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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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To: Mojave

The Embargo Act regulated commerce with foreign nations, not among the states. It had nothing to do with INTERSTATE commerce.


151 posted on 10/16/2009 12:43:12 PM PDT by Huck ("He that lives on hope will die fasting"- Ben Franklin, Poor Richard's Almanac)
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To: Rockingham
The states are not 'sovereign' but have some powers reserved to them within the federal system.

Actually it's the federal government that has some powers reserved to it.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
The federal government only gets those powers delegated by the Constitution. Remember, who's doing the delegating -- the states delegated (gave up for themselves) certain powers to the federal government, and they kept all others.

No system could survive in which one state could permit and enable what the federal government and other states categorically prohibit.

Why not? Nevada is doing just fine with prostitution legalized. California allowing pot has only hurt the pride of a powerful federal government, nothing else outside the state. Your example supposes a state would actually allow weaponized anthrax spores, etc. That's getting a bit into the crazy. It's like the anti-gunners saying "But you wouldn't want everyone to be allowed to have nuclear weapons, would you?"

152 posted on 10/16/2009 12:47:24 PM PDT by antiRepublicrat
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To: Huck
The Embargo Act regulated commerce with foreign nations, not among the states.

"To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes"
The Constitution doesn't make your invented distinction.
153 posted on 10/16/2009 12:47:31 PM PDT by Mojave (Don't blame me. I voted for McClintock.)
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To: Mojave
You're not the first ex or current beltway bureaucrat I've had a difference of agreement with, and you won't be the last.

When you work for the federal bureaucracy you have a vested interest in keeping people from ever questioning the legitimacy of the authority Congress tries to give it.

154 posted on 10/16/2009 12:51:08 PM PDT by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
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To: tacticalogic
Take a look at United States v. Wrightwood Dairy Co., 315 U.S. 110 (1942) and the cases cited there.
155 posted on 10/16/2009 12:53:18 PM PDT by Rockingham
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To: tacticalogic
You're not the first ex or current beltway bureaucrat I've had a difference of agreement with

You're not the first homeless drug addict with access to a library computer that I've dismantled in debate.

156 posted on 10/16/2009 12:53:31 PM PDT by Mojave (Don't blame me. I voted for McClintock.)
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To: Mojave

Those two earlier courts heard complaints for injunctive and declaratory relief. They didn’t decide on the case. Only on the “liklihood” that they would win their case. The case was decided in one court-—The Supreme Court.


157 posted on 10/16/2009 12:54:25 PM PDT by Huck ("He that lives on hope will die fasting"- Ben Franklin, Poor Richard's Almanac)
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To: Mojave

Really? Then under your interpretation of the Constitution, Congress can prohibit wheat farmers in ANY country from growing wheat. I think I already said I was done with you. I believe you just like to waste people’s time. And that is time I’ll never get back. May the Lord grant me the strength and wisdom to ignore you.


158 posted on 10/16/2009 12:56:36 PM PDT by Huck ("He that lives on hope will die fasting"- Ben Franklin, Poor Richard's Almanac)
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To: Huck
Those two earlier courts heard complaints for injunctive and declaratory relief. They didn’t decide on the case.

The District Court judgment denied Raich's request for injunction. The Ninth Circuit Court of Appeals reversed the District Court judgment. The Supreme Court heard the appeal.

What a strange dance you're doing.

159 posted on 10/16/2009 12:58:12 PM PDT by Mojave (Don't blame me. I voted for McClintock.)
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To: antiRepublicrat
The states delegated powers to the federal government, with the residual powers reserved to the states.

Of course, the powers delegated to the federal government were interpreted so expansively as overwhelm the balance originally intended between state and federal power. This is not simply a matter of judicial decisions but also of events and the desires of the American people.

160 posted on 10/16/2009 12:59:00 PM PDT by Rockingham
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To: Huck
Then under your interpretation of the Constitution, Congress can prohibit wheat farmers in ANY country from growing wheat.

You mean like Thomas Jefferson's embargo on foreign goods?

161 posted on 10/16/2009 1:00:13 PM PDT by Mojave (Don't blame me. I voted for McClintock.)
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To: Bigun
-- When, if ever, has the congress exercised it's prerogatives granted by "with such exceptions, and under such regulations as the Congress shall make."? --

The Military Commissions Act aimed to "court strip" certain habeas corpus cases.

162 posted on 10/16/2009 1:01:42 PM PDT by Cboldt
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To: Mojave

You got banned once for saying I was a self-admitted pedophile. Do we need to do that dance again?


