Welcome to the Constitutional Crisis

The Tenth Amendment Center ^ | April 25, 2010 | Brian Roberts

[Lando Lincoln]

Excellent article. Thanks for posting. I will try to comment in a bit...

[Cboldt]

I like the federalism point, but the author makes the common errors regarding Marbury v. Madison, and Wickard v. Filburn. I think Marbury was correctly decided, but that subsequent courts have impermissibly stretched what it says. I think Wickard was wrongly decided, but the damage there is also a result of subsequent stretching, not the decision itself.

Marbury v . Madison says that if a court is faced with two authorities, one law, and the other constitution, it must pick one as superior over the other. It found the constitution to be superior, and that the constitution said SCOTUS lacked jurisdiction to hear the case. The court concluded by doing NOTHING. No relief, not competent, under the constitution, to hear this sort of case.

Wickard v. Filburn is about whether or not the federal government can have a federal "management" if you will of planting and harvesting of various crops. There is no express authority in the constitution for this, or none was found. Farmer Filburn objected to having to pay an extra $100 or something, alot of money, but he didn't face jail, loss of home or anything. The Court undercut its own logic by noting that Filburn could have avoided the issue, by feeding the grain to his livestock before threshing the grain! Anyway, the decision itself is supposed to only reach the case, but subsequent Courts have used a snippet of the decision to justify firearm bans where the firearm is homemade and never leaves the house (Stewart), federal drug bans over state permission (Raich), and a host of other things.