Posted on 01/25/2005 3:57:10 PM PST by jonestown
Congress Shall Make No Law
by Matt Giwer
Without going through a myriad of examples of Congress exceeding it delegated authority, let us cut to the quick.
In passing laws in areas not delegated to it in the Constitution, it is not, repeat NOT, responding to new social pressures and changes in the world. I grant there have been many changes in the two hundred plus years since it was adopted. But what Congress is doing is not adapting to those changes.
What Congress is doing is exactly the state of affairs the Constitution itself was intended to prohibit.
For example, at no time was the granting of the power to regulate interstate commerce intended to me the power to prohibit interstate commerce.
If the power to regulate were intended to be the power to prohibit interstate commerce then the federal government would have been granted the power to economically isolate the states. No one suggests that was a power granted to Congress.
Yet, while agreeing there is no power of prohibition, we have many laws prohibiting some forms of interstate commerce. Try selling kiddie porn across state lines with an FBI agent present and see what happens. That is the power of prohibition that was not granted in the general and obviously does not exist in the particular, ANY particular.
The assault weapons ban is the same issue. It is clear that if Congress has the power to ban the manufacture of assault weapons and prohibit them from interstate commerce then in fact Congress has the power to ban any and all interstate commerce, regardless of the commodity.
If Congress should decide it does not want people traveling between states it clearly has the power to make doing so a felony if you grant it has the power to prohibit any activity between the states.
-Snip-
Technology does not change human nature.
19+1 rounds in a handgun instead of one shot flintlocks do not increase crime. In the history of London the single most effective thing to decrease crime was gaslights on the streets. The "guest bedroom" came about as no dinner guest in his right mind would go home after dark in the best of neighborhoods.
So are increasing gun restrictions a result of increased technology? Of course not. But why the increased restrictions?
Because human nature wants regimentation of human behavior.
Regulating the arms a person may possess is as old as human history. When Romans were using short swords "civilian" swords were limited to a fraction of that length. When Japan saw its Samurai system threatened by black powder it banned guns rather than getting better guns. When the peasants revolted against Peter the Great's attempt to industrialize Russia they were banned from having any weapons.
So what is new? The people who claim new laws are necessary because of changing times are NOT talking about laws which address the changes in our times. They are in fact regressing to the exact traditional and primitive response people have always had. And the people specifically did not give Congress the power to exercise those primitive responses.
Why should Congress have the power to prohibit Kentucky from growing and exporting marijuana? Where is it written Congress has the power to prohibit arbitrary items from interstate commerce? The last time that was tried, it was called Prohibition and took a Constitutional Amendment.
Where is it written Constitutional Amendments are no longer needed to do the same thing?
I am fully aware that the points I am raising are at best thirty years away from a "concerted and no failures along the way" effort to be recognized again as the meaning of the Constitution. It really is time to start over. At present the country is on a path of worship it prior decisions and refusing to admit its previous errors lest "the turmoil be too great."
It is trivial to point out that a finding against all federal drug laws would wreck havoc upon our country. But it is more important to uphold justice in that they have committed no crime as Congress had no power to pass any such law.
We are arguing our own precedent rather than the Constitution. The Constitution is not sacred. It can be changed at any time and the means of changing it are stated within it.
But when these "forces of change" are in fact regressions to exactly the arbitrary powers of government it was intend to prohibit, that is not progress. It is not response to changing times. It is regression to pre-constitutional times when anything was fair game. Gentlemen and ladies, it looks like a duck, it waddles like a duck. I would prefer to believe it is a duck than a Constitutional law.
First, It really doesn't matter what you want. What matters is that when it says congress shall make no law, that's what it means.
Second, it doesn't really matter what the majority wants UNLESS they organize and act properly through the amending process. If you want a democracy, move somewhere else. You live in a Republic.
Third, Your example about kiddie porn is childishly naive. Kiddie porn has existed, does exist and will exist forever. Federal laws do nothing that state laws can't do, except of course, make people feel good.
Fourth, Your middle of the road moniker makes me think of the biblical reference to spitting out luke warm water. Middle of the road won't get it done. Only the lawful road of the Constitution and Bill of Rights.
Fifth, if you were being sarcastic in your post. Please use < / sarcasm> tags next time. Thanks.
You want those bums dictating 'morals' to your kids?
You want the courts backing them up in that assumed 'power'?
Mind boggling.
It does not "delegate" this power to the Federal government, but, at least originally, the states could.
Certain powers are prohibited to the States. Infringing on our individual rights are among those prohibited powers. -- Our original States never had unlimited police powers, nor do ones admitted since.
Remember, some states actually had state religions once because the Constitution only prohibits that to the Federal government.
The colonial State religions were, in effect, 'grandfathered in' by the wording of the 1st Amendment. The political compromise worked, as they were gone within 50 years.
-- Utah tried, and failed, to have a State religion when it first asked for admission.
Only since the 14th Amendment.
Only since the 14th Amendment.
Like your misconceptions about the 1st, you misunderstand the 14th.
Article VI clearly says that ALL State officials must support the Constitution as the supreme Law of the Land.
-- The 14th reiterated that fact to a bunch of good ole boys who refused to admit the 2nd applied to ex slaves.
Well, I do come here to learn! Why do so many state constitutions contain redundant bills of rights?
Did the Founding Fathers intend that the states be allowed to undermine and subvert Congressional regulatory efforts? If so, then why give Congress that power?
It's one thing to say that Congress shouldn't be regulating drugs -- that the matter is best left to the states. That's a valid argument.
It's a totally different argument to say that Congress cannot regulate drugs. That's the argument made by people who wish the courts to do for them what the majority of citizens do not.
Whatever the reasons, 2/3 of the people wished to re-legalize alcohol.
