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The Commerce Clause, The Federal Judiciary, and Tyranny (or How Scalia Helped Screw America)
self | 10/15/09 | Huck

Posted on 10/16/2009 8:29:12 AM PDT by Huck

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I woke up early, grabbed my coffee and breakfast cigar, and wrote this little essay for your consideration. Part of an ongoing inquiry into the defects in The Constitution.
1 posted on 10/16/2009 8:29:12 AM PDT by Huck
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To: MrB; frogjerk; Rockingham; Loud Mime; tacticalogic; ClearCase_guy; BenLurkin

Today’s installment.


2 posted on 10/16/2009 8:32:10 AM PDT by Huck ("He that lives on hope will die fasting"- Ben Franklin, Poor Richard's Almanac)
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To: Huck

“Last, I will argue that the harm created through Commerce Clause jurisprudence appears irreversible...”

Absolutely not irreversible...


3 posted on 10/16/2009 8:33:27 AM PDT by jessduntno (Tell Obama to STFU - Stop The Federal Usurpation.)
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To: jessduntno

Saying it’s so doesn’t make it so. Go ahead and make your case—I’m listening.


4 posted on 10/16/2009 8:38:22 AM PDT by Huck ("He that lives on hope will die fasting"- Ben Franklin, Poor Richard's Almanac)
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To: Huck
It appears you can trust Justice Thomas

Thomas is still the best Justice on the Court, nothing new there.

5 posted on 10/16/2009 8:38:23 AM PDT by eclecticEel (The Most High rules in the kingdom of men ... and sets over it the basest of men.)
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To: eclecticEel

Definitely.


6 posted on 10/16/2009 8:38:45 AM PDT by Huck ("He that lives on hope will die fasting"- Ben Franklin, Poor Richard's Almanac)
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To: Huck

“Saying it’s so doesn’t make it so. Go ahead and make your case—I’m listening.”

Make the case that a precedent is irreversible? Why? It’s self evident.


7 posted on 10/16/2009 8:41:58 AM PDT by jessduntno (Tell Obama to STFU - Stop The Federal Usurpation.)
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To: Huck
Slamming Scalia for the Commerce Clause seems hardly fair since it's been used for Decades, if not since the war of recent unpleasantness (Civil War) to deal with issues between the states.

The Commerce Clause is about to be severely tested by the current Administration, Senate and Congress in whether they can impose their health care laws upon the states. I consider that they do not have this right.

Scalia is the wrong target.

8 posted on 10/16/2009 8:42:50 AM PDT by sr4402
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To: Huck

Scalia jumped the shark for me in this decision, and it also confirmed Thomas as the best justice, if not perfect himself (he went with Congress stretching “limited times” of copyright beyond belief).


9 posted on 10/16/2009 8:43:06 AM PDT by antiRepublicrat
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To: jessduntno

I think you meant to say “reversible.” What is evident is that as recently as 2005, the Supreme Court affirmed the body of Commerce Clause jurisprudence, and was joined by the second most “originalist” justice on the bench. If you don’t comprehend what that means, then you don’t understand the judiciary.


10 posted on 10/16/2009 8:45:14 AM PDT by Huck ("He that lives on hope will die fasting"- Ben Franklin, Poor Richard's Almanac)
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To: Huck

“Saying it’s so doesn’t make it so. Go ahead and make your case—I’m listening.”

It’s not my case, but there is this thing called the amendment process. And even if it’s not likely to happen, the interstate commerce clause could be blotted out.


11 posted on 10/16/2009 8:51:33 AM PDT by Tublecane
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To: Huck
I'm thinking the poster means not irreversible in a 1776 sort of way.
12 posted on 10/16/2009 8:51:44 AM PDT by SoCal Pubbie
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To: Huck

The greatest growth in this country’s influence and economy came when we were following the Constitution as written, before the New Deal era and following extension of the Commerce Clause and discarding the Tenth Amendment.

