Replies

"in the sense of being far beyond the intention of Madison."

Madison's intention?

Do you think it was Madison's intention to let each state regulate airline traffic within the state such that they flew at their own state-designated altitudes, on their own frequencies, their own traffic patterns ... despite the fact that the federal government was regulating interstate airline traffic? Ditto for the assignment of TV, radio, cellular, and other frequencies?

Please. Convince me that this would encourage commerce and be good for the country. I could use a good laugh.

You got this bug up your butt about drugs, and you want to twist and distort the constitution, throwing the country under the bus, just to legalize them. What's up with that?

"Didn't you just say that if a spineless court rolls over and lets Congress do whatever Congress wants with the commerce power, that's really not a problem because we can elect a new Congress?"

There's enough blame to go around. Congress had nothing to do with Roe v. Wade, sodomy, or eminent domain. And in the case of CFR, they and the USSC are equally culpable.

"I still see those things as things Madison would say are among the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State."

They are, absent any federal legislation that would supercede it.

"I believe that if he knew we would one day be arguing over whether a homegrown cannabis plant or machine gun for personal consumption was interstate commerce, he would have entertained a few more apprehensions about that new power"

They're NOT interstate commerce. Growing and possessing a cannabis plant has a substantial effect on the interstate commerce that Congress is currently regulating. There is a Congressional finding to this effect, and is contained within the legislation. Since it has a substantial effect, Congress may legislate growing and possessing a cannabis plant.

Now, if you truly believe that millions of people across the United states growing cannabis would have no effect on Congress' interstate regulatory efforts, then you're speaking from an agenda and not common sense and there is nothing I can say to convince you otherwise.

So I won't even bother to try.

Do you think it was Madison's intention to let each state regulate airline traffic within the state

Sure, if the states were very stupid and wanted to do that, and if they were not using that power to prevent carriers from other state from engaging in interstate commerce. But Madison probably would have pointed out the advantages of just turning over control of the state's airspace to the federal ATC system.

Growing and possessing a cannabis plant has a substantial effect on the interstate commerce that Congress is currently regulating. There is a Congressional finding to this effect, and is contained within the legislation.

Just because Congress says something does not make it true.

Here's part of Justice Thomas' response to their quite unbelievable assertion:

The majority holds that Congress may regulate intrastate cultivation and possession of medical marijuana under the Commerce Clause, because such conduct arguably has a substantial effect on interstate commerce. The majority’s decision is further proof that the “substantial effects” test is a “rootless and malleable standard” at odds with the constitutional design. Morrison, supra, at 627 (Thomas, J., concurring).

The majority’s treatment of the substantial effects test is rootless, because it is not tethered to either the Commerce Clause or the Necessary and Proper Clause. Under the Commerce Clause, Congress may regulate interstate commerce, not activities that substantially affect interstate commerce–any more than Congress may regulate activities that do not fall within, but that affect, the subjects of its other Article I powers. Lopez, supra, at 589 (Thomas, J., concurring). Whatever additional latitude the Necessary and Proper Clause affords, supra, at 9—10, the question is whether Congress’ legislation is essential to the regulation of interstate commerce itself–not whether the legislation extends only to economic activities that substantially affect interstate commerce. Supra, at 4; ante, at 5 (Scalia, J., concurring in judgment).

The majority’s treatment of the substantial effects test is malleable, because the majority expands the relevant conduct. By defining the class at a high level of generality (as the intrastate manufacture and possession of marijuana), the majority overlooks that individuals authorized by state law to manufacture and possess medical marijuana exert no demonstrable effect on the interstate drug market. Supra, at 7—8. The majority ignores that whether a particular activity substantially affects interstate commerce–and thus comes within Congress’ reach on the majority’s approach–can turn on a number of objective factors, like state action or features of the regulated activity itself. Ante, at 6—7 (O’Connor, J., dissenting). For instance, here, if California and other States are effectively regulating medical marijuana users, then these users have little effect on the interstate drug trade.6

The substantial effects test is easily manipulated for another reason. This Court has never held that Congress can regulate noneconomic activity that substantially affects interstate commerce. Morrison, 529 U.S., at 613 (“[T]hus far in our Nation’s history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature” (emphasis added)); Lopez, supra, at 560. To evade even that modest restriction on federal power, the majority defines economic activity in the broadest possible terms as the “ ‘the production, distribution, and consumption of commodities.’ ”7 Ante, at 23 (quoting Webster’s Third New International Dictionary 720 (1966) (hereinafter Webster’s 3d). This carves out a vast swath of activities that are subject to federal regulation. See ante, at 8—9 (O’Connor, J., dissenting). If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison’s assurance to the people of New York that the “powers delegated” to the Federal Government are “few and defined,” while those of the States are “numerous and indefinite.” The Federalist No. 45, at 313 (J. Madison).

