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FR Amendment Proposal: Limit Congress' Power Under the Commerce Clause
mukraker

Posted on 07/15/2010 10:16:49 AM PDT by mukraker

We have a LOT of smart people at FR. I'd like to tap some of that brainpower, and come up with language to be included in a new Constitutional Amendment.

We've seen how all three branches of our government have perverted the Commerce Clause of our Constitution. (Article 1, Section 8) That clause reads "Congress shall have the power ... To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;"

The list of abuses of this clause is too long to enumerate here. Rather, I'd like to enlist your help to limit that power.

"The Power of Congress to regulate commerce shall be limited."

OK, there's the start. Now, how shall we limit that power? (Remember, keep it concise.)


TOPICS: Chit/Chat; Politics
KEYWORDS: constitution
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1 posted on 07/15/2010 10:16:51 AM PDT by mukraker
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To: mukraker

That power was already limited by the Tenth Amendment.
The fact that congress has seen fit to ignore the plain language of the ICC and the Tenth is no reason to give them another amendment to ignore.

Unless we take back our federal courts, we have no chance of guaranteeing that our Constitution is respected, whether we amend it or not.


2 posted on 07/15/2010 10:24:46 AM PDT by SJSAMPLE
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To: mukraker

Aside from the 10th amendment, the Financial reform bill in the Senate now, includes the Consumer Financial Protection bill...the entire economic, financial monitoring, control, data collection, and intended manipulation of consumer behavior of ALL citizens has been turned over COMPLETELY to the Fed Reserve via the new Bureau to be established within the Fed Reserve. Think that will not have an impact on commerce? Congress has just put the financial lives of ALL Americans in a black bag and handed it over for the Fed REserve to play with in a globalized fashion. Think about it.


3 posted on 07/15/2010 10:30:40 AM PDT by givemELL (Does Taiwan eet the Criteria to Qualify as an "Overseas Territory of the United States"? by Richar)
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To: mukraker

You want to create an amendment to take away a power that was never given to the government in the first place? I really don’t think that is going to work. There are much more worthy causes for amendments.


4 posted on 07/15/2010 10:37:47 AM PDT by Durus (The People have abdicated our duties and anxiously hopes for just two things, "Bread and Circuses")
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To: mukraker

The power to regulate interstate commerce shall be limited to, and with objective of, establishing and maintaining the channels and carriers of interstate commerce, and the elimination and prevention of barriers or impediments to interstate commerce by the States.


5 posted on 07/15/2010 10:41:11 AM PDT by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
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To: mukraker

the limit is in the clause itself ... “amoung the states” iow between states not within states and, most importantly not between businesses and people in and/or between the states. All of the actors specifically mentioned are soveriegn entities - and it is fitting and proper that a national governemnt was established to regulate trade between such entities. Any other attempts to bring meaning to the clause are therefore facetious.

IOW - the clause was rather quickly ignored even though its meaning and intent is clear. Re-writing it will not make it any harder to ignore. Especially when even so-called conservative Justices can declare, with a straight face(!), that just about any item produced anywhere is just “one step removed” from interstate commerce and can thus be regulated by the imperial federal government.

So, good luck on finding an iron tight wording that some scummy lawyer type can’t ooze through ....


6 posted on 07/15/2010 10:49:51 AM PDT by An.American.Expatriate (Here's my strategy on the War against Terrorism: We win, they lose. - with apologies to R.R.)
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To: tacticalogic
The power to regulate interstate commerce shall be limited to, and with objective of, establishing and maintaining the channels and carriers of interstate commerce, and the elimination and prevention of barriers or impediments to interstate commerce by the States.

Why should the congress be given the power to dictate whether a specific state can prohibit the entry of goods into the state for the purpose of selling said goods in that state (i.e. not just passing through)?

7 posted on 07/15/2010 10:55:28 AM PDT by An.American.Expatriate (Here's my strategy on the War against Terrorism: We win, they lose. - with apologies to R.R.)
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To: mukraker
3 words and 2 commas needed:

We've seen how all three branches of our government have perverted the Commerce Clause of our Constitution. (Article 1, Section 8) That clause reads "Congress shall have the power ... To regulate commerce with foreign nations, and among, but not within, the several states, and with the Indian tribes;"

8 posted on 07/15/2010 11:18:56 AM PDT by frithguild (I gave to Joe Wilson the day after, to Scott Brown seven days before and next to JD Hayworth.)
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To: An.American.Expatriate
Why should the congress be given the power to dictate whether a specific state can prohibit the entry of goods into the state for the purpose of selling said goods in that state (i.e. not just passing through)?

That is within the original intent of the commerce power - to prevent one state from setting up trade barriers that essentially sought to give favored industries within their own state an unfair advantage in local market. One state would try to keep a particular product or commodity produced in another state out to protect their own producers, and then the other state would retaliate with their own restrctions on goods from the first state and it would turn into full-blown trade wars. It was recognized early on that this was destructive to industry and commerce and needed to be stopped. The only entity that would have the authority to do that would be the national government, and it was intended that they would have that power when the grant of power was made. The historical record is well established on this point.

