The Commerce Clause, The Federal Judiciary, and Tyranny (or How Scalia Helped Screw America)

self | 10/15/09 | Huck

[jessduntno]

"I think you meant to say “reversible.” What is evident is that as recently as 2005, the Supreme Court affirmed the body of Commerce Clause jurisprudence, and was joined by the second most “originalist” justice on the bench. If you don’t comprehend what that means, then you don’t understand the judiciary."

Thanks...you made my point for me...you knew what I meant because it is true...and what does my comprehension have to do with this?

Honest answer, now;

True or false; this is not irreversible.

[Cboldt]

-- the more times an error is affirmed, the more unlikely it becomes that it will be reversed. --

I'd add to that that the Circuit Courts participate in this. The Circuits can misconstrue SCOTUS precedent, and SCOTUS can refuse cert if it likes the outcome. See chronic misconstruction of Presser, for example.

[Huck]

Raich will be used to render Montana/Utah's attempts to make in-state weapons and ammo out of reach of the feds to be nothing but grandstanding.

One would think so. It wouldn't surprise me, on the other hand, to see the a conservative majority twist around its pretzel logic to reach a desired political end. They went one way on Lopez, and another way on Raich, for what I believe to be political reasons. No matter the outcome, we will remain at the whim of an unaccountable, all-powerful judiciary limited only by its own imagination and creativity.

[Huck]

You’re confused, and playing word games. Is it reversible in theory? Yes. Is it reversible in reality, in practice? No. We’re stuck with it.

[Cboldt]

-- The Constitution created the hacks, the "power man", where there were none. There was no Federal judiciary, once upon a time. --

Yeah, but if it isn't the Courts subverting the limitations, it'll be the Congress and/or the Executive. One problem we have now is that all three branches are working in cahoots, to overstep the power and authority they were granted in the first place.

In other words, you can cut the judiciary out, but Congress and/or the executive will step into the power vacuum. At some point, the people either assert a credible threat of extreme violence, or the government will prevail because IT's credible threat of extreme violence is quite real.

[altsehastiin]

Raich was poorly decided in view of Morrison and Lopez, I’ll agree.

I disagree with your notion that Marbury v. Madison is wrong. You appear to argue that the Court should be incapable of invalidating any act passed by Congress. Depriving them of that power would disrupt our systems of checks and balances, a system that requires three roughly co-equal branches, which is worked more or less fine for 225 years.

[Rockingham]

(1) The protection of interstate commerce was a key reason for the creation of the Constitution. Under the Confederation, the separate states erected trade and tariff barriers that strangled commerce between the states. Without the Constitution and the Commerce Clause power to prevent that, the United States would have been vastly poorer and weaker.

(2) The differences between Scalia and Thomas on the Commerce Clause stem from larger philosophical differences in their understanding of originalism.

Scalia is unwilling to reverse case law decisions that have been settled for seventy five years or a century and incorporated into the fabric of American law and life. Thomas, a more stringent originalist than Scalia, is willing to reverse decisions that he sees as wrongly decided no matter how long settled those decision are.

Yet even when Scalia and Thomas are united, as they often are, they are but two votes on a nine member Court.

(3) In 19th Century America, Congress applied the Commerce Clause power more expansively so as to spur and protect the development of internal commerce and communications. Otherwise, every railroad, telegraph line, shipping company, and so on would have been exposed to the parochial and often predatory and corrupt enactments of state and local governments. This is squarely within the ambit of the original intent of the Commerce Clause power.

(4) The use of the Commerce Clause power as the constitutional basis for the New Deal federal welfare and regulatory state is another matter. A principled opposition to that expansion and an effort to reverse it are consistent with the philosophy of Scalia and Thomas.

(5) Raich is yet another matter because it deals with the prohibition of marijuana, something that virtually all states and the federal government agree on. Permitting one or a handful of individual states to legalize marijuana subverts that ban is logically contrary to the commerce clause power.

[Cboldt]

-- No matter the outcome, we will remain at the whim of an unaccountable, all-powerful judiciary limited only by its own imagination and creativity. --

The reason the Courts are unaccountable is because the legislature, which has the power of impeachment, prefers to use the Courts to implement unpopular law. Congress and the Courts are in cahoots, against the constitution. See Heller and upholding unconstitutional parts of the 1934 NFA.

That the people don't demand impeachment and removal of judicial hacks is just another example of how the people permit their government to run wild.

[Huck]

Thank God its not Bush's fault.

Raich featured the Bush Justice dept--Ashcroft and then Gonzalez, so they are partially at fault.

It's Scalia's fault!

Now you're just being absurd. First, I didn't say it was Scalia's fault. I didn't say he screwed America. I said he helped screw America. And he did. Facts are facts, even if you don't like them.

Conservatives are always at fault. Even when liberals do it.

Again, you're just being silly. Liberals are beyond hope. We don't look to them to further the cause of liberty. We don't look to them to reign in federal power. We don't look to them to aid us in keeping the fed gov within its intended limits. It's not even worth discussing.

But we DO look to conservative politicians, and conservative justices. We expect them to do it, and if they don't, we target them for unemployment.

