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Cleveland Plain Dealer ^ | September 20, 2005 | Armond Budish

Posted on 09/20/2005 6:27:36 PM PDT by Graybeard58

Shortly after the death of U.S. Chief Justice William Rehnquist, I was asked to give my opinion about what history would consider his most important decision. That's very tough, given his 33-year tenure on the court. Certainly his decision in Bush v. Gore, which stopped the Florida recounts in the 2000 presidential election, was controversial. His 2002 decision in Zelman v. Simmons-Harris, which allowed federal tax money to be used to pay for children attending religious schools, also was a pivotal one.

But in my opinion, the decision that may have the most lasting and far-reaching impact is the lesser-known case of United States v. Lopez, decided in 1995. That case struck a major blow against the power of Congress and in favor of states' rights.

To understand that case, we need first to address the relationship of federal and state legislative power. In general, Congress may pass laws only when empowered to do so under the U.S. Constitution. All other powers not specified in the Constitution belong to the states or the people.

Many of our federal laws have been passed under the power of the commerce clause of Ar ticle 1 of the Constitu tion. That gives Con gress the right to pass laws "to regulate commerce . . . among the several states."

Over the years, Congress and the courts have interpreted Congress' powers to regulate interstate commerce very broadly. Consider the Civil Rights Act, which was passed by Congress to stop businesses from discriminating against black customers. The Supreme Court ruled that this federal law could be constitutionally applied to a small restaurant with local customers because it sold food that had moved across state lines.

In another case, a man who operated a small farm in Ohio challenged a federal law that regulated how much wheat he could grow on his land. He grew the wheat for his own consumption and to feed his livestock, not to sell in interstate commerce. Even so, the Supreme Court ruled that the law was valid under the commerce clause because even if the wheat "is never marketed, it supplies a need of the man who grew it, which would otherwise be reflected by purchases in the open market. Homegrown wheat in this sense competes with wheat in commerce."

As you can see, this interpretation of the commerce clause goes pretty far.

It's been used over the years to justify adoption of many federal laws, including the National Labor Relations Act, the Fair Labor Standards Act and the Civil Rights Act.

Conservatives on the court have long felt that Congress had gone too far in usurping the power of the states. Yet over a period of 60 years, a string of Supreme Court rulings seemed to constantly expand Congress' powers.

That changed in 1995, with the case of United States v. Lopez. Congress had adopted the Gun Free School Zones Act of 1990, making it a federal crime to have a gun near a school.

A 12th-grader who had been arrested for bringing a gun to school challenged the law, saying Congress had no power to pass it. The government justified the law under the commerce clause, saying that the presence of guns in schools threatens the learning environment, which means students won't learn as much, which means they'll not become as productive after graduation, which will harm the nation's economy.

Rehnquist, writing for the majority, rejected the government's argument, saying this was stretching way too far to find an impact on interstate commerce.

The significance of the Lopez case goes far beyond the issue of guns in schools. The commerce clause has been used to justify dozens of federal environmental, consumer, civil rights, health and safety laws. Cutting back on the scope of the commerce clause cuts back significantly on the power of the federal government, leaving more power to the states. That shift will affect all of us in our daily lives.

TOPICS: Constitution/Conservatism
KEYWORDS: armondbudish; budish; commerceclause; rehnquist; scotus; supremecourt

1 posted on 09/20/2005 6:27:38 PM PDT by Graybeard58
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To: Graybeard58

BTTT and bookmarked. Good find, Graybeard58. Now if we can get the court to backpedal on a lot of these treaty laws Congress has passing to grab municipal power when it couldn't stretch the commerce clause far enough, this country will start moving in the right direction again.

2 posted on 09/20/2005 7:04:59 PM PDT by Eastbound
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To: Graybeard58

This is news to me---It would be wonderful if we could turn this whole situation around, and give power back to the states, as it was intended by the founders.

3 posted on 09/20/2005 7:06:12 PM PDT by basil (Exercise your Second Amendment--buy another gun today!)
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To: Eastbound

They have stretched the commerce clause and twisted it to fit any situation they want.

4 posted on 09/20/2005 7:13:01 PM PDT by Graybeard58 (Remember and pray for Sgt. Matt Maupin - MIA/POW- Iraq since 04/09/04)
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To: Graybeard58
Long before the liberals promoted the Constitution as a "living document" they used the commerce clause and th general welfare clause to cover most everything. Their attempt was to mute states rights in favor of an all-powerful central government.

The problem with the Roe vs. Wade decision is its ambiguousness. The term privacy can be stretched a long way. The Kelo decision changed the meaning of the Constitution by changing one word. Use became purpose, a whole new ball game.

The Communists intend to destroy us as a country, in part, by destroying the Constitution and its meaning. They overstep restrictions to suit their purposes, as with the clauses discussed above, and they impose restrictions, like the smoking ban, where the Constitution saw none. If you want to test their belief in privacy try lighting up amongst a bunch of liberals in a restaurant.
5 posted on 09/20/2005 7:37:56 PM PDT by Mind-numbed Robot (Not all that needs to be done needs to be done by the government.)
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To: Mind-numbed Robot
The Kelo decision changed the meaning of the Constitution by changing one word. Use became purpose, a whole new ball game.

Actually, one could read the Constitution quite literally as simply saying that just compensation is necessary when private property is taken for public use. It does not actually forbid taking private property for private use, nor does it even require conpensation in such case. Of course, that's probably because the framers thought that the wrongness of such takings was so blatantly obvious as to not need mention.

6 posted on 09/20/2005 8:27:02 PM PDT by supercat (Don't fix blame--FIX THE PROBLEM.)
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To: Graybeard58

We're over due.

7 posted on 09/20/2005 8:27:09 PM PDT by StACase
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To: supercat

Is this not correct?

"The due process clause of the Fourteenth Amendment has been held to require that when a state or local governmental body, or a private body exercising delegated power, takes private property it must provide just compensation and take only for a public purpose. Applicable principles are discussed under the Fifth Amendment."

8 posted on 09/20/2005 8:55:30 PM PDT by Mind-numbed Robot (Not all that needs to be done needs to be done by the government.)
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