9 posted on 07/15/2010 11:31:37 AM PDT by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
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To: An.American.Expatriate

At the time the original Constitution was ratified, “commerce” consisted of selling, buying, and bartering, as well as transporting for these purposes. See 1 S. Johnson, A Dictionary*586 of the English Language 361 (4th ed. 1773) (defining commerce as “Intercour[s]e; exchange of one thing for another; interchange of any thing; trade; traffick”); N. Bailey, An Universal Etymological English Dictionary (26th ed. 1789) (“trade or traffic”); T. Sheridan, A Complete Dictionary of the English Language (6th ed. 1796) (“Exchange of one thing for another; trade, traffick”). This understanding finds support in the etymology of the word, which literally means “with merchandise.” See 3 Oxford English Dictionary 552 (2d ed. 1989) (com-“with”; merci-“merchandise”). In fact, when Federalists and Anti-Federalists discussed the Commerce Clause during the ratification period, they often used trade (in its selling/bartering sense) and commerce interchangeably. See The Federalist No. 4, p. 22 (J. Jay) (asserting that countries will cultivate our friendship when our “trade” is prudently regulated by Federal Government); FN1 id., No. 7, at 39-40 (A. Hamilton) (discussing “competitions of commerce” between States resulting from state “regulations of trade”); id., No. 40, at 262 (J. Madison) (asserting that it was an “acknowledged object of the Convention ... that the regulation of trade should be submitted to the general government”); Lee, Letters of a Federal Farmer No. 5, in Pamphlets on the Constitution of the United States 319 (P. Ford ed. 1888); Smith, An Address to the People of the State of New York, in id., at 107.

FN1. All references to The Federalist are to the Jacob E. Cooke 1961 edition.
As one would expect, the term “commerce” was used in contradistinction to productive activities such as manufacturing and agriculture. Alexander Hamilton, for example, repeatedly treated commerce, agriculture, and manufacturing as three separate endeavors. See, e.g., The Federalist No. 36, at 224 (referring to “agriculture, commerce, manufactures”); id., No. 21, at 133 (distinguishing commerce, arts, and industry); id., No. 12, at 74 (asserting that commerce and agriculture have shared interests). The same distinctions *587 were made in the state ratification conventions. See, e.g., 2 Debates in the Several State Conventions on the Adoption of the Federal Constitution 57 (J. Elliot ed. 1836) (hereinafter Debates) (T. Dawes at Massachusetts convention); id., at 336 (M. Smith at New York convention).

Moreover, interjecting a modern sense of commerce into the Constitution generates significant textual and structural problems. For example, one cannot replace “commerce” with a different type of enterprise, such as manufacturing. When a manufacturer produces a car, assembly cannot take place “with a foreign nation” or “with the Indian Tribes.” Parts may come from different States or other nations and hence may have been in the flow of commerce at one time, but manufacturing takes place at a discrete site. Agriculture and manufacturing involve the production of goods; commerce encompasses traffic in such articles.

The Port Preference Clause also suggests that the term “commerce” denoted sale and/or transport rather than business generally. According to that Clause, “[n]o Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another.” U.S. Const., Art. I, § 9, cl. 6. Although it is possible to **1644 conceive of regulations of manufacturing or farming that prefer one port over another, the more natural reading is that the Clause prohibits Congress from using its commerce power to channel commerce through certain favored ports.

The Constitution not only uses the word “commerce” in a narrower sense than our case law might suggest, it also does not support the proposition that Congress has authority over all activities that “substantially affect” interstate commerce. The Commerce Clause FN2 does not state that Congress may *588 “regulate matters that substantially affect commerce with foreign Nations, and among the several States, and with the Indian Tribes.” In contrast, the Constitution itself temporarily prohibited amendments that would “affect” Congress’ lack of authority to prohibit or restrict the slave trade or to enact unproportioned direct taxation. Art. V. Clearly, the Framers could have drafted a Constitution that contained a “substantially affects interstate commerce” Clause had that been their objective.

FN2. Even to speak of “the Commerce Clause” perhaps obscures the actual scope of that Clause. As an original matter, Congress did not have authority to regulate all commerce; Congress could only “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” U.S. Const., Art. I, § 8, cl. 3. Although the precise line between interstate/foreign commerce and purely intrastate commerce was hard to draw, the Court attempted to adhere to such a line for the first 150 years of our Nation. See infra, at 1646-1649.
In addition to its powers under the Commerce Clause, Congress has the authority to enact such laws as are “necessary and proper” to carry into execution its power to regulate commerce among the several States. U.S. Const., Art. I, § 8, cl. 18. But on this Court’s understanding of congressional power under these two Clauses, many of Congress’ other enumerated powers under Art. I, § 8, are wholly superfluous. After all, if Congress may regulate all matters that substantially affect commerce, there is no need for the Constitution to specify that Congress may enact bankruptcy laws, cl. 4, or coin money and fix the standard of weights and measures, cl. 5, or punish counterfeiters of United States coin and securities, cl. 6. Likewise, Congress would not need the separate authority to establish post offices and post roads, cl. 7, or to grant patents and copyrights, cl. 8, or to “punish Piracies and Felonies committed on the high Seas,” cl. 10. It might not even need the power to raise and support an Army and Navy, cls. 12 and 13, for fewer people would engage in commercial shipping if they thought that a foreign power could expropriate their property with ease. Indeed, if Congress could regulate matters that substantially affect interstate commerce, there would have been no need to specify*589 that Congress can regulate international trade and commerce with the Indians. As the Framers surely understood, these other branches of trade substantially affect interstate commerce.