It will be extremely difficult to reverse, since reversal will mean undoing Social Security, Medicare, the EPA, the Department of Education, etc., etc. Desirable? Yes. Possible? It will take a President willing to veto any bill that violates those principles in which we believe and to appoint judges and Justices who will do the same.

This wasn’t a popular position in law school, but it is the only real reading of the Constitution to me.


13 posted on 10/16/2009 8:52:16 AM PDT by mak5
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To: Huck
Thanks, will read later.

BTW, As much as I love Ben Franklin his words of wisdom in your tagline are not well thought out. The Holy Saints never died of fasting and all they lived on was hope.

The current occupant of the White House's snake oil pitch he sold during the election and the theological virtue of hope couldn't be more antithetical in meaning. The former is straight from Hell and the latter is straight from Heaven.

14 posted on 10/16/2009 8:54:46 AM PDT by frogjerk (Obama Administration: Security thru Absurdity)
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To: Huck

Have you given any thought to how this case compares with the states who want to sell guns made within that state thereby exempting those sales from federal control?


15 posted on 10/16/2009 8:56:32 AM PDT by raybbr (It's going to get a lot worse now that the anchor babies are voting!)
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To: Huck
Thank God its not Bush's fault.

It's Scalia's fault!

Maybe Sarah Palin, Ronald Reagan, Ann Coulter, William F. Buckley, Russel Kirk and Newt Gingrich had a hand in it too. I dunno. It's possible. Conservatives are always at fault. Even when liberals do it.

16 posted on 10/16/2009 8:57:43 AM PDT by Brugmansian
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To: antiRepublicrat
-- Scalia jumped the shark for me in this decision ... --

The majority in Heller (composed by Scalia) is another decision that really bugs me. He completely and obviously misconstrued the 1937 Miller precedent (e.g., "Miller was convicted" is false. Miller's indictment was quashed! He was never even tried). As far as I'm concerned, SCOTUS is just another bunch of elitist hacks.

There is no logical remedy (set of rules, rewritten constitution, whatever) that will operate against dishonest, illogical hacks. Any set of words can be ignored or twisted to meet whatever outcome the "power man" desires.

17 posted on 10/16/2009 8:58:08 AM PDT by Cboldt
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To: sr4402
Slamming Scalia for the Commerce Clause seems hardly fair since it's been used for Decades, if not since the war of recent unpleasantness (Civil War) to deal with issues between the states.

Scalia deserves whatever criticism he gets for Raich. It was clearly a case of outcome-based jurisprudence, especially when compared to Lopez.

I included him in the title in part as an attention-grabber (I'd like people to read my essay, after all), but in my view it is fair criticism and it goes to my larger point.

The power of the federal judiciary, and their methods (common law, stare decisis) make their errors virtually permanent, and the more times an error is affirmed, the more unlikely it becomes that it will be reversed.

The powers granted to the the Fed Gov via commerce clause jurisprudence are so monumentally far-reaching, it is critical to the survival of any semblance of limited federal power that they be reversed. If not, we're screwed.

The Commerce Clause is about to be severely tested by the current Administration, Senate and Congress in whether they can impose their health care laws upon the states. I consider that they do not have this right.

Even if the Court pulls together a majority opposed to federal health care legislation, they will do so in a limited way that does not undue the overall impact of the commerce clause--in short, it would be a political victory, not a judicial victory. Contrast Lopez and Raich and you'll see what I mean. They'll apply the law however they see fit to reach the desired end. This demonstrates the inherent flaw in the Constitution that created a judiciary that is more powerful than the legislative branch, and unaccountable for their errors. Scalia is the wrong target.

