Skip to comments.The Commerce Clause, The Federal Judiciary, and Tyranny (or How Scalia Helped Screw America)
Posted on 10/16/2009 8:29:12 AM PDT by Huck
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I was asking more about the interstate commerce aspects, getting to where that individual mandate would be without Wickard. This question to Kagan is related to my question:
Funny that she could not answer it. What would Madison say?
Senator, your question is absurd political posturing.
Senator, didn't you and your colleagues pass an Orwellian law mandating that Americans could not buy catfish from Vietnam? Haven't you banned the importation of Haggis for the last two decades? Didn't you ban the beverage absinthe for nearly a century? Don't you ban fresh tuna from use as sashimi? Isn't Casu Marzu cheese banned in the United States? Isn't wild caviar prohibited by federal law?
In California, isn't horse meat illegal, Senator? Would you have me strike down the state law as a violation of the "substantive due process" rights of Americans to eat whatever they want? There used to be a time when self-proclaimed "Constitutionalists" rejected such legislating from the bench.
Finally, Senator, the court decides cases, not issues. Frankly, I'm appalled that someone in your position didn't recognize that.
That underestimates Scalia.
I was kidding around. More to your point, has the court ever decided a law was not constitutional because it was unnecessary or improper?
The Court went on to warn that "Should Congress, in the execution of its powers, adopt measures which are prohibited by the Constitution, or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the Government, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land."
At most, Scalia was planting the seed of a potential revision in commerce clause doctrine.
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