Put simply, much if not all of Art. I, § 8 (including portions of the Commerce Clause itself), would be surplusage if Congress had been given authority over matters that substantially affect interstate commerce. An interpretation of cl. 3 that makes the rest of § 8 superfluous simply cannot be correct. Yet this Court’s Commerce Clause jurisprudence has endorsed just such an interpretation: The power we have accorded Congress has swallowed Art. I, § 8.FN3

FN3. There are other powers granted to Congress outside of Art. I, § 8, that may become wholly superfluous as well due to our distortion of the Commerce Clause. For instance, Congress has plenary power over the District of Columbia and the territories. See U.S. Const., Art. I, § 8, cl. 17, and Art. IV, § 3, cl. 2. The grant of comprehensive legislative power over certain areas of the Nation, when read in conjunction with the rest of the Constitution, further confirms that Congress was not ceded plenary authority over the whole Nation.
Indeed, if a “substantial effects” test can be appended to the Commerce Clause, why not to every other power of the Federal Government? There is no reason for singling out the Commerce Clause for special treatment. Accordingly, Congress could regulate all matters that “substantially affect” the Army and Navy, bankruptcies, tax collection, expenditures, and so on. In that case, the Clauses of § 8 all mutually overlap, something we can assume the Founding Fathers never intended.

**1645 Our construction of the scope of congressional authority has the additional problem of coming close to turning the Tenth Amendment on its head. Our case law could be read to reserve to the United States all powers not expressly prohibited by the Constitution. Taken together, these fundamental textual problems should, at the very least, convince us that the “substantial effects” test should be reexamined.

U.S. v. Lopez 514 U.S. 549, 585-589, 115 S.Ct. 1624, 1643 - 1645 (U.S.Tex.,1995)


10 posted on 07/15/2010 11:36:32 AM PDT by frithguild (I gave to Joe Wilson the day after, to Scott Brown seven days before and next to JD Hayworth.)
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To: tacticalogic
That is within the original intent of the commerce power - to prevent one state from setting up trade barriers that essentially sought to give favored industries within their own state an unfair advantage in local market.

wrong! The states we free to regulate what was sold within the state - what they were prohibited from doing was to lay a tax or levy on the imports from other states (thus making in state goods cheaper) and/or to deny free passage of goods through the state - this was especially important since otherwise the coastal states could effectivley strangle land bound ones ...

11 posted on 07/15/2010 12:16:18 PM PDT by An.American.Expatriate (Here's my strategy on the War against Terrorism: We win, they lose. - with apologies to R.R.)
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To: frithguild

sorry - wall of legalize that I can not get through.

Can you give me the “Case Decision for Dummies” version?


12 posted on 07/15/2010 12:20:55 PM PDT by An.American.Expatriate (Here's my strategy on the War against Terrorism: We win, they lose. - with apologies to R.R.)
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To: An.American.Expatriate

This is a particularly brilliant dissenting opinion penned by Justice Thomas. I should work on a plain English version of it.


13 posted on 07/15/2010 12:36:27 PM PDT by frithguild (I gave to Joe Wilson the day after, to Scott Brown seven days before and next to JD Hayworth.)
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To: frithguild

okay - its late and my eyes are tired - so forgive my not delving in ...


14 posted on 07/15/2010 12:39:54 PM PDT by An.American.Expatriate (Here's my strategy on the War against Terrorism: We win, they lose. - with apologies to R.R.)
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To: An.American.Expatriate

The Supreme Court created a test to determine when the Commerce clause applies - Congress can act when the subject of the legislation involves “a substantial affect on commerce.” Once the Court applied this test in Wickert and the Slaughterhouse cases, the only thing the Court has refused to allow is a fderal police power. Thomas argues that if this is the case, why should we have all of these other ennumerated powers, when you have an all encompassing power to regulate anything that has a substantial affect on commerce? Commerce power as the Court has fashioned it has swallowed the concept of enumerated powers.


15 posted on 07/15/2010 12:48:19 PM PDT by frithguild (I gave to Joe Wilson the day after, to Scott Brown seven days before and next to JD Hayworth.)
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To: An.American.Expatriate

The citation to the case is at the bottom of the post. If you google the citation, you can get to the text of the opinion somewhere. State v. Lopez gives a great summary of the history of commerce power.

Only Thomas understands commerce power on the Court as it is constituted.