18 posted on 10/16/2009 8:59:32 AM PDT by Huck ("He that lives on hope will die fasting"- Ben Franklin, Poor Richard's Almanac)
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To: raybbr
-- Have you given any thought to how this case compares with the states who want to sell guns made within that state thereby exempting those sales from federal control? --

Raich will be used to render Montana/Utah's attempts to make in-state weapons and ammo out of reach of the feds to be nothing but grandstanding. CA tried to make in-state pot legal, and that is not accepted by the Feds. There is a case on the books of a fellow with a homemade machine gun, probably never left his house, and he was convicted (upheld too) on federal charges.

19 posted on 10/16/2009 9:01:00 AM PDT by Cboldt
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To: Cboldt
There is no logical remedy (set of rules, rewritten constitution, whatever) that will operate against dishonest, illogical hacks. Any set of words can be ignored or twisted to meet whatever outcome the "power man" desires.

Logical remedy is going to be my next inquiry. I think the answer will be to not empower the hacks in the first place. That was the point of the anti-federalists. The Constitution created the hacks, the "power man", where there were none. There was no Federal judiciary, once upon a time.

20 posted on 10/16/2009 9:02:28 AM PDT by Huck ("He that lives on hope will die fasting"- Ben Franklin, Poor Richard's Almanac)
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To: Huck
"I think you meant to say “reversible.” What is evident is that as recently as 2005, the Supreme Court affirmed the body of Commerce Clause jurisprudence, and was joined by the second most “originalist” justice on the bench. If you don’t comprehend what that means, then you don’t understand the judiciary."

Thanks...you made my point for me...you knew what I meant because it is true...and what does my comprehension have to do with this?

Honest answer, now;

True or false; this is not irreversible.

21 posted on 10/16/2009 9:03:31 AM PDT by jessduntno (Tell Obama to STFU - Stop The Federal Usurpation.)
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To: Huck
-- the more times an error is affirmed, the more unlikely it becomes that it will be reversed. --

I'd add to that that the Circuit Courts participate in this. The Circuits can misconstrue SCOTUS precedent, and SCOTUS can refuse cert if it likes the outcome. See chronic misconstruction of Presser, for example.

22 posted on 10/16/2009 9:04:06 AM PDT by Cboldt
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To: Cboldt
Raich will be used to render Montana/Utah's attempts to make in-state weapons and ammo out of reach of the feds to be nothing but grandstanding.

One would think so. It wouldn't surprise me, on the other hand, to see the a conservative majority twist around its pretzel logic to reach a desired political end. They went one way on Lopez, and another way on Raich, for what I believe to be political reasons. No matter the outcome, we will remain at the whim of an unaccountable, all-powerful judiciary limited only by its own imagination and creativity.

23 posted on 10/16/2009 9:04:52 AM PDT by Huck ("He that lives on hope will die fasting"- Ben Franklin, Poor Richard's Almanac)
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To: jessduntno

You’re confused, and playing word games. Is it reversible in theory? Yes. Is it reversible in reality, in practice? No. We’re stuck with it.


24 posted on 10/16/2009 9:06:23 AM PDT by Huck ("He that lives on hope will die fasting"- Ben Franklin, Poor Richard's Almanac)
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To: Huck
-- The Constitution created the hacks, the "power man", where there were none. There was no Federal judiciary, once upon a time. --

Yeah, but if it isn't the Courts subverting the limitations, it'll be the Congress and/or the Executive. One problem we have now is that all three branches are working in cahoots, to overstep the power and authority they were granted in the first place.

In other words, you can cut the judiciary out, but Congress and/or the executive will step into the power vacuum. At some point, the people either assert a credible threat of extreme violence, or the government will prevail because IT's credible threat of extreme violence is quite real.

25 posted on 10/16/2009 9:07:53 AM PDT by Cboldt
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To: Huck

Raich was poorly decided in view of Morrison and Lopez, I’ll agree.

I disagree with your notion that Marbury v. Madison is wrong. You appear to argue that the Court should be incapable of invalidating any act passed by Congress. Depriving them of that power would disrupt our systems of checks and balances, a system that requires three roughly co-equal branches, which is worked more or less fine for 225 years.


