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To: mrsmith
I was looking forward to your input on Commerce Clause jurisprudence.

What follows is an opinion from Justice Clarence Thomas on the Commerce Clause. I've selected two paragraphs for brevity, but the entire opinion is worth reading.

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. Yet this Court's Commerce Clause jurisprudence has endorsed just such an interpretation: the power we have accorded Congress has swallowed Art. I, §8.

Our construction of the scope of congressional authority has the additional problem of coming close to turning the Tenth Amendment on its head. Our case law could be read to reserve to the United States all powers not expressly prohibited by the Constitution. Taken together, these fundamental textual problems should, at the very least, convince us that the "substantial effects" test should be reexamined.

Justice Thomas' entire opinion is here:

www.constitution.org/ussc/514-549c.htm

Do you agree with Justice Thomas that the "substantial effects" interpretation cannot be correct under the Constitution?

417 posted on 06/09/2004 10:15:56 AM PDT by Ken H
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To: Ken H
Seeing such arrogant distortion of the Bill of Rights brought me into this thread. Though the Founders opinions mean nothing to many here I think some suffer from mere ignorance and provided the Founders' views for them to contrast with the views of the proudly ignorant.

My avocation is early US Constitutional history. The Commerce Clause problems didn't arise until later than my useful knowledge extends.
There was an intriguing early mandatory "national health insurance" of sorts for seamen that was passed in the second congress, I believe, which might show a basis for a historical limit to the Commerce Clause (would it include seamen who only sailed within a state or not?). But sadly I haven't run across much on it.

418 posted on 06/09/2004 10:36:11 AM PDT by mrsmith ("Oyez, oyez! All rise for the Honorable Chief Justice... Hillary Rodham Clinton ")
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To: Ken H
I think the paragraph that immedietly precedes what you cited is the most compelling:

But on this Court's understanding of congressional power under these two Clauses, many of Congress' other enumerated powers under Art. I, 8 are wholly superfluous. After all, if Congress may regulate all matters that substantially affect commerce, there is no need for the Constitution to specify that Congress may enact bankruptcy laws, cl. 4, or coin money and fix the standard of weights and measures, cl. 5, or punish counterfeiters of United States coin and securities, cl. 6. Likewise, Congress would not need the separate authority to establish post offices and post roads, cl. 7, or to grant patents and copyrights, cl. 8, or to punish Piracies and Felonies committed on the high Seas, cl. 10. It might not even need the power to raise and support an Army and Navy, cls. 12 and 13, for fewer people would engage in commercial shipping if they thought that a foreign power could expropriate their property with ease. Indeed, if Congress could regulate matters that substantially affect interstate commerce, there would have been no need to specify that Congress can regulate international trade and commerce with the Indians.

421 posted on 06/09/2004 3:23:27 PM PDT by Texas Federalist
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