If you cannot trust Scalia on an issue as important as this, then what hope is there? You have to appreciate what the commerce clause, as interpreted by the court, has done to the notion of limited federal power. And you have to appreciate how damaging it is to have that jurisprudence affirmed AGAIN. And yes, Scalia joined the liberals on this question. So cry your political tears all you want. The facts are what they are.

[Huck]

a system that requires three roughly co-equal branches, which is worked more or less fine for 225 years.

You can't be serious.

[altsehastiin]

On a more basic level, you complain about the Constitution making the Court superior to Congress in some cases, then complain about the Court NOT reining in Congress’ expansive view of its own powers under the commerce clause in Raich.

What do you want, exactly?

[altsehastiin]

“You can’t be serious.”

Ah, since we’ve moved on to pithy insults, any “analysis” of commerce clause jurisprudence that omits Lopez and Morrison isn’t worth the disk space it’s saved on.

[jessduntno]

“You’re confused, and playing word games. Is it reversible in theory? Yes. Is it reversible in reality, in practice? No.”

I’m confused? I asked true or false and got that?

Hahahahahha...thanks, made my day.

[JohnQ1]

Assuming that we will have meaningful elections in 2010, 2012, and beyond, might sufficient backlash against the health care “reform” open a window for a truly conservative administration? How then might the SCOTUS react? Do you see as much as a *remote chance* of “unscrewing” the nation.

An assumption of meaningful elections is a strong assumption. I’m sure Obama and the Dem congress are trying to arrange for their power to be permanent. But, I still hope and pray.

[Cboldt]

-- any "analysis" of commerce clause jurisprudence that omits Lopez and Morrison isn't worth the disk space it’s saved on. --

Considerable discussion takes place where the writer is under the belief that Lopez worked a reigning-in of Congressional power. It did not. Congress rewrote that portion of law (Gun Free School Zones Act), and there have been post-Lopez CONVICTIONS on the federal prohibition of guns in school zones.

[Huck]

The reason the Courts are unaccountable is because the legislature, which has the power of impeachment

That is not how the power of impeachment was understood at the time of ratification.

Antifederalist 78:

The only clause in the constitution which provides for the removal of the judges from offices, is that which declares, that "the president, vice- president, and all civil officers of the United States, shall be removed from office, on impeachment for, and conviction of treason, bribery, or other high crimes and misdemeanors." By this paragraph, civil officers, in which the judges are included, are removable only for crimes. Treason and bribery are named, and the rest are included under the general terms of high crimes and misdemeanors. Errors in judgment, or want of capacity to discharge the duties of the office, can never be supposed to be included in these words, high crimes and misdemeanors. A man may mistake a case in giving judgment, or manifest that he is incompetent to the discharge of the duties of a judge, and yet give no evidence of corruption or want of integrity. To support the charge, it will be necessary to give in evidence some facts that will show, that the judges committed the error from wicked and corrupt motives.

Antifederalist 80:

The real effect of this system of government, will therefore be brought home to the feelings of the people, through the medium of the judicial power. It is, moreover, of great importance, to examine with care the nature and extent of the judicial power, because those who are to be vested with it, are to be placed in a situation altogether unprecedented in a free country. They are to be rendered totally independent, both of the people and the legislature, both with respect to their offices and salaries. No errors they may commit can be corrected by any power above them, if any such power there be, nor can they be removed from office for making ever so many erroneous adjudications.

The only causes for which they can be displaced, is, conviction of treason, bribery, and high crimes and misdemeanors....

When the courts will have a precedent before them of a court which extended its jurisdiction in opposition to an act of the legislature, is it not to be expected that they will extend theirs, especially when there is nothing in the constitution expressly against it? And they are authorised to construe its meaning, and are not under any control.

This power in the judicial, will enable them to mould the government, into any shape they please.

If you stretch the causes of impeachment to include judicial decisions with which you disagree, then impeachment becomes a political farce.

[kralcmot]

thank you Huck

you dashed this off?

why can’t we have you somewhere in government?

or, are you.....maybe you better not say.

[Huck]

Well, speaking of pithy, I tried to hit a few cases along the way. I couldn’t catalog the entire history. For the purposes of this essay, I had to get Wickard in there. And Raich.

[Huck]

I honestly did. I set my alarm so I could get up early and work on it. And no, I don’t work in the gubmint, though, through taxation, I certainly work FOR the gubmint!

[Cboldt]

-- If you stretch the causes of impeachment to include judicial decisions with which you disagree, then impeachment becomes a political farce. --

That depends on the basis for the disagreement.

Plus, I don't see an impeachment farce as any worse than a constitutional farce, where, e.g., every federal law is withing the limited powers granted by the constitution because everything has some relation to commerce.

If a judge make a pronouncement of law based on pure fiction (e.g., "Miller was convicted, we upheld the law"), that's a farce too. If all three branches o along with it, the people don't have a remedy in the constitution.

I appreciate that Congress does not want to impeach, because then IT would be accountable. Plus, as I noted above, Congress LIKES for the Courts to give force to unconstitutional Congressional enactments. They like being empowered, even if the empowerment is illegitimate under the constitution.