26 posted on 10/16/2009 9:10:49 AM PDT by altsehastiin
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To: Huck

(1) The protection of interstate commerce was a key reason for the creation of the Constitution. Under the Confederation, the separate states erected trade and tariff barriers that strangled commerce between the states. Without the Constitution and the Commerce Clause power to prevent that, the United States would have been vastly poorer and weaker.

(2) The differences between Scalia and Thomas on the Commerce Clause stem from larger philosophical differences in their understanding of originalism.

Scalia is unwilling to reverse case law decisions that have been settled for seventy five years or a century and incorporated into the fabric of American law and life. Thomas, a more stringent originalist than Scalia, is willing to reverse decisions that he sees as wrongly decided no matter how long settled those decision are.

Yet even when Scalia and Thomas are united, as they often are, they are but two votes on a nine member Court.

(3) In 19th Century America, Congress applied the Commerce Clause power more expansively so as to spur and protect the development of internal commerce and communications. Otherwise, every railroad, telegraph line, shipping company, and so on would have been exposed to the parochial and often predatory and corrupt enactments of state and local governments. This is squarely within the ambit of the original intent of the Commerce Clause power.

(4) The use of the Commerce Clause power as the constitutional basis for the New Deal federal welfare and regulatory state is another matter. A principled opposition to that expansion and an effort to reverse it are consistent with the philosophy of Scalia and Thomas.

(5) Raich is yet another matter because it deals with the prohibition of marijuana, something that virtually all states and the federal government agree on. Permitting one or a handful of individual states to legalize marijuana subverts that ban is logically contrary to the commerce clause power.


27 posted on 10/16/2009 9:11:36 AM PDT by Rockingham
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To: Huck
-- No matter the outcome, we will remain at the whim of an unaccountable, all-powerful judiciary limited only by its own imagination and creativity. --

The reason the Courts are unaccountable is because the legislature, which has the power of impeachment, prefers to use the Courts to implement unpopular law. Congress and the Courts are in cahoots, against the constitution. See Heller and upholding unconstitutional parts of the 1934 NFA.

That the people don't demand impeachment and removal of judicial hacks is just another example of how the people permit their government to run wild.

28 posted on 10/16/2009 9:12:25 AM PDT by Cboldt
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To: Brugmansian
Thank God its not Bush's fault.

Raich featured the Bush Justice dept--Ashcroft and then Gonzalez, so they are partially at fault.

It's Scalia's fault!

Now you're just being absurd. First, I didn't say it was Scalia's fault. I didn't say he screwed America. I said he helped screw America. And he did. Facts are facts, even if you don't like them.

Conservatives are always at fault. Even when liberals do it.

Again, you're just being silly. Liberals are beyond hope. We don't look to them to further the cause of liberty. We don't look to them to reign in federal power. We don't look to them to aid us in keeping the fed gov within its intended limits. It's not even worth discussing.

But we DO look to conservative politicians, and conservative justices. We expect them to do it, and if they don't, we target them for unemployment.

If you cannot trust Scalia on an issue as important as this, then what hope is there? You have to appreciate what the commerce clause, as interpreted by the court, has done to the notion of limited federal power. And you have to appreciate how damaging it is to have that jurisprudence affirmed AGAIN. And yes, Scalia joined the liberals on this question. So cry your political tears all you want. The facts are what they are.

29 posted on 10/16/2009 9:12:25 AM PDT by Huck ("He that lives on hope will die fasting"- Ben Franklin, Poor Richard's Almanac)
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To: altsehastiin
a system that requires three roughly co-equal branches, which is worked more or less fine for 225 years.

You can't be serious.

30 posted on 10/16/2009 9:13:41 AM PDT by Huck ("He that lives on hope will die fasting"- Ben Franklin, Poor Richard's Almanac)
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To: altsehastiin

On a more basic level, you complain about the Constitution making the Court superior to Congress in some cases, then complain about the Court NOT reining in Congress’ expansive view of its own powers under the commerce clause in Raich.

