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To: tacticalogic
"I write separately only to express my view that the very notion of a ‘substantial effects’ test under the Commerce Clause is inconsistent with the original understanding"

Well, there goes the FAA regulating intrastate flights, huh? Fly the hostile skies of Clarence Thomas.

"Commerce among the States, cannot stop at the external boundary line of each State, but may be introduced into the interior. It is not intended to say that these words comprehend that commerce, which is completely internal, which is carried on between man and man in a State, or between different parts of the same State, and which does not extend to or affect other States."
-- Gibbons v Ogden (1824). Opinion written by Chief Justice and Founding Father John Marshall.

Geez. It sure does seem to me that Chief Justice and Founding Father John Marshall was saying that if commerce DID affect other states, Congress may regulate it. (Later courts clarified that and said not only must it affect other states, it must substantially affect other states.)

Who to believe? A Founding Father's opinion in a landmark case or Clarence Thomas' musings?

43 posted on 01/15/2007 5:40:32 PM PST by robertpaulsen
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To: robertpaulsen

And so start the lies of omission.


46 posted on 01/15/2007 5:55:00 PM PST by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
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To: robertpaulsen; tacticalogic; tpaine

More insight from the Founding Fathers about the balance between state and federal government (from actual drafters of that document, rather than people like Marshall who merely voted to ratify it):

During the debates on the Constitution between 1787 and 1788, many observers worried that the generality of the document, combined with the Supremacy Clause, would allow a centralization of power in the hands of the Federal Government beyond the limited enumerated powers granted to it. Much of the initial opposition to the Constitution was rooted in the fear that the Federal Government would become too powerful and would eliminate the States as viable political entities. Samuel Adams, for example, worried that if the several states were to be joined in "one entire Nation, under one Legislature, the Powers of which shall extend to every Subject of Legislation, and its Laws be supreme & controul the whole, the Idea of Sovereignty in these States must be lost." Similarly, George Mason argued that "the general government being paramount to, and in every respect more powerful than the state governments, the latter must give way to the former."

This concern was so strongly voiced that the proponents of the Constitution assured that a Bill of Rights, including a provision explicitly reserving powers in the States, would be a top priority for the new Congress. The Tenth Amendment was added soon after ratification in 1791. It emphasizes:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

The drafters of the Constitution believed that to protect liberty, power should be divided between the Federal and State Governments so that "[a]mbition be made to counteract ambition." They described this new form of government as "in strictness, neither a national nor a federal Constitution." Madison explained the division of power by contrasting the attributes of a "national" government with the federal system of governance established by the Constitution. He explained that while a national government would possess an "indefinite supremacy over all persons and things," the government established by the Constitution consisted of "local or municipal authorities [which] form distinct and independent portions of the supremacy, no more subject within their respective spheres to the general authority, than the general authority is subject to them, within its own sphere." In this "compound republic of America," Madison said, "[t]he different governments will control each other, at the same time that each will be controlled by itself."

While the Constitution limited the powers of Federal Government, and the Federal Government checked the States in limited areas such as interstate commerce, the States also were limited by competition among themselves. Federalism created a marketplace among governments. Citizens could vote with their feet and take themselves and their wealth elsewhere if subject to abuse.

http://www.senate.gov/~govt-aff/s1214_report.htm


55 posted on 01/15/2007 6:45:45 PM PST by ellery (The true danger is when liberty is nibbled away, for expedience, and by parts. - Edmund Burke)
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