16 posted on 07/15/2010 12:51:37 PM PDT by frithguild (I gave to Joe Wilson the day after, to Scott Brown seven days before and next to JD Hayworth.)
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To: An.American.Expatriate
wrong! The states we free to regulate what was sold within the state - what they were prohibited from doing was to lay a tax or levy on the imports from other states (thus making in state goods cheaper) and/or to deny free passage of goods through the state - this was especially important since otherwise the coastal states could effectivley strangle land bound ones ...

The prohibition on taxes and levys would also imply a prhibition on an outright ban. It makes no sense to say that they couldn't levy a tax on say, corn from Iowa but they could simply say that no corn from Iowa could be brought into the state. That's not the same as imposing a general ban on the sale of something within the state that applied equally to both local and interstate sources.

17 posted on 07/15/2010 12:52:24 PM PDT by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
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To: mukraker

From this weblog post: http://splendorquest.com/?p=41

But here, in a very short summary, is what needs to be done, if the head of steam built up by the tea party movement is not to be wasted. The text within the quotation marks is proposed amendatory language, followed by a discussion of the objective to be achieved.

1. “The words ‘general welfare’ appearing in the United States Constitution or its Amendments do not create any powers of the legislative, executive or judicial branches of the government of the United States. Any legislation authorized by the words ‘general welfare’ is repealed.” This gets rid of one of the most pernicious pieces of federal elasticity. The pretext for forcing people to buy health insurance under Obamacare — now dead, one may hope — was to have been the general welfare clause.

2. “Article 1, Section 8, Clause 3 of the United States Constitution is stricken in its entirety. Any legislation authorized by that clause is repealed.” This does away with the power of the federal government to regulate commerce. The interstate commerce clause is second only to the general welfare clause as a means of enlarging the power of the national government.

3. “Amendement 16 to the United States Constitution is stricken in its entirety. Any legislation authorized by that Amendment is repealed.” Goodbye federal income tax. The federal government will have to return to taxation by capitation — the head tax.

4. “Amendement 17 to the United States Constitution is stricken in its entirety. Any legislation authorized by that Amendment is repealed.” This language puts the Senate back under the control of the states. This was a vital check on federal power. Its absence is what has permitted the most abusive usurpations of power by the federal leviathan.

5. “No governmental entity in the United States nor any office-holder or employee of any governmental entity in the United States is immune from criminal prosecution or civil litigation.” This eliminates the legal doctrine called sovereign immunity. The argument is that the people ought not be able to sue themselves. But when government officials commit crimes against citizens, they should be held fully accountable to the law. Americans fought and died so that no sovereign could tread on the rights of the people.

Taken as a whole, this language will eliminate much of the federal government. The power to defend the nation will be retained, but most of the alphabet soup agencies will be gone, as will be most of the taxes and regulations strangling our economy. The states will have to fill some gaps, but I think we will all be quietly amazed at how little value the national government brings to civic life — and how relieved we all will be to be out from under its enormous weight.


18 posted on 07/15/2010 1:25:17 PM PDT by Greg Swann
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To: tacticalogic

Actually it does make sense and is done even today.

Banks, physicians, laywers and many other trades must be state approved to operate within the state and, even if I have the approval of a different state, that (alone) does not allow me to engange in trade in the other state!

The states have always had the soveriegn right to dictate commerce laws within the state - but if they DO allow other businesses from other states to engage in commerce in the state; all actors must be treated as equals - that is what the regulation of interstate commerce is all about. Indeed, without the clause, there would be anarchy in interstate trade.

This is further evidenced by the jurisdiction clauses for the Supreme Court “... to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States ...” as most “Controversies” are of contractual or trade nature and, if the federal government did NOT have the power to regulate, the court could have no jurisdiction!

The important thing to remember is that the states are sovereigns and the “United States” was a compact of the several states to protect and foster thier mutual interests.


19 posted on 07/15/2010 1:25:23 PM PDT by An.American.Expatriate (Here's my strategy on the War against Terrorism: We win, they lose. - with apologies to R.R.)
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To: An.American.Expatriate
The states have always had the soveriegn right to dictate commerce laws within the state - but if they DO allow other businesses from other states to engage in commerce in the state; all actors must be treated as equals - that is what the regulation of interstate commerce is all about. Indeed, without the clause, there would be anarchy in interstate trade.

Can a state disallow interstate commerce, but allow intrastate commerce even though the out of state businesses meet all the same requirements as the local businesses, except for being out of state? IOW, could a state simply deny it's markets to businesses in other states in order to create a captive market for it's own industries?

20 posted on 07/15/2010 1:46:28 PM PDT by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
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To: Greg Swann

You can not strike the commerce clause because it is necessary for the regulation of affairs between foreign nations, between the states and with the indian tribes - if the federal government does not have the power to regulate here, internation trade agreements must be made between the individual states and foreign governments - further each state would be required to make a trade agreement with every other state ....

Sovereign Immunity also protects office holders from frivolous lawsuits which would keep them from thier duties. Each branch has methods for revoking this immunity (not done often, i admit!!) - but they are there.

“General Welfare” - there aren’t a heck of a lot of laws “authorized” by this clause, so I doubt this would have an impact ....