What do you want, exactly?


31 posted on 10/16/2009 9:14:18 AM PDT by altsehastiin
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To: Huck

“You can’t be serious.”

Ah, since we’ve moved on to pithy insults, any “analysis” of commerce clause jurisprudence that omits Lopez and Morrison isn’t worth the disk space it’s saved on.


32 posted on 10/16/2009 9:17:09 AM PDT by altsehastiin
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To: Huck

“You’re confused, and playing word games. Is it reversible in theory? Yes. Is it reversible in reality, in practice? No.”

I’m confused? I asked true or false and got that?

Hahahahahha...thanks, made my day.


33 posted on 10/16/2009 9:17:58 AM PDT by jessduntno (Tell Obama to STFU - Stop The Federal Usurpation.)
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To: mak5

Assuming that we will have meaningful elections in 2010, 2012, and beyond, might sufficient backlash against the health care “reform” open a window for a truly conservative administration? How then might the SCOTUS react? Do you see as much as a *remote chance* of “unscrewing” the nation.

An assumption of meaningful elections is a strong assumption. I’m sure Obama and the Dem congress are trying to arrange for their power to be permanent. But, I still hope and pray.


34 posted on 10/16/2009 9:18:17 AM PDT by JohnQ1 (Pray for peace, prepare for war.)
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To: altsehastiin
-- any "analysis" of commerce clause jurisprudence that omits Lopez and Morrison isn't worth the disk space it’s saved on. --

Considerable discussion takes place where the writer is under the belief that Lopez worked a reigning-in of Congressional power. It did not. Congress rewrote that portion of law (Gun Free School Zones Act), and there have been post-Lopez CONVICTIONS on the federal prohibition of guns in school zones.

35 posted on 10/16/2009 9:20:40 AM PDT by Cboldt
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To: Cboldt
The reason the Courts are unaccountable is because the legislature, which has the power of impeachment

That is not how the power of impeachment was understood at the time of ratification.

Antifederalist 78:

The only clause in the constitution which provides for the removal of the judges from offices, is that which declares, that "the president, vice- president, and all civil officers of the United States, shall be removed from office, on impeachment for, and conviction of treason, bribery, or other high crimes and misdemeanors." By this paragraph, civil officers, in which the judges are included, are removable only for crimes. Treason and bribery are named, and the rest are included under the general terms of high crimes and misdemeanors. Errors in judgment, or want of capacity to discharge the duties of the office, can never be supposed to be included in these words, high crimes and misdemeanors. A man may mistake a case in giving judgment, or manifest that he is incompetent to the discharge of the duties of a judge, and yet give no evidence of corruption or want of integrity. To support the charge, it will be necessary to give in evidence some facts that will show, that the judges committed the error from wicked and corrupt motives.

Antifederalist 80:

The real effect of this system of government, will therefore be brought home to the feelings of the people, through the medium of the judicial power. It is, moreover, of great importance, to examine with care the nature and extent of the judicial power, because those who are to be vested with it, are to be placed in a situation altogether unprecedented in a free country. They are to be rendered totally independent, both of the people and the legislature, both with respect to their offices and salaries. No errors they may commit can be corrected by any power above them, if any such power there be, nor can they be removed from office for making ever so many erroneous adjudications.

The only causes for which they can be displaced, is, conviction of treason, bribery, and high crimes and misdemeanors....

When the courts will have a precedent before them of a court which extended its jurisdiction in opposition to an act of the legislature, is it not to be expected that they will extend theirs, especially when there is nothing in the constitution expressly against it? And they are authorised to construe its meaning, and are not under any control.

This power in the judicial, will enable them to mould the government, into any shape they please.

If you stretch the causes of impeachment to include judicial decisions with which you disagree, then impeachment becomes a political farce.