163 posted on 10/16/2009 1:02:28 PM PDT by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
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To: tacticalogic
You got banned once for saying I was a self-admitted pedophile.

I'm banned? Odd, I thought I was here.

164 posted on 10/16/2009 1:03:37 PM PDT by Mojave (Don't blame me. I voted for McClintock.)
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To: Huck
-- even when it is the court, through its appellate role, that is expanding the meaning of the Constitution through judicial activism, the Congress, possessing regulatory power over them in this regard, is an aider and abettor. --

My point was not that. It's that Congress itself is the instigator of the over-reach against the Commerce Clause. It is the Congressional enactment that is offensive to the constitution in the first place.

I don't contend that Congress might or should "regulate" the Courts into a position that causes the courts to lack jurisdiction over a Congressional enactment that over-reaches the Commerce Clause.

Again, you were looking for an accountable body, where accountability was through voter reaction. That exists today, as Congress is accountable to the voter for passing laws that exceed the Commerce Clause. If Congress takes those laws off the books, there won't be anything for an unaccountable Court to uphold.

165 posted on 10/16/2009 1:07:46 PM PDT by Cboldt
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To: Rockingham
Take a look at United States v. Wrightwood Dairy Co., 315 U.S. 110 (1942) and the cases cited there.

Wickard was in 1939, this was in 1942, so this was not prior to Wickard.

166 posted on 10/16/2009 1:08:20 PM PDT by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
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To: Mojave

OK. You were suspended. Do you we need to do that dance again?


167 posted on 10/16/2009 1:10:11 PM PDT by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
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To: tacticalogic

When the facts are against you, pound on the law. When the law is against you, pound on the facts. When both are against you, piss and moan.

Poor you.


168 posted on 10/16/2009 1:14:10 PM PDT by Mojave (Don't blame me. I voted for McClintock.)
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To: TChris; Huck; All
The Constitution was inspired by God.

I have been enjoying this very learned debate--one far over my knowledge and ability to participate in--with no intention whatsoever to say a thing until I came upon that quote from TChris.

Now, TChris, if you are a mormon, it is part of your religion that the Constitution is Divinely inspired. You're wrong, but that's part of your religion. However, my immediate concern is the dangerous relativism and henotheism of someone declaring any one nation's charter--other than Israel's (and I mean the Jewish People, not the State)--as "inspired by G-d." If the Constitution is "inspired by G-d" perhaps it should be adopted by every nation on earth. And if it is not good enough or fit to be universal, perhaps you mean it is inspired by the American "gxd" and constitutes "the truth" for our country. Is there then a separate "truth" for every country in the world? Just how many "truths"--and how many "gxds"--are there?

My own political ancestry is strictly Federalist via Southern Unionist Republicans during the Civil War, but I certainly have never claimed the Constitution was perfect or "inspired by G-d" (hence my interest in following this conversation). This deviates from theories of government into theology and is nothing more than a form of polytheism: America's Constitution is "inspired by G-d," Ethiopia is ruled by the Solomonic dynasty, J*sus personally descended and struck the soil of Armenia with a hammer, etc. All human created systems of government--and our own system is very much human-created--are imperfect. Perhaps the Constitution is indeed very much worthy of defense as you say, but calling it "inspired by G-d" was either a clumsy bit of exaggeration, an assertion of LDS doctrine, or else just plain horrifying.

As I said, I am of Federalist political ancestry myself and am the furthest thing away from libertarian that one can be. But there are no separate "gxds" or scriptures or religious truths for all the various nations. There is One G-d and One Truth. I have long noticed this henotheistic tendency in American conservatism (and its even worse in the conservatisms of other countries), and I simply had to respond to TChris' comment. Doubtless my point will be misunderstood by all.

We now return to the debate in which I sincerely hope I will not interpose again.

169 posted on 10/16/2009 1:16:11 PM PDT by Zionist Conspirator (Bere'shit bara' 'Eloqim 'et hashamayim ve'et ha'aretz.)
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To: Huck

Excellent!


170 posted on 10/16/2009 1:19:32 PM PDT by Lancey Howard
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To: Rockingham
This is not simply a matter of judicial decisions but also of events and the desires of the American people.

If the American people wished to change the distribution of powers, they had a mechanism to do that in constitutional amendment. Any other mechanism is by definition illegal.

171 posted on 10/16/2009 1:22:59 PM PDT by antiRepublicrat
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To: tacticalogic

Not so. Wickard was decided in 1942, not long after Wrightwood Dairy.