21 posted on 07/15/2010 1:50:05 PM PDT by An.American.Expatriate (Here's my strategy on the War against Terrorism: We win, they lose. - with apologies to R.R.)
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To: tacticalogic
Can a state disallow interstate commerce, but allow intrastate commerce even though the out of state businesses meet all the same requirements as the local businesses, except for being out of state? IOW, could a state simply deny it's markets to businesses in other states in order to create a captive market for it's own industries?

Theoretically, yes. Again, it is jurisdiction. Which laws apply if a conflict arises between an out of state business and an in state actor? Look at banks - physicians, bonded tradepeople, etc ... such participants must be licensed in most states in orer to engage in commere intrastate. Some get permits to be able to engange in commerce in other states - but EACH state has the right to dictate the terms. However, the terms must always be the same, whether the particpant is in state or out of state.

22 posted on 07/15/2010 2:13:04 PM PDT by An.American.Expatriate (Here's my strategy on the War against Terrorism: We win, they lose. - with apologies to R.R.)
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To: An.American.Expatriate
Theoretically, yes. Again, it is jurisdiction. Which laws apply if a conflict arises between an out of state business and an in state actor? Look at banks - physicians, bonded tradepeople, etc ... such participants must be licensed in most states in orer to engage in commere intrastate. Some get permits to be able to engange in commerce in other states - but EACH state has the right to dictate the terms. However, the terms must always be the same, whether the particpant is in state or out of state.

There are licensing requirements for banks, lawyers, physicians, etc. but as far as I know, being licensed to practice in a state doesn't require that you reside there.

Would it be a legitimate exercise of the commerce power for the federal governemnt to prevent the state of California from saying to all those businesses that are leaving "If you move your factories or your corporate headquarters out of the state of California, you cannot sell your goods to the citizends of California. If you want to do business here, you have to move your headquarters here, and build your factories here."

23 posted on 07/15/2010 2:23:59 PM PDT by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
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To: tacticalogic

If I understand you correctly - no. The federal government has no right to dictate to a state who may do business in the state.


24 posted on 07/16/2010 1:00:19 AM PDT by An.American.Expatriate (Here's my strategy on the War against Terrorism: We win, they lose. - with apologies to R.R.)
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To: An.American.Expatriate
If I understand you correctly - no. The federal government has no right to dictate to a state who may do business in the state.

I think in that case they would. If a state could impose a requirement that a person or company must reside in the state in order to do business there and coerce them to move their operations in order to have access to the markets, other states would follow suit and the result would be to inhibit interstate commerce in general. The objective of giving the federal government the power to regulate interstate commerce was to help foster and facilitate interstate commerce. It seems well within the objectives of the original intent of the grant of power.

25 posted on 07/16/2010 3:50:55 AM PDT by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
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To: tacticalogic

Then let me ask - does a State have an obligation to ensure that it’s citizens are protected?

For an entity to be regulated by a state - it must be subject to it’s jurisdiction - i.e. must have a “domicile” in the state and/or have received a license to perform an act of commerce (which can be revoked). Without either of these, a state is powerless to enforce it’s laws. Further, questions of taxation arise by such constellations. IOW - residence requirements are likely the rule!

Examples of states having and using such “protectionist” policies can also be seen with tobacco and alcohol products (firearms as well).

IMHO the commerce clause was designed to give the federal government the power (and obligation) to *facilitae” commerce between the several states - i.e. to provide for common methods and standards as well as procedures for complaint resolution - as well as with foreign entities. AFAIK - the federal government can not compell a state to accept foreign companies within thier territory nor compell them to do business with said entities.

Since both foreign and domestic out of state entities are governed by the exact same 16 word clause - any thing that is true for ONE of the entities is true for all. IOW - if your contention is true - the federal government could FORCE a state to accept commerce from a foreign entity without any recourse for itself or it’s citizens in the case of either non-payment of taxes or delivery of defective products.

So, I humbly disagree that the Federal Government was given a power by the states and the people which renders null and void any measure of sovereignty that they enjoyed in internal matters through these 16 words alone - because that is basically what your argument comes down to.

Further, the other side of your coin also then allows the federal government to dictate what YOU as a private person may grow in your garden for your own private use (I know that the USSC has repeatedly said this is okay - I disagree for the reasons stated).


26 posted on 07/16/2010 5:00:47 AM PDT by An.American.Expatriate (Here's my strategy on the War against Terrorism: We win, they lose. - with apologies to R.R.)
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To: An.American.Expatriate
IMHO the commerce clause was designed to give the federal government the power (and obligation) to *facilitae” commerce between the several states - i.e. to provide for common methods and standards as well as procedures for complaint resolution - as well as with foreign entities. AFAIK - the federal government can not compell a state to accept foreign companies within thier territory nor compell them to do business with said entities.

I am not talking about the federal government compelling a state to do accept a foreign company withing their territory. I'm talking about a state requiring that company to move their operation there in order to do business. If it is unfair to impose a tax on interstate goods, isn't it equally unfair to impose an embargo? It's still imposing a tax, except that instead of taxing the goods coming across the state line, it's forcing the company to be subject to whatever taxes the state imposes on it's businesses by forcing them to move there in order to do business.

