PST by Torie
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To: Ken H
"The power to RCATSS was delegated to Congress. It was surrendered by the States to the general government, not shared."

It was not surrendered. You cannot find that among the other Article I, Section 10 surrendered powers.

"Remedial power, when used to negate or prevent an injustice among States, is not an exercise of power for the positive purposes of the general government. And Madison made such a distinction."

True, but only when the states themselves resolve the injustice in a court.

But if the federal government steps in to say, remove a tariff, they do so for the benefit (positive purposes) of the United States, not for the benefit of State A or State B.

"You're still pushing an interpretation of "rather than" as inclusive of what follows."

"A" rather than "B" means "A" is the expected course. It does not preclude "B". You're saying that "B" is not allowed. That's wrong.

397 posted on 11/06/2005 1:38:42 PM PST by robertpaulsen
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To: Know your rights

SCOTUS's, and well accepted by most, including just about all lawyers. Just because a decison is wrong, does not mean ipso facto it should be reversed. I know, you might not like it, and Justice Thomas may not like it, but most like it, and it is the way it is, for good and sufficient and prudential reasons, as made apparent by the parsing of the factors themselves.


398 posted on 11/06/2005 1:39:51 PM PST by Torie
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To: inquest
"What I'm saying is that in order to prevent that from happening, they can not restrict the generation of said "immorality, dishonesty" or "evil or harm"."

Sure they can. That was made very clear in the ruling ... oops. Can't say that.

Yes they can. It's in the U.S. Constitution.

Better?

399 posted on 11/06/2005 1:44:23 PM PST by robertpaulsen
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To: Torie
I outlined the limitation I "saw" in the commerce clause above.

Where? I don't see it.

400 posted on 11/06/2005 1:51:13 PM PST by Know your rights (The modern enlightened liberal doesn't care what you believe as long as you don't really believe it.)
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