172 posted on 10/16/2009 1:27:01 PM PDT by Rockingham
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To: Mojave

You’re good at implicit denials. That’s not a virtue.


173 posted on 10/16/2009 1:27:35 PM PDT by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
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To: tacticalogic
You’re good at implicit denials.

You're transparently bad at changing the subject and running for cover.

BTW, the 1895 Federal Anti-Lottery Act was a law, not an court decision. Let me know when you're ready to retract your "registered common carrier" falsehood.

And while we're at it:

Florida has no state income tax. Florida residents are still subject to the federal income tax.

The federal government has no general sales tax. Florida residents are still subject to the state's sales tax when they make their purchases.

Address it if you ever work up the nerve.

174 posted on 10/16/2009 1:33:33 PM PDT by Mojave (Don't blame me. I voted for McClintock.)
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To: Rockingham
Wickard was decided in 1942, not long after Wrightwood Dairy

Ya gotta watch him.

175 posted on 10/16/2009 1:34:51 PM PDT by Mojave (Don't blame me. I voted for McClintock.)
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To: antiRepublicrat

At some point though, settled facts and the passage of time bestow legitimacy on what might have once been seen as illegal or unconstitutional.


176 posted on 10/16/2009 1:36:10 PM PDT by Rockingham
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To: Huck; 11th Commandment; 17th Miss Regt; 2001convSVT; 2banana; 2ndDivisionVet; A_Former_Democrat; ...
Thanks for the essay Huck.

Great discussion here re the likely misapplication of the "commerce" clause and its impact on the sovereignty of The States and The People.

Side note if you have the time, check out my slideshow here that is illustrative of the America many of us old fogies once knew:

NORMAN ROCKWELL'S O, AMERICA


177 posted on 10/16/2009 1:36:21 PM PDT by ForGod'sSake (You have two choices and two choices only: SUBMIT or RESIST with everything you've got!)
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To: Rockingham
Not so. Wickard was decided in 1942, not long after Wrightwood Dairy.

I don't have access to the case details from here, but I'll look into it.

If it is prior to Wickard, it is not by much, and basically involves the same federal expansion of power under the New Deal Commerce Clause as Wickard.

I question the motives of anybody claiming to be a political conservative while defending that doctrine and that interpretation of the Constitution.

178 posted on 10/16/2009 1:41:33 PM PDT by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
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To: Huck
I presume you've done a good deal of research relating to original intent, etc; do you get a feel for what the Founders may have been thinking re the ability of The States to counter this apparent out-of-balance arrangement?
179 posted on 10/16/2009 1:42:32 PM PDT by ForGod'sSake (You have two choices and two choices only: SUBMIT or RESIST with everything you've got!)
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To: Mojave
You're transparently bad at changing the subject and running for cover.

You can defend the "elastic" interpreation of the commerce clause all you want, and revel in the vast expanse of federal authority it's produced.

I'll watch while everone figures out you're part of the problem.

180 posted on 10/16/2009 1:44:34 PM PDT by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
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To: Huck
-- What you’re referring to was a preliminary injunction. --

SCOTUS heard Raich on an appellate basis. Raich did not take her case originally yo SCOTUS, which is what is meant by "original jurisdiction."

Contra, Marbury v. Madison, taken directly to SCOTUS, was dismissed by Marshall on the grounds the SCOTUS lacked original subject matter jurisdiction over that type of case, according to the terms of the constitution.

181 posted on 10/16/2009 1:44:46 PM PDT by Cboldt
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To: tacticalogic
You can defend the "elastic" interpreation of the commerce clause all you want

There is a massive trade among the states in marijuana, your dishonesty and love of judicial legislation notwithstanding.

182 posted on 10/16/2009 1:49:38 PM PDT by Mojave (Don't blame me. I voted for McClintock.)
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To: Mojave

You keep on defending the New Deal, and trying to convince everyone it’s “just the pot”. I’ll watch.


183 posted on 10/16/2009 1:51:24 PM PDT by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
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To: tacticalogic
Here is the text of the case:

http://altlaw.org/v1/cases/383518

Look at paragraph 10, especially.

Getting the facts right, even unpalatable ones, is the essence of conservatism.

184 posted on 10/16/2009 1:54:31 PM PDT by Rockingham
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To: Zionist Conspirator

I didn’t know that about Mormons.


185 posted on 10/16/2009 1:55:38 PM PDT by Huck ("He that lives on hope will die fasting"- Ben Franklin, Poor Richard's Almanac)
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To: tacticalogic
You keep on defending the New Deal

Backwards. You're the cheerleader for judicial legislation.