36 posted on 10/16/2009 9:22:11 AM PDT by Huck ("He that lives on hope will die fasting"- Ben Franklin, Poor Richard's Almanac)
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To: Huck

thank you Huck

you dashed this off?

why can’t we have you somewhere in government?

or, are you.....maybe you better not say.


37 posted on 10/16/2009 9:23:42 AM PDT by kralcmot (my tagline died with Terri)
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To: altsehastiin

Well, speaking of pithy, I tried to hit a few cases along the way. I couldn’t catalog the entire history. For the purposes of this essay, I had to get Wickard in there. And Raich.


38 posted on 10/16/2009 9:26:15 AM PDT by Huck ("He that lives on hope will die fasting"- Ben Franklin, Poor Richard's Almanac)
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To: kralcmot

I honestly did. I set my alarm so I could get up early and work on it. And no, I don’t work in the gubmint, though, through taxation, I certainly work FOR the gubmint!


39 posted on 10/16/2009 9:27:35 AM PDT by Huck ("He that lives on hope will die fasting"- Ben Franklin, Poor Richard's Almanac)
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To: Huck
-- If you stretch the causes of impeachment to include judicial decisions with which you disagree, then impeachment becomes a political farce. --

That depends on the basis for the disagreement.

Plus, I don't see an impeachment farce as any worse than a constitutional farce, where, e.g., every federal law is withing the limited powers granted by the constitution because everything has some relation to commerce.

If a judge make a pronouncement of law based on pure fiction (e.g., "Miller was convicted, we upheld the law"), that's a farce too. If all three branches o along with it, the people don't have a remedy in the constitution.

I appreciate that Congress does not want to impeach, because then IT would be accountable. Plus, as I noted above, Congress LIKES for the Courts to give force to unconstitutional Congressional enactments. They like being empowered, even if the empowerment is illegitimate under the constitution.

40 posted on 10/16/2009 9:30:12 AM PDT by Cboldt
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To: Tublecane

Well, whoah, we don’t want the ICClause “blotted out.” We want it properly penned in as originally intended, no?


41 posted on 10/16/2009 9:32:45 AM PDT by pogo101
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To: altsehastiin
On a more basic level, you complain about the Constitution making the Court superior to Congress in some cases, then complain about the Court NOT reining in Congress’ expansive view of its own powers under the commerce clause in Raich.

That's incorrect. Nowhere in this essay do I even mention Congress. The expansive view of the commerce clause derives from the Supreme Court. Congress is the happy benefactor of this jurisprudence, but the Constitution does not empower them to decide such cases. That power belongs to the Federal Judiciary.

What do you want, exactly?

I want a better system of government. To that end, I am first examining the defects in the current system, just as the framers first examined the defects in theirs. In this essay, I am discussing the defects of Article 3, and demonstrating the results of the defects.

I mention at the end of the essay that the question of what to do instead of what we have remains an unanswered question. I hope to address it in the future, but I must complete my autopsy of the Constitution first.

42 posted on 10/16/2009 9:33:37 AM PDT by Huck ("He that lives on hope will die fasting"- Ben Franklin, Poor Richard's Almanac)
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To: altsehastiin

And by the way, I didn’t mean my reply to you as a “pithy insult.” Pithy maybe, but not an insult. It was an expression of disbelief. I find the statement that our system has worked “more or less fine” a pretty amazing statement, and meant only to express that reaction.


43 posted on 10/16/2009 9:35:43 AM PDT by Huck ("He that lives on hope will die fasting"- Ben Franklin, Poor Richard's Almanac)
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To: jessduntno

That’s fine. Laugh yourself silly. A baseball team that is 20 games out of first place may mathematically still have a chance to win its division. But if they are in the division with a far superior team, and if all of their key players are out for the season, that possibility is only mathematical. The odds of them actually winning are virtually nil. This is easily understood, but go ahead and laugh. The destruction of liberty is hilarious, isn’t it?


