Posted on 10/23/2005 3:45:57 PM PDT by RWR8189
It seems to be a running theme on this board that, no matter the federal law or policy, if it's unpopular it must be unconstitutional.
It is indeed a running theme by some communitarian's on this board that, no matter the federal law or policy, if it's popular it must be constitutional.
No knowledge or thinking required that way.
Mojave
Finding? I believe that quotation was presented to you on a platter in post #93.
"Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the non-importing"
Yes, the origin of the interstate Commerce Clause, why it came about, was to stop this kind of abuse
"and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government.
Within the interstate Commerce Clause is the provision for the states themselves to negate and prevent injustice. This provision was given a name by Chief Justice Marshall -- the Dormant (or Negative) Commerce Clause.
It was envisioned by Madison that the states would work out their commerce differences by using this provision, rather than waiting for Congress to pass legislation to correct it. Chief Justice John Marshall affirmed this in his ruling in Willson v. Blackbird Creek Marsh Co., 2 Pet. 245 (1829):
"We do not think that the act empowering the Black Bird Creek Marsh Company to place a dam across the creek, can, under all the circumstances of the case, be considered as repugnant to the power to regulate commerce in its dormant state, or as being in conflict with any law passed on the subject."
If it's a federal law, then by definition it's constitutional, popular or not.
As I stated before, the language of the Commerce Clause itself allows Congress far-reaching powers to regulate interstate commerce.
Also as I stated before, prior to the 1900's, Congress exercised very little of this power -- but this never meant they didn't have the power (which you must admit).
Also as I stated before, yes, Congress' use of the Necessary and Proper Clause to legislate intrastate activity is also an expansion of federal power, but no more so than Congress' constitutional interstate regulatory efforts.
You say you're all concerned about federal expansion of power, and it turns out that most of that expansion is constitutional and allowed by Madison's Commerce Clause.
Since the federal government has no legitimate jurisdiction, it matters not a fig whether they approve or disapprove.
What we are to do is appoint judges who will tell Congress, NO YOU CAN'T DO THAT when they attempt to exercise powers not granted to them by the Constitution.
For example, when they attempt to stretch the Interstate Commerce Clause to an extent that makes Mr. Fantastic look as stiff as Al Gore.
You've managed to make yourself sound even siller than before, and that's quite a feat.
The federal government doesn't have the power to regulate the interstate commerce of drugs? Where did you read that?
Then give me one, just one, federal law that isn't constitutional.
Yeah, that's what I thought.
Nonsense. If "life" were such an absolute right, then a state that legalized the shooting of burglars in one's home or enacted the death penalty would be an "evil and illegimate government" in need of overthrowing.
Given his opinion of John Marshall, I suppose he thought it pointless (in the way the FReepers would find it pointless to note that, yep, Clinton told another lie today).
Well, duh. If I file a lawsuit to demand that a contractor refund the money I paid him for shoddy and tardy work, and the contractor says that the work was in fact done properly and on schedule, the task of determining what is true falls to... well, whom, since you find it unacceptable that the court should arrogate to itself that function?
It seems to be a running theme on this board that, no matter the federal law or policy, if it's unpopular it must be unconstitutional.
It is indeed a running theme by some communitarian's on this board that, no matter the federal law or policy, if it's popular it must be constitutional.
If it's a federal law, then by definition it's constitutional, popular or not.
163 paulsen
Proof positive that you support the democratic 'majority rules' concept, and reject our national concept of a Republic under rule of only constitutionally valid law.
Well, that's the fundamental error underlying your position.
In order to fall within the "Necessary and Proper Clause", a power must be, well, both necessary and proper. Specifically, in order for a power to be necessary for the regulation of interstate commerce, it must be impossible to effectively regulate interstate commerce without that power.
In Wickard, the Court came up with a bit of judical activism, arguing that in order to regulate interstate commerce, Congress must necessarily have the power to regulate anything that affects interstate commerce. The absurdity of this notion is obvious (e.g. Congress can manage to regulate interstate commerce without the power to control the weather, even though the weather clearly affects interstate commerce), but was papered over for political reasons (the Court was looking for a face-saving way to yield to FDR's demands to effectively set aside inconvenient Constitutional limiations).
The "Communications Decency Act".
If you raise an objection that this is an example of a law that is no longer in force (because it was found to be unconsitutional) get your earplugs -- we laugh pretty loud at people who waste our time with circular arguments.
Is there an existing federal law that's unconstitutional that you'd like me to be aware of? Just one law will suffice.
Proof what?
robertpaulsen wrote:
Then give me one, just one, federal law that isn't constitutional
Looks like I called it (Msg#177). Would that I could predict the Powerball numbers one-tenth as well....
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