27 posted on 07/16/2010 5:41:31 AM PDT by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
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To: tacticalogic

Which is exactly what happens each and every day!


28 posted on 07/16/2010 8:00:16 AM PDT by An.American.Expatriate (Here's my strategy on the War against Terrorism: We win, they lose. - with apologies to R.R.)
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To: An.American.Expatriate
Which is exactly what happens each and every day!

Give me an example of that happening.

29 posted on 07/16/2010 8:08:27 AM PDT by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
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To: An.American.Expatriate

> You can not strike the commerce clause because it is necessary for the regulation of affairs between foreign nations, between the states and with the indian tribes -

None of those things are necessary.

> if the federal government does not have the power to regulate here, internation trade agreements must be made between the individual states and foreign governments - further each state would be required to make a trade agreement with every other state ....

First: Dang.

Second: Get rid of all that at the sate level, too. Are you for freedom or just for a more-efficient slavery?

> Sovereign Immunity also protects office holders from frivolous lawsuits which would keep them from thier duties.

Meaning inflicting a more-efficient slavery on innocent Americans? If we cut government down to nothing, there will be nothing to sue over — not that I care if would-be more-efficient-slavers are tied up in court.

> “General Welfare” - there aren’t a heck of a lot of laws “authorized” by this clause

Just the welfare state.

Conservatives are very poor stewards of human liberty. You’re either for freedom or you’re not. Rationalizing your own enslavement is a poor strategy — as the 1789 constitution illustrates perfectly.

Getting rid of the commerce clause cuts away at least half of the federal government. I’d call that a good start.


30 posted on 07/16/2010 8:29:04 AM PDT by Greg Swann
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To: Greg Swann
None of those things are necessary.

??? Internation trade does need need regulation? (or) each state should do this for itself?? Second: Get rid of all that at the sate level, too. Are you for freedom or just for a more-efficient slavery?

ah - I see - you are an anarchist! No rules!

The debate here is not slavery vs. freedom - instead it is how much of my freedom am I willing to give to whom to best protect my interests? "We the people", individually can not provide the same type of protection as we can collectively -> THAT and only that was the one real argument for the constitution in the first place!

Lastly, if not even that state is allowed to regulate commerce - who then sets and enforces standards? YOU? What is your recourse? "Get the guns Ma!"? Getting rid of the commerce clause cuts away at least half of the federal government. I’d call that a good start.

How? Since the Federal Government refuses to be limited by the plain wording of the constitution - how can you claim that simply by striking 16 words from it, suddenly the Federal Government would shrink? They would either, find another way to justify thier doings, or simply do it. IIRC the requirment to state which "power" they are envoking to pass a law is anyway both new and a law, which, as we have seen repeatedly, they simply refuse to follow.

As to immunity - if you think it is right and good that federal officials be denied some amount of immunity from prosecution while in office - what exactly would prevent the party in power from lodging criminal complaints against the opposition for the sole purpose of keeping them OUT of government office?

No, sorry - I don't think we really want to be the Bananna Republic of America!

31 posted on 07/16/2010 9:03:44 AM PDT by An.American.Expatriate (Here's my strategy on the War against Terrorism: We win, they lose. - with apologies to R.R.)
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To: tacticalogic

Banks.
Bonded Tradesmen.
Auto Dealerships.
Doctors.
Insurance.
Construction.
...


32 posted on 07/16/2010 9:06:34 AM PDT by An.American.Expatriate (Here's my strategy on the War against Terrorism: We win, they lose. - with apologies to R.R.)
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To: An.American.Expatriate
A bank with a corporate headquarters in one state can be chartered to operate in another state.

A Tradesman can be Bonded in one state, and have a residence and pay income taxes in another state.

An auto dealership can be owned by a company who's coporate headquarters is in another state, and sell cars manufactured in another state and shipped in.

A doctor can be licensed to practice medicine in one or more states, but maintain his residence and pay taxes to another state.

An Insurance company can be licensed to sell in one state, but have their corporate office in, and pay taxes to another state.

A construction company based out of, and paying taxes in one state can be licensed to do construction work in another state.

33 posted on 07/16/2010 9:20:53 AM PDT by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
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To: tacticalogic

and in each case - the other state “allowed” the actor to engane in commerce - and in some cases (dealerships) the actual entity performing the commerce is IN state and subject to state taxes and laws. In most other cases, a prerequisite of have a license is that some sort of domicile is created so that in state actions can be taxed - even if this is nothing other than a post box! A state can not tax and/or regulate objects/actions NOT under thier jurisdiction and a state MUST have the power to compell out of state actors to comply with in state laws - otherwise, YOU the consumer and totally UNPROTECTED.


34 posted on 07/16/2010 9:29:33 AM PDT by An.American.Expatriate (Here's my strategy on the War against Terrorism: We win, they lose. - with apologies to R.R.)
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To: An.American.Expatriate
and in each case - the other state “allowed” the actor to engane in commerce -

And you submit that each state has the authority to disallow it, even though doing it would have a crippling effect on the interstate commerce of the nation, and that there is nothing in the original intent of the Commerce Clause that would give the federal government the authrity to intervene?