44 posted on 10/16/2009 9:38:01 AM PDT by Huck ("He that lives on hope will die fasting"- Ben Franklin, Poor Richard's Almanac)
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To: Huck

Please add me to this ping list.

Tight lines bro.


45 posted on 10/16/2009 9:41:51 AM PDT by Vigilantcitizen
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To: Vigilantcitizen

OK my FRiend. I’ll have to compile an actual ping list.


46 posted on 10/16/2009 9:45:48 AM PDT by Huck ("He that lives on hope will die fasting"- Ben Franklin, Poor Richard's Almanac)
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To: Huck
-- The expansive view of the commerce clause derives from the Supreme Court. --

The expansive view started elsewhere, in particular with the president and Congress. Get rid of SCOTUS, and the president and Congress will retain the same illegitimate, expansive views of their own power.

The power of government lies, in large part, with the public's acceptance of the government as legitimate. My personal point of view is to take as illegitimate, decisions and assertions of force that are based on demonstrable fiction. I think the bulk of the federal government is illegitimate.

47 posted on 10/16/2009 9:48:50 AM PDT by Cboldt
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To: Huck
Raich sued.

Yep. Raich was NOT a defendant. She went to Court asking that they overrule Congress and enjoin the federal government from enforcing its own laws.

The Court declined her invitation to legislate from the bench.

Raich, who was known to have a history of purchasing drugs on the street, contended that she and her two anonymous drug suppliers would not let their future manufacture, distribution and sale become interstate in nature. Naturally she provided no guarantees for her self-serving prognostication.

That Thomas would let his opinion be controlled by such an absurd hypothetical does not speak to his credit in that decision.

As Scalia noted:

Drugs like marijuana are fungible commodities. As the Court explains, marijuana that is grown at home and possessed for personal use is never more than an instant from the interstate market–and this is so whether or not the possession is for medicinal use or lawful use under the laws of a particular State. Congress need not accept on faith that state law will be effective in maintaining a strict division between a lawful market for “medical” marijuana and the more general marijuana market.

48 posted on 10/16/2009 9:52:35 AM PDT by Mojave (Don't blame me. I voted for McClintock.)
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To: SoCal Pubbie
I'm thinking the poster means not irreversible in a 1776 sort of way.

That's fine. Along those lines, I refer you to this, from the Declaration of Independence:

That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.

Whenever any FORM of government becomes destructive to these ends. That is the question at hand. If it were merely a case of a bad administration acting with poor judgement, revolution would not be justified, especially when political solutions exist to remedy the problem.

It is when the FORM of government is at fault that revolution, peaceful or otherwise, is justified. What I am arguing is that it isn't the administration of our Constitution that is at fault--it is The Constitution. That as many good ideas as it may contain, it nevertheless contains several fatal errors that have been exposed over 200 years of experience.

Many of these flaws were known at the time to the antifederalists who opposed the Constitution. But the Federalists won. Now, having tested their product for 200+ years, I contend it isn't merely the people or the politicians that are to blame. The system itself is faulty.

And so I have been performing an autopsy on the Constitution, so that I might better understand its flaws. I'm sharing these thought on FR so that I can engage in discussion and debate on the subject, which I believe will improve my knowledge and understanding on the subject.

At some point, I will attempt to design a better system.

In the meantime, I can't believe 5 hours have gone screaming by! I have to pull myself away. I got up early just so I would have some time to spend on this, but I've already spent too much time on it. Thanks for your thoughts.

49 posted on 10/16/2009 9:56:00 AM PDT by Huck ("He that lives on hope will die fasting"- Ben Franklin, Poor Richard's Almanac)
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To: Mojave

Your entire post completely ignores the original meaning of the interstate commerce clause. You can’t even get to Scalia’s reasoning without accepting Wickard. And if you accept Wickard, you are by definition a liberal justice.


50 posted on 10/16/2009 9:57:56 AM PDT by Huck ("He that lives on hope will die fasting"- Ben Franklin, Poor Richard's Almanac)
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