Re a question that has been asked many times on these 10th Amendment threads, to wit:
What power does Congress have to intervene in intrastate commerce?Now, it would appear to the layman, we mortals, the language contained within our Constitution is plain enough, the primary gist of which is that chains were to be placed on the feral government to keep it within limits acceptable to a people who had just won their freedom from a loopy monarchy in a faraway land. For the most part our Founders were keenly aware of the dangers of an unconstrained government and whether by divine intervention or just plain luck, produced the greatest document(s) for self governance ever known. It goes without saying many of the principles set out in these documents were and are based on Christian precepts. Which coincidentally gives our would-be masters no small degree of heartburn. </preamble>
That said, there have been a number of SCOTUS decisions whereby the black-robed gurus were able to discern nuances, subtleties, and other hidden treasures emanating from the documents the Founders were too shortsighted to put to parchment, another to wit:
Wickard vs. Filburn found that what was essentially a home garden, producing wheat for personal consumption, was within the reach of the interstate commerce clause. My mortal powers of discenment don't bring ME to that conclusion but then I'm not a black-robed guru endowed with the unique ability to perceive such emanations. The back story of FDR's intimidation and manipulation of the SCOTUS during this period is worth a look if you get the time.
Gonzales v. Raich took an unusual twist when one of our conservative, originalist champions, Antonin Scalie, apparently performed some mental gymnastics to arrive at a conclusion favorable to the feral government re medicinal marijuana that ran counter to a simple reading, by we mortals, of the Constitution. His rationale? The "necessary and proper" clause apparently offered up some heretofore unknown emanations.
The dissent, written by a true hero of originalists is absolutely classis; another to wit:
Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything -- and the Federal Government is no longer one of limited and enumerated powers.
Cheers,
The dissent, written by Justice Clarence Thomas a true hero and champion of originalists is absolutely classis; another to wit:
Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything -- and the Federal Government is no longer one of limited and enumerated powers.
Again, cheers,
Emanations indeed, ForGod's Sake!
As I understand the Court's thinking in this case, the fact that people grow wheat for strictly personal consumption has an effect on the interstate market prices of wheat because such growers, having secured their own wheat supply by the sweat of their own brow, are not market participants for wheat. Because they are not market participants, they have an effect on general (interstate) market prices. That's because, to the extent they grow their own wheat, they reduce market demand proportionately; and where there is reduced demand, reduced prices follow....
Evidently this was the logic behind the astonishingly weird holding in Wickard vs. Filburn, whose main basis was (to me) an extraordinarily bizarre reading of he Commerce Clause. Under this reading, there is no "private behavior" that could ever be beyond the reach of the Commerce Clause. Presumably, not even breathing — after all, we all "share" the same air....
Certainly the Framers never imagined, let alone intended, the Commerce Clause to be so omnipotent in its reach....
Great to hear from you, ForGod'sSake! Thank you so much for your excellent essay/post!