Posted on 10/16/2009 8:29:12 AM PDT by Huck
Today’s installment.
“Last, I will argue that the harm created through Commerce Clause jurisprudence appears irreversible...”
Absolutely not irreversible...
Saying it’s so doesn’t make it so. Go ahead and make your case—I’m listening.
Thomas is still the best Justice on the Court, nothing new there.
Definitely.
“Saying it’s so doesn’t make it so. Go ahead and make your case—I’m listening.”
Make the case that a precedent is irreversible? Why? It’s self evident.
The Commerce Clause is about to be severely tested by the current Administration, Senate and Congress in whether they can impose their health care laws upon the states. I consider that they do not have this right.
Scalia is the wrong target.
Scalia jumped the shark for me in this decision, and it also confirmed Thomas as the best justice, if not perfect himself (he went with Congress stretching “limited times” of copyright beyond belief).
I think you meant to say “reversible.” What is evident is that as recently as 2005, the Supreme Court affirmed the body of Commerce Clause jurisprudence, and was joined by the second most “originalist” justice on the bench. If you don’t comprehend what that means, then you don’t understand the judiciary.
“Saying it’s so doesn’t make it so. Go ahead and make your case—I’m listening.”
It’s not my case, but there is this thing called the amendment process. And even if it’s not likely to happen, the interstate commerce clause could be blotted out.
The greatest growth in this country’s influence and economy came when we were following the Constitution as written, before the New Deal era and following extension of the Commerce Clause and discarding the Tenth Amendment.
It will be extremely difficult to reverse, since reversal will mean undoing Social Security, Medicare, the EPA, the Department of Education, etc., etc. Desirable? Yes. Possible? It will take a President willing to veto any bill that violates those principles in which we believe and to appoint judges and Justices who will do the same.
This wasn’t a popular position in law school, but it is the only real reading of the Constitution to me.
BTW, As much as I love Ben Franklin his words of wisdom in your tagline are not well thought out. The Holy Saints never died of fasting and all they lived on was hope.
The current occupant of the White House's snake oil pitch he sold during the election and the theological virtue of hope couldn't be more antithetical in meaning. The former is straight from Hell and the latter is straight from Heaven.
Have you given any thought to how this case compares with the states who want to sell guns made within that state thereby exempting those sales from federal control?
It's Scalia's fault!
Maybe Sarah Palin, Ronald Reagan, Ann Coulter, William F. Buckley, Russel Kirk and Newt Gingrich had a hand in it too. I dunno. It's possible. Conservatives are always at fault. Even when liberals do it.
The majority in Heller (composed by Scalia) is another decision that really bugs me. He completely and obviously misconstrued the 1937 Miller precedent (e.g., "Miller was convicted" is false. Miller's indictment was quashed! He was never even tried). As far as I'm concerned, SCOTUS is just another bunch of elitist hacks.
There is no logical remedy (set of rules, rewritten constitution, whatever) that will operate against dishonest, illogical hacks. Any set of words can be ignored or twisted to meet whatever outcome the "power man" desires.
Scalia deserves whatever criticism he gets for Raich. It was clearly a case of outcome-based jurisprudence, especially when compared to Lopez.
I included him in the title in part as an attention-grabber (I'd like people to read my essay, after all), but in my view it is fair criticism and it goes to my larger point.
The power of the federal judiciary, and their methods (common law, stare decisis) make their errors virtually permanent, and the more times an error is affirmed, the more unlikely it becomes that it will be reversed.
The powers granted to the the Fed Gov via commerce clause jurisprudence are so monumentally far-reaching, it is critical to the survival of any semblance of limited federal power that they be reversed. If not, we're screwed.
The Commerce Clause is about to be severely tested by the current Administration, Senate and Congress in whether they can impose their health care laws upon the states. I consider that they do not have this right.
Even if the Court pulls together a majority opposed to federal health care legislation, they will do so in a limited way that does not undue the overall impact of the commerce clause--in short, it would be a political victory, not a judicial victory. Contrast Lopez and Raich and you'll see what I mean. They'll apply the law however they see fit to reach the desired end. This demonstrates the inherent flaw in the Constitution that created a judiciary that is more powerful than the legislative branch, and unaccountable for their errors. Scalia is the wrong target.
Raich will be used to render Montana/Utah's attempts to make in-state weapons and ammo out of reach of the feds to be nothing but grandstanding. CA tried to make in-state pot legal, and that is not accepted by the Feds. There is a case on the books of a fellow with a homemade machine gun, probably never left his house, and he was convicted (upheld too) on federal charges.
Logical remedy is going to be my next inquiry. I think the answer will be to not empower the hacks in the first place. That was the point of the anti-federalists. The Constitution created the hacks, the "power man", where there were none. There was no Federal judiciary, once upon a time.
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