35 posted on 07/16/2010 9:35:44 AM PDT by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
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To: An.American.Expatriate
> how much of my freedom am I willing to give You can enslave yourself all you want. When you propose to enslave anyone else, you are the enemy. The commerce clause exist to enshrine Rotarian Socialism -- at which it performs perfectly. If you want freedom, you must remove the means by which you are enslaved. Expressing your belligerence toward me advances your cause not at all.
36 posted on 07/16/2010 10:08:07 AM PDT by Greg Swann
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To: tacticalogic

In most cases yes.

here is a hypothectical:

California has extremely harsh environment laws and requires several thousand dollars worth of extras on cars sold in the state.

Nevada does not (hypothetically!!!).

A dealers in CA might decide - to heck with this - we can sell the cars to the ppl of CA from Nevada without the extras - add a nice amrgin anyway and both make a profit AND let the consumer save money.

CA can (and likely has) prohibit the import of cars from out of state by it’s citizens as the sole purpose of the purchase was to avoid the laws of the State. It is likely there would be some exemptions (ppl just moving to the state) - at least one year ownership before import, etc. But CA has both the right AND the responsibility to enact such laws.

Now - where exactly does Federal Government action kick in? IMHO - the FedGov must simply ensure that an “even playing field” exists - i.e. if any out of state actor meets all the requirements that an in state actor must meet and is willing to subject themselves to the jurisdiction of the state for actions performed “in the state” - then the state must generally allow the commerce. Further, any prohibitions must apply equally to all.

Lastly - the “final arbiter” is of course, the people. If a state were so insane as to prohibit the import of cheap, but otherwise good tomatoes from a nieghboring state - simply to protect some vested interest and the people themselves are forced to pay monopolistic prices - it would likely not be long before that government were ridden out on the rail.


37 posted on 07/16/2010 10:20:35 AM PDT by An.American.Expatriate (Here's my strategy on the War against Terrorism: We win, they lose. - with apologies to R.R.)
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To: Greg Swann
Oh, this is getting fun!

Do you even understand what the purpose of the constitution was? - Oh, right - so the Illuminati can take over the world with thier lizard people.

If you want freedom, you must remove the means by which you are enslaved.

Workers of the world Unite!

So, tell me - who is in charge in your Utopian Society? What powers do they wield? Do they ride Unicorns?

Expressing your belligerence toward me advances your cause not at all.

Expressing your tomfoolery as something to be taken seriously advances my level of astonishment quite a bit!

Now, would you like to debate this like an adult, as has been done in this thread til now - or do you insist upon inflamatory speach?

38 posted on 07/16/2010 10:32:16 AM PDT by An.American.Expatriate (Here's my strategy on the War against Terrorism: We win, they lose. - with apologies to R.R.)
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To: An.American.Expatriate

> Do you even understand what the purpose of the constitution was?

The purpose of the 1789 constitution was to undermine the Revolutionary War. Mercantilists wanted a government powerful enough to deny cheap European-made manufactured goods to the American people — the actual original purpose of the commerce clause — so they sold out on slavery and on the expropriation of the frontier to forge a rent-seeking coalition large enough to undo the Revolution. Thus did we set America on the course to Rotarian Socialism, the mutual-corruption kleptocratic society we have today.

Inlookers: Freedom means freedom FROM GOVERNMENT. Nothing else. If you want to be free, you have to eliminate as much government as you can — much as the enemies of freedom have enlarged the role of government in every way they could.

Getting in bed with temporizers like the Republicans is how your freedom was sold out from under you in the first place. “An.American.Expatriate” is doing you a favor by showing you how they’ll do it to you again — not that the Republicans will come anywhere close to “reforming” the commerce clause.

If you don’t want 2010 to be a repeat of 1994, your political philosophy should consist of one word: Cut.

Cut taxes.

Cut regulation.

Cut spending.

Cut the deficit.

Cut legislation.

Cut the language in the constitution that made this evil leviathan possible.

Cut the government down to size — and then keep cutting, forever.

This was the mistake of 1776, not continuing to cut down the state’s dominance of innocent Americans. Anyone who speaks of somehow “perfecting” government is a statist, and he will turn on you just as the Hamiltonians did.


39 posted on 07/16/2010 10:51:55 AM PDT by Greg Swann
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To: Greg Swann

Okay.

And your “Model Government”? What powers do they have? At what level do they function? (community, city, etc ...).
Once established, how exactly are thier powers limited/what prevents them from expanding upon them?

I’d truely like to know!


40 posted on 07/16/2010 10:56:29 AM PDT by An.American.Expatriate (Here's my strategy on the War against Terrorism: We win, they lose. - with apologies to R.R.)
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To: An.American.Expatriate
Apples and oranges. The issue is not the specifications of the car, it is the location of the home office and manufacturing plants.

The unions are powerful in CA, and taxes are onerous. Toyota has moved their assembly lines to other states.

