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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yes...its called being absurd to highlight absurdity. You made Scalia the point of your essay, you knocked him in the headline for one reason: to get people to read what you wrote. There is a name for those who do that.
So I did read your post. And now I've finished with it.
The real quandary for Scalia was that the Controlled Substance Act itself doesn’t fit under any “originalist” intepretation of the interstate commerce clause. So he adopted the New Deal era interpretation, so he could reach the end result he personally desired.
The difference, of course, is that the president and the Congress are accountable to the people. They must face the ballot box. And their mistakes are much more easily reversed, through new legislation. Supreme Court decisions, and the reliance of the Court on stare decisis, are much more difficult to reverse. And the justices themselves are totally unaccountable. Therefore, if I get to choose who gets the final say, an unaccountable court, or an accountable legislature, I'll take my chances with the legislature.
Bravo! Well put, FRiend!
Nonsense. Raich provided NO substantiation for her assertion that her drug dealing would be entirely intrastate in nature.
You want the court to legislate from the bench based on her absurd hypothetical. You can't go more hardcore left than that.
And if you accept Wickard, you are by definition a liberal justice.
Have you ever read it? If so, perhaps you could explain how a judicially invented Marketing Card entitlement should theoretically work.
“Again, you’re just being silly.”
Sounds like a leftist tactic to me...when someone disagrees they are “silly” or “ill informed.”
You have your wish, as far as the Commerce clause goes. The Court has upheld Congressional enactments. Get rid of the enactments, and the Courts would have nothing to uphold.
How original /s
You made Scalia the point of your essay,
Incorrect. My essay was clearly structured in three sections, in a logical order. 1) The power of the judiciary is too expansive 2) The commerce clause is the finest example of this fact 3) If you're counting on conservative justices to save us, think again.
you knocked him in the headline for one reason: to get people to read what you wrote.
Again, incorrect. I included him in the headline in part to draw attention to the essay-- I used the wording I used in a provactive way. There is nothing wrong with that. If you have something to say and you want to be heard, you try to grab people's attention. You don't think El Rushbo does the same thing every day? So the wording of the title is designed to draw attention, but his inclusion in the headline is not random. It's substantive.
Scalia is in the headline because the title of the essay follows the afformentioned structure of the essay: 1)Fed Judiciary 2)Commerce Clause 3)Even a Scalia can't/won't save us from 1 and 2.
Haven’t read the full thing, but from the first several paragraphs...
Hope you don’t mind if I copy and paste it so I can read at work.
Chicken or the egg arguments get tedious pretty fast. It is the Supreme Court which gives the Congress the constitutional authority to act. The question of how to resolve such inteprative controversies remains for another day.
Print it out. Go nuts :-) And please join in my ongoing discussions on this and related subjects.
You're inventing your unsupported "facts", just like Raich did. Let's look some of the actual Congressional findings underlying the act.
The Congress makes the following findings and declarations:
(1) Many of the drugs included within this subchapter have a useful and legitimate medical purpose and are necessary to maintain the health and general welfare of the American people.
(2) The illegal importation, manufacture, distribution, and possession and improper use of controlled substances have asubstantial and detrimental effect on the health and general welfare of the American people.
(3) A major portion of the traffic in controlled substances flows through interstate and foreign commerce. Incidents of the traffic which are not an integral part of the interstate or foreign flow, such as manufacture, local distribution, and possession, nonetheless have a substantial and direct effect upon interstate commerce because -
(A) after manufacture, many controlled substances are transported in interstate commerce,
(B) controlled substances distributed locally usually have been transported in interstate commerce immediately before their distribution, and
(C) controlled substances possessed commonly flow through interstate commerce immediately prior to such possession.
(4) Local distribution and possession of controlled substances contribute to swelling the interstate traffic in such substances.
(5) Controlled substances manufactured and distributed intrastate cannot be differentiated from controlled substances manufactured and distributed interstate. Thus, it is not feasible to distinguish, in terms of controls, between controlled substances manufactured and distributed interstate and controlled substances manufactured and distributed intrastate.
The authority for each/either to act is in the constitution. You were looking for the "final authority," and I am pointing out that Congress can reverse what it enacted, and thereby -IS- the final authority, as far as commerce clause encroachments go. That the Courts go along with it does not make Congress any less accountable for being the "final authority" on the subject.
-- The question of how to resolve such interpretive controversies remains for another day. --
I think the question has been asked and answered. As between the people and the government, EVERYTHING bottoms out on the perception of legitimacy and the willingness to use extreme violence.