If you want all recreational drugs to be legal, then do the same -- pass a constitutional amendment.
"In your opinion, if it were acknowleged that the wholly intrastate activities of a state (or states) had a substantial negative effect on Congress' constitutional interstate regulatory efforts, what then? (Don't think drugs -- think airline routes, TV and radio frequencies, national standards, tainted food products, etc.)."
If the wholly intrastate activities of a state reached beyond the state and had an effect on interstate commerce, Congress would be within its rights to regulate that. An airline route running only intrastate or tainted food not being shipped out of state are not appropriate areas for federal regulation. If a TV station or radio station were broadcasting such that the frequency could be picked up in another state, then that probably would be appropriate.
Laws like these are not black and white; there is a lot of grey area. The grey area is what fuels the expansion of our government into an ever bigger list of rules and regulations. It's incremental, it's bad, but it's hard to know what to do about it.
" Do you two really believe our Constitution gives our Fed, State or local legislators the police power to regulate our "morals"?
You want those bums dictating 'morals' to your kids? You want the courts backing them up in that assumed 'power'?"
Yes, I do believe that state and local governments have a right to legislate for health, safety, and morals under the so called "police power", as it has come to be known.
This is why we have laws against (among other things) obscenity, incest, selling tainted food, having bonfires in your backyard in the middle of a hot dry summer, etc. Should these things be regulated? That is a subject for debate. But the fact that states and local governments do have the constitutional power to regulate such things (provided that the Bill of Rights is respected) is not a matter of debate among Constitutional scholars.
" California, for instance, literally forgot to include a RKBA's type clause in their Constitution back in '49..
-- Now, the socialists claim that the State has no obligation to follow the US Constitutions 2nd Amendment.
Some 'conservative' trolls on this site agree, strange as that may sound.."
I don't know anyone on this site who would agree with California's position on the 2nd amendment; it's just plain wrong. Even the most die hard "states' rights" types understand that the Federal Constitution places limits on the states.
I don't agree with California's position on the 2nd amendment, but it is constitutional.
The second amendment has not been "incorporated". When it comes to second amendment issues, therefore, states are bound only by their state constitutions -- California's state constitution (along with, I think, five other states) is mute on the RKBA.
"Another important factor in the small arms-control debate is federalism. Like all the other Bill of Rights Amendments, the Second Amendment was originally added to the Constitution to limit the power of the federal government only. Both the 1876 decision of United States v. Cruikshank and the 1886 decision of Presser v. Illinois recognized this and explicitly stated the Second Amendment limits the power of the federal government only."
"The basic liberties of the Bill of Rights did not become applicable to the states until after the adoption of the Fourteenth Amendment. Among other things, the Fourteenth Amendment prohibited the states from depriving "any person of life, liberty, or property, without due process of law." Through a tortuous, decades-long process, the Court eventually adopted the view that certain fundamental liberties in the Bill of Rights could be incorporated through the due process clause and turned into limits against the power of the states also. In separate decisions, the right of free speech, the right to freely exercise one's religion, the right to be free from unreasonable searches and seizures, and so on, were made applicable to the states by the Justices."
"The Second Amendment right to bear arms, however, has never been incorporated by the Court into the Fourteenth Amendment. The result is that today the Second Amendment, whatever it may mean, operates to restrict only the power of the federal government. The states remain unfettered by the Amendment's limitations. They remain essentially free to regulate arms and the right to bear them as they choose, in the absence of strictures in their own state constitutions and laws."
-- time.com, Alain Sanders
You are screwed up beyond belief. You have so totally distorted and twisted the Constitution that you now believe that we need a constitutional amendment to TAKE BACK powers that were never given to the federal government in the first place.
So in your words, the federal government can do any damned thing it wants and if the people DON'T want the federal government to do it then the Congress and 2/3 of the states must pass an amendment to prevent it. Unbelieveable. No, totally believable form a Brownshirt like you.
Do you REALLY think that 2/3 of the Congress would EVER pass an amendment to release power that only a simple majority were required to steaL?
You are such a fool that you MUST be a lawyer.
No, I'm saying you should get a constitutional amendment to take back powers that were given to the federal government. Just like the 21st amendment did.
You're just upset because you know you couldn't get 1% of the population to agree that all drugs should be legal, much less 67%.
You're just like the liberals -- get the courts to do your dirty work for you. Easier to convince five Supreme Court justices than 200 million citizens, eh?
Southwest Airlines has already litigated the intrastate airline scenario and they won (way back in the early '70s when larger airlines tried to force them out of business using the power of the federal government). The ruling was that federal government had no power to regulate them when they were just flying to Houston, Dallas, and Austin.
Practically all laws are an extension of morals. It is a simple fact.
If you want all recreational drugs to be legal, then do the same -- pass a constitutional amendment.
Backwards. First there was an amendment to give the Fed the authority to outlaw alcohol. That is because they DIDN'T HAVE that power. Then there was an amendment to take back that power. Now the Fed NO LONGER has that authority.
Now, replace alcohol with drugs/guns/etc. and tell me what the difference is. No one in there right mind would claim the the Fed could unilatteraly outlaw liquor based on the commerce clause.
I don't normally recognize "time.com" as an authority on the limits of government.
I am aware of the "incorporation" issue surrounding the 2nd amendment, but do not agree that the way this issue has been interpreted by our courts is backed up by sound reasoning. There is simply no reason not to incorporate the 2nd amendment into the 14th; we know that the constitution restrains the government from infringing the bill of rights, and the lack of "incorporation" is more about statist control than a true constitutional grant of power to regulate firearms by the states.
Exactly. Reflexively, people realize why it's gross to sleep with your sister, and why it's not okay to beat your wife, and why it's not a good idea to have a bonfire in the backyard during the driest part of the summer.
You have FReepmail!
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.