Can the CA legislature dictate than no car can be sold in the state of CA unless it came off an assembly line located in the state, and the corporate headquaters of the company building them is located in, and paying their state income taxes to the state of California?

They've placed the same restricions on all the automobile manufactures.

If California can do that with cars, or anything else, what will be the effect on interstate commerce if they do it, and then other states follow suit to protect their own industries and tax base?

41 posted on 07/16/2010 11:02:13 AM PDT by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
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To: An.American.Expatriate

> And your “Model Government”? What powers do they have? At what level do they function? (community, city, etc ...).

I’m in favor of zero involuntary social contact, which necessarily implies zero government. We are so far from that circumstance that there is not much point in worrying about it, for now. What we’re talking about here is what language to eliminate from the constitution to cut the federal leviathan down to a manageable size. I’m winning the debate, but that’s simply because I’m kicking the stilts out from under the whole monstrous machine: The text I propose to eliminate is precisely the language that gives the federal government its tyrannical powers.

If people reading here would like to see, in broad outlines, how a mutually-voluntary civilization could work, see me here:

http://www.bloodhoundrealty.com/BloodhoundBlog/?p=11437

Please note, especially if you think an hysterical lack of self-control is an intellectual argument, that that essay is off-topic for this discussion.

> Once established, how exactly are their powers limited/what prevents them from expanding upon them?

God did not make men equal. Colonel Colt made men equal. If you’re not willing to fight for your freedom, you are a slave. This is not difficult to understand.


42 posted on 07/16/2010 11:31:17 AM PDT by Greg Swann
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To: tacticalogic
The issue is not the specifications of the car, it is the location of the home office and manufacturing plants.

Not exactly. The dealership is licensed in the state as an official agent of the automaker and is subhect to the states jurisdiction.

Can the CA legislature dictate than no car can be sold in the state of CA unless it came off an assembly line located in the state, and the corporate headquaters of the company building them is located in, and paying their state income taxes to the state of California?

Sure. But that doesn't mean that the auto makers will comply, and, as green as the left coast is - I doubt the people would be happy if no new cars could be sold in the state because of some silly act of thier legislature...

If California can do that with cars, or anything else, what will be the effect on interstate commerce if they do it, and then other states follow suit to protect their own industries and tax base?

Obviously this would be suboptimal (LOL). However, as it would be insane for almost any major manufacturer to have plants "everywhere" - it would likewise be insane for states to begin making such laws! 200 years ago perhaps, since most things NEEDED to be produced locally as the cost and risk of transport was too expensive.

I contend that a broad definition of what the commerce clause to allow regulation of intrastate is the exact opposite of it's original intent as it gives the Federal Government the power to regulate - theoretically - all the way into you bedroom.

43 posted on 07/16/2010 11:40:48 AM PDT by An.American.Expatriate (Here's my strategy on the War against Terrorism: We win, they lose. - with apologies to R.R.)
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To: Greg Swann

Okay Greg, I understand.

You want nation wide anarchy and the rule of the fittest.

Good Luck.


44 posted on 07/16/2010 11:44:04 AM PDT by An.American.Expatriate (Here's my strategy on the War against Terrorism: We win, they lose. - with apologies to R.R.)
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To: An.American.Expatriate

> Okay Greg, I understand.

Very gaceful concession, all things considered.


45 posted on 07/16/2010 11:54:56 AM PDT by Greg Swann
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To: An.American.Expatriate

> Okay Greg, I understand.

Very graceful concession, all things considered.


46 posted on 07/16/2010 11:55:08 AM PDT by Greg Swann
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To: An.American.Expatriate
I contend that a broad definition of what the commerce clause to allow regulation of intrastate is the exact opposite of it's original intent as it gives the Federal Government the power to regulate - theoretically - all the way into you bedroom.

I agree the "substantial effects" doctrine needs to go, but I still contend that the original intent of the Commerce Clause would disallow a state imposing an embargo for the same reasons it would disallow imposing an import tax, duty, or tariff. The are all equally destructive to interstate commerce.

47 posted on 07/16/2010 12:03:52 PM PDT by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
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To: tacticalogic

the clause disallowing what you claim is in article 1 section 10 - not 8!


48 posted on 07/16/2010 12:45:31 PM PDT by An.American.Expatriate (Here's my strategy on the War against Terrorism: We win, they lose. - with apologies to R.R.)
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To: Greg Swann

;D


49 posted on 07/16/2010 12:46:20 PM PDT by An.American.Expatriate (Here's my strategy on the War against Terrorism: We win, they lose. - with apologies to R.R.)
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To: An.American.Expatriate
As I understand it, the original intent of the grant of power to regulate interstate commerce was to prevent the states from doing things like imposing tariffs and duties on goods from other states. It is described generally by Madison as "injustices among the states themselves".

If you think I've misunderstood that, then show me the historical evidence that contradicts it and I'll consider and discuss it. If you can't take what I've said in that context, I have no more interst in you or your amendment, and you can go pound sand.

50 posted on 07/16/2010 12:53:26 PM PDT by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
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