Why is Thomas wrong?

You seem to have a bug up your butt about anything that threatens expanding federal power. What's up with that?

Congress had nothing to do with Roe v. Wade, sodomy, or eminent domain. And in the case of CFR, they and the USSC are equally culpable.

Congress did not write the New London Development Plan, it is true, but it was deference to legislators (just like you think should be applied in the case of the commerce clause) which led to the majority opinion in the Kelo case.

I don't like letting politicians decide whether something is public use. Everything looks like a nail when you're holding a hammer. I don't like letting politicians decide whether something is (or substantially affects) interstate commerce, for the same reason. I don't want that kind of deference to politicians when it comes to which restrictions on their competition's ability to communicate are "reasonable."

Here's a nice excerpt from Thomas' dissent in Kelo.

A second line of this Court’s cases also deviated from the Public Use Clause’s original meaning by allowing legislatures to define the scope of valid “public uses.” United States v. Gettysburg Electric R. Co., 160 U.S. 668 (1896), involved the question whether Congress’ decision to condemn certain private land for the purpose of building battlefield memorials at Gettysburg, Pennsylvania, was for a public use. Id., at 679—680. Since the Federal Government was to use the lands in question, id., at 682, there is no doubt that it was a public use under any reasonable standard. Nonetheless, the Court, speaking through Justice Peckham, declared that “when the legislature has declared the use or purpose to be a public one, its judgment will be respected by the courts, unless the use be palpably without reasonable foundation.” Id., at 680. As it had with the “public purpose” dictum in Bradley, supra, the Court quickly incorporated this dictum into its Public Use Clause cases with little discussion. See, e.g., United States ex rel. TVA v. Welch, 327 U.S. 546, 552 (1946); Old Dominion Land Co. v. United States, 269 U.S. 55, 66 (1925).

There is no justification, however, for affording almost insurmountable deference to legislative conclusions that a use serves a “public use.” To begin with, a court owes no deference to a legislature’s judgment concerning the quintessentially legal question of whether the government owns, or the public has a legal right to use, the taken property. Even under the “public purpose” interpretation, moreover, it is most implausible that the Framers intended to defer to legislatures as to what satisfies the Public Use Clause, uniquely among all the express provisions of the Bill of Rights. We would not defer to a legislature’s determination of the various circumstances that establish, for example, when a search of a home would be reasonable, see, e.g., Payton v. New York, 445 U.S. 573, 589—590 (1980), or when a convicted double-murderer may be shackled during a sentencing proceeding without on-the-record findings, see Deck v. Missouri, 544 U.S. ___ (2005), or when state law creates a property interest protected by the Due Process Clause, see, e.g., Castle Rock v. Gonzales, post, at __; Board of Regents of State Colleges v. Roth, 408 U.S. 564, 576 (1972); Goldberg v. Kelly, 397 U.S. 254, 262—263 (1970).

Still worse, it is backwards to adopt a searching standard of constitutional review for nontraditional property interests, such as welfare benefits, see, e.g., Goldberg, supra, while deferring to the legislature’s determination as to what constitutes a public use when it exercises the power of eminent domain, and thereby invades individuals’ traditional rights in real property. The Court has elsewhere recognized “the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic,” Payton, supra, at 601, when the issue is only whether the government may search a home. Yet today the Court tells us that we are not to “second-guess the City’s considered judgments,” ante, at 18, when the issue is, instead, whether the government may take the infinitely more intrusive step of tearing down petitioners’ homes. Something has gone seriously awry with this Court’s interpretation of the Constitution. Though citizens are safe from the government in their homes, the homes themselves are not. Once one accepts, as the Court at least nominally does, ante, at 6, that the Public Use Clause is a limit on the eminent domain power of the Federal Government and the States, there is no justification for the almost complete deference it grants to legislatures as to what satisfies it.

Thomas is right, and whether you're talking about reasonable restrictions on my second amendment rights, my first amendment rights, my ability to do things that politicians SAY affect interstate commerce, or my ability to own property that politicians SAY could be put to a use more beneficial to the public, I don't like that kind of "complete deference" to politicians.