[robertpaulsen]

"Sure, if the states were very stupid

States acting stupid was the reason for the creation of the Commerce Clause! Geez Louise.

So, according to you, states should be free to set their own flight rules and use the spectrum however they wish, despite the fact that the federal government already regulates this activity. And this would promote commerce, right?

"Just because Congress says something does not make it true."

Ah. Who, then, shall be the judge of what is true? The court? Fine, the court said it was true.

"Why is Thomas wrong?"

Why? Did you read Scalia's opinion (whose opinion was in the majority)? That's why.

[publiusF27]

I did indeed read Scalia's opinion. It was in line with the lefty majority opinion, and I'm not sure why he wrote separately.

He said that we've been doing it like this, so we're going to keep doing it like this. Stare decisis.

Thomas said we should revisit the substantial effects test and the aggregation principle.

Scalia's decision was based on Wickard vs Filburn. Thomas' was based on things like Federalist 45, as noted in the earlier excerpt.

Scalia didn't look that far back. New Deal judges said that if some private action affects interstate commerce in the aggregate, Congress can regulate it. Scalia said stare decisis.

Citing Scalia doesn't answer my question because Scalia's ruling has nothing to do with Madison's intent. Thomas' dissent does. Unless I'm wrong. Am I wrong? If so, why?

[publiusF27]

So, according to you, states should be free to set their own flight rules and use the spectrum however they wish, despite the fact that the federal government already regulates this activity. And this would promote commerce, right?

Flight rules are derived from previous rules on the ocean, and navigation rules, even at the time of the founding, were widely recognized as a federal responsibility. You can't navigate without common rules. You'll crash into each other. No, splitting up into 50 airspace systems would not promote commerce, and I never suggested it would. I suggested it was a stupid reducto ad absurdium that Madison would have dismissed as a bad idea, and it is.

But just because we need common rules to keep planes apart in the air does not mean we need common rules about exactly how certain drugs may be used across the land.

[steve-b]

Who, then, shall be the judge of what is true? The court?

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?