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To: BlackElk; Dead Corpse
Dead Corpse is correct...the Commerce Clause was a power given to the new federal government by the states solely for the purpose of giving the federal government the power to prohibit any one state from erecting barriers to free trade...in other words, to give the federal government the power to create a free trade zone among the 13 states.

A great analysis of the real (and very limited) scope of the Commerce Clause can be found in Clarence Thomas' concurrence in U.S. v. Lopez

J. Thomas-US v. Lopez

As to the 2nd Amendment...or any Amendment...you can never put too much stock in the Amendments because you have to remember the political context of the ratification process. In late 1787 and early 1788, the Federalists were prevailing in every state ratification convention. The Anti-Federalists were seeking ways to reverse the successes of the Federalists and the two key political tactics they used were to (1) call for the second Constitutional Convention where issues they had with the Constitution could be further debated and addressed and (2) to seek to convince those on the fence about whether to ratify the Constitution that it was defective without a Bill of Rights.

The Federalists, who were more far politically skilled than the Anti-Federalists (who, for the most part lacked a stong, skilled political leader) pulled the rug out from under the second Anti-Federalist objection when they agreed to add a Bill of Rights. But, the Bill of Rights only applied to the federal government. So, the federal government could not abridge free speech...or infringe on the people's right to bear arms...or to engage in unreasonable searches and seizures, etc. The Bill of Rights did not apply to the state governments and it wasn't until the 20th century that activist courts first created the fiction that the 14th Amendment "incorporated" the Bill of Rights against the states

58 posted on 05/14/2007 7:17:13 AM PDT by Irontank (Ron Paul for President)
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To: Irontank
But, the Bill of Rights only applied to the federal government.

Er... no. The writings of Mason, Rawle, and Story all give the lie to this one. The whole "the BoR only applies to the FedGov" was invented from whole cloth by Marshall. Once ratified, those first ten Amendments were "incorporated" into the Constitution and applied to the States via Art 4 Sect 2 and Art 6 para 2. It was Marshall's over turning of this via judicial legislation from the bench that required passage of the 14th Amendment.

The prohibition is general. No clause in the constitution could by any rule of construction be conceived to give congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both. William Rawle 1829.

"The whole of the Bill [of Rights] is a declaration of the right of the people at large or considered as individuals … It establishes some rights of the individual as unalienable and which consequently, no majority has a right to deprive them of." Albert Gallatin to the New York Historical Society, October 7, 1789

Jefferson even tried to warn us that the Judiciary might over step its bounds to make the Constitution mean things it was never intended to.

"The judiciary of the United States is the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric. They are construing our constitution from a co-ordination of a general and special government to a general and supreme one alone. This will lay all things at their feet..." Thomas Jefferson, letter to Thomas Ritchie, December 25, 1820.

61 posted on 05/14/2007 7:26:49 AM PDT by Dead Corpse (What would a free man do?)
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To: Irontank; Dead Corpse
It is nice that he/she and you think that your ideas and libertoonianism generally can be freely substituted for the text of the constitution itself and for well-settled principles of construction of same. Your opinions do not make it so.

I posted the text of the Interstate Commerce clause which was part of the original constitution. I then referenced the 2nd Amendment (BTW, US vs. Lopez is a 2nd Amendment situation in which Congress attempted to ignore the Second Amendment (the RTKBA) in its zeal to regulate gun POSSESSION within a certain radius of schools and thereby slake the thirst of enemies of an armed citizenry to destroy actual constitutionally required freedoms. As anyone who despises Roe vs. Wade and its progeny can tell you, SCOTUS decisions are now a quite unreliable guide to our constitution.

No matter how fine a fellow SCOTUS Associate Justice Clarence Thomas truly is, his concurring opinion in US vs. Lopez was just that, a CONCURRING opinion, in any event. He agreed with and registered his agreement with the RESULT of the case but his reasoning was not the reasoning of the SCOTUS nor was it the decision of the SCOTUS.

That you think Dead Corpse is correct does not make him/her correct.

That either or both of you think that the free-trader ideology of the soon to be extinguished Federalist Party which motivated the Annapolis Conference and the Monticello (?) conference of those conspiring to replace the Articles of Confederation with the present constitution is understandable and you are probably right on that. BUT, it doesn't matter what their motivations were. It does matter what the text says. Plainly and unambiguously, the constitution grants to Congress the power to regulate interstate commerce, commerce with foreign nations and commerce with Indian tribes. It does not require Congress to so regulate. It does not prohibit such regulation and it does not specify particular regulations.

The Interstate Commerce Clause did not cover thirteen states unless and until thirteen states ratified the constitution. Since the Articles of Confederation required unanimity among the states to change constitutional arrangements, one might well argue that no states were covered until all had ratified. Unfortunately, our times are not the first for the practice of constitutional illiteracy by our leaders who should know better. Several states including the Commonwealth of Rhode Island and Providence Plantations did not ratify until much later than 1787 or 1788.

Thomas Jefferson had some skill at politics and his political party swept the Federalist elitists from the field by the very early 19th century. Aaron Burr had some skill with small arms and fired the best and most useful shot fired in the early republic in a little dustup at Weehawken, NJ.

Under English Common Law which was adopted whole at the conclusion of our Revolution, there was a principle of "expressio unius, exclusio alterius." That is: The expression of one or more items in a document of a series of items that might have been expressed works the exclusion of the others that MIGHT have been addressed. There was a desire for a right not to quarter soldiers in citizens' homes (3rd Amendment), for Freedom of Speech, Assembly, Press and Worship without an Establishment of a National Religion as the Brits had done with Anglicanism in the UK (1st Amendment) and for many other specific individual rights. Lawyers familiar with "expressio unius, exclusio alterius" worried that other rights might not be recognized. Hence the Ninth and Tenth Amendments. This was not a mere delaying tactic to thwart the congregation worshiping the almighty dollar above all else but a principled and practical objection go the proposed constitution in the absence of a bill of rights such as was enacted. The Federalists in a ridiculous dither against what amounted to the indirectly democratic decision-making envisioned by the constitution and protected by the bill of rights drove Hamilton from the field of political battle before Burr finished him off.

Thereafter, the Federalist dead hand of the past was wielded by the power-grabbing anachronism, Chief Justice John Marshall until he went the way of all flesh to be replaced by Andrew Jackson who rightly despised Marshall.

Your last point has some validity. The fedgov did not presume to wield all those powers until liberal 20th century SCOTUS majorities caved to FDR and his "pragmatist" views and methods by inventing the "incorporation" theory whereby it was theorized that whatever liberals valued in the bill of rights was "incorporated" via the 14th Amendment and whatever they did not value was not. Scholars searching the constitution for the source of that distinction have been as unsuccessful as scholars have been in searching for the "constitutional" text mandating that abortion be freely allowed in all 50 states while gun ownership can apparently be restrained and as unsuccessful as O. J. Simpson has been in finding "the real killer(s)" of his late ex-wife Nicole and of Mr. Goldman despite a truly comprehensive search of America's golf courses which he apparently believes are the most likely hiding places.

Finally, the 14th Amendment DOES specifically requires that: "Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

This is not nuclear physics or rocket science. The due process clause imposes upon the respective stategovs the obligation to apply in state matters the federal 5th Amendment right to due process. Equal protection was more than the constitution had imposed even on the feds themselves but try to tell SCOTUS in the feral heat of its zeal to replace the entire constitution (as deemed necessary or merely desirable in what passes for liberal minds) with the 14th Amendment.

67 posted on 05/14/2007 12:02:34 PM PDT by BlackElk (Dean of Discipline of the Tomas de Torquemada Gentlemen's Club)
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