How ya coming with that "registered common carrier" lie, BTW? Will you finally retract it or just play dead until you post it again?

186 posted on 10/16/2009 1:56:01 PM PDT by Mojave (Don't blame me. I voted for McClintock.)
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To: Huck
I didn’t know that about Mormons.

They believe both the Declaration of Independence and the Constitution are Divinely inspired. I don't know about the amendments.

Historically, each nation invests its founding with religious significance and its founders with religious authority. The US came along a little late, but the mormons (and some other Conservatives, apparently) still get in on the game.

This is an interesting discussion, which I'll have to return to later.

187 posted on 10/16/2009 1:58:42 PM PDT by Zionist Conspirator (Bere'shit bara' 'Eloqim 'et hashamayim ve'et ha'aretz.)
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To: Rockingham

“Competitive practices which are wholly intrastate may be reached by the Sherman Act, 15 U.S.C.A. §§ 1—7, 15 note, because of their injurious effect on interstate commerce. Northern Securities Company v. United States, 193 U.S. 197...”

Hmmm. March 14, 1904.


188 posted on 10/16/2009 1:58:59 PM PDT by Mojave (Don't blame me. I voted for McClintock.)
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To: Zionist Conspirator
I sometimes find myself thinking that the founders were divinely inspired, but that may just be due to the fact that after 200 yrs of de-evolution, they SEEM like demigods.

I have to think if the framers were around today, they could find a lot of things to do differently. The best I can do is think for myself and try to think of some changes on my own.

189 posted on 10/16/2009 2:02:33 PM PDT by Huck ("He that lives on hope will die fasting"- Ben Franklin, Poor Richard's Almanac)
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To: Huck
I believe in the case of Raich, the SCOTUS had original jurisdiction, if I am correctly interpreting the Attorney General, who was the defendant, to be a "public consul." It went directly to the Supreme Court. Pot has nothing to do with jurisdiction. It has to do with who or what is a party to the case.

"Public consuls" means foreign diplomats. The Raich case was not within the Supreme Court's original jurisdiction; it was an appeal from the Ninth Circuit decision which was in turn an appeal from the U.S. District Court for the Northern District of California.

190 posted on 10/16/2009 2:03:57 PM PDT by Lurking Libertarian (Non sub homine, sed sub Deo et lege)
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To: Mojave

Keep diggin that hole, Roscoe.


191 posted on 10/16/2009 2:13:25 PM PDT by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
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To: Rockingham
Getting the facts right, even unpalatable ones, is the essence of conservatism.

Is it fact that this case in an exercise in expansion of federal power under the New Deal "substantial effects" doctrine?

192 posted on 10/16/2009 2:15:34 PM PDT by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
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To: tacticalogic

?


193 posted on 10/16/2009 2:18:27 PM PDT by Rockingham
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To: Rockingham

Did you not understand the question?


194 posted on 10/16/2009 2:22:58 PM PDT by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
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To: tacticalogic
Which case are you referring to?
195 posted on 10/16/2009 2:29:58 PM PDT by Rockingham
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To: Huck
“Regulate” meant to make regular. As I recall, some aspects of Louisiana statutes are based on Napoleonic law, while the rest of the US is based on common law. To the extent that this affects privileges and immunities of the individual citizen, it is not “regular.” I believe there were also issues about an articulated banking and commercial systems among the various states. Those needed to be “regulated” or made regular so the systems were mutually compatible and goods and services could flow freely.
196 posted on 10/16/2009 2:38:05 PM PDT by marsh2
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To: tacticalogic

Don’t get into trouble while you’re at the library monitor inventing your “facts”.


197 posted on 10/16/2009 2:40:50 PM PDT by Mojave (Don't blame me. I voted for McClintock.)
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To: Rockingham

You know, the 1904 “New Deal” case.


198 posted on 10/16/2009 2:41:48 PM PDT by Mojave (Don't blame me. I voted for McClintock.)
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To: Rockingham
Which case are you referring to?

Your Wrightwood Dairy case. Is this really a case of the USSC having established historical precendent for the "substantial effects" doctrine precedent before Wickard and the New Deal, or is it essentially concurrent with that decision and involving essentially the same principals?

199 posted on 10/16/2009 2:42:59 PM PDT by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
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To: Mojave
You know, the 1904 “New Deal” case.

Keep digging Roscoe. Deny there is such a thing as the New Deal Commerce Clause and the "substantial effects doctrine", and keep trying to change the subject. I'll watch while everyone figures out why somebody would try to do that.

200 posted on 10/16/2009 2:46:47 PM PDT by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
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