He's willing to when it suits him, not willing to when it doesn't. But forget Scalia. The larger point you make is one that supports my thesis. The Court's application of stare decisis (nowhere to be found in the Constitution itself) makes their decision all the more damaging, as the antifederalists pointed out at the time. Precedent upon precedent, etc.
That is why I argue that the problem is structural--the Federal Judiciary is too powerful, extends over too large a jurisdiction,and is unaccountable. In short, Article 3 was a mistake.
The question is not whether the controlled substances are involved in interstate commerce. The question is where the Congress derives its power to control substances.
Ding! Ding! Ding!
We have a winner here!
From the U.S. Constitution:
Section 1. The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.
Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.
In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
The bolded and underlined part has been completely forgotten it seems to me!
Wrong again. The question is where the Congress derives its power to control substances that are part of the flow of interstate commerce.
The answer to that is simple: The Commerce Clause.
The interstate trade in illicit drugs is huge. Try to refute that.
That's not what the commerce clause meant when it was drafted. The Congress based its assumption of authority over any and all things directly or indirectly involved in interstate commerce on liberal readings of the commerce clause in the Federal courts. It's much easier than amending the Constitution.
So with the help of the courts, the Congress establishes that there is nothing under the sun it can't regulate, as long as it is interstate commerce, or related to intersate commerce, or as long as their is a rational basis for thinking it might have a substantial effect on interstate commerce, and Scalia goes along with it. It's ludicrous.
Refer to the actual meaning of the commerce clause at the time it was drafted.
You evidently ignored the section of my essay on the orginal meaning of the commerce clause.
"What is this power? It is the power to regulate, that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution." --Gibbons v. Ogden, 22 U.S. 1 (1824)You're arguing that the "Federal Judiciary is too powerful" while simultaneously demanding that it usurp powers explicitly delegated to Congress. You're also implicitly calling for the Court to operate without the limitations on its appellate jurisdiction set out in the Constitution.
Of course they are, as was predicted by those who opposed the Constitution.
But not all, thus violating the sovereignty of the state that doesn't want to prohibit it. If California wants to be the state that attracts all the stoners, then so be it. That's within the power of the people of California.
Is there a substantial trade among the states in illicit drugs?
You keep dodging that issue.
No, they set out findings of fact that you haven't been able to refute in any particular.
They basically assume that anything that is involved in interstate commerce is subject to Congressional regulation.
Your statement just begged the question. Ironic.
Incorrect. I'm demonstrating that the Court is not a reliable instrument for restraining the expansion of federal power; that in fact it is a consistent agent of federal expansion of power.
You are now begging the question of what power the commerce clause conferred on Congress. It apparantly doesn't mean what it meant. It means whatever you or the Court or Congress wants it to mean, and apparantly you're ok with that.
The commerce clause was understood to mean something specific and limited, not something universal and all-encompassing. The fact that you embrace such an absurd construction is telling.
Congress also likes the Court’s power because politicians can grandstand on passing laws that they know are unconstitutional, and then blame the Court when they are overturned.
The Court should not be a super-legislative body, making policy as it chooses. Congress makes policy.
The CSA relies on supreme court jurisprudence which, I also demonstrate in my essay, was faulty. YOU are the one begging the question. In order for the question of a substance having a "substantial effect" on interstate commerce to be relevant, you must first demonstrate that the commerce clause was intended to confer on Congress the power to regulate all activity directly or indirectly connected to commerce.
So, prove it. Or else it is YOU who is begging the question. Show me the founding father who comprehended the commerce clause in such a way. Refute my quotes above from James Madison on the subject.
And yet you rely on just that sort of case law in your arguments. Hilarious.
Congress makes policy.
Indeed. I agree. The question that arises, then, is what check is there, in our system, to prevent the Congress or any branch of the fed gov from expanding its power beyond the intended limits. I intend to find an answer for that one at a later date.
And also because when the SCOTUS gives extraconstitutional powers its blessing, the Congress has political cover.
What do you find in the commerce clause power that permits federal legislation of that ban in the first place? At most, it empowers the federal government to prohibit it's interstate transport via registered common carriers.
False, quoteless, sourceless. Lame.
The question that arises, then, is what check is there, in our system, to prevent the Congress or any branch of the fed gov from expanding its power beyond the intended limits.
And you beg the question once again. There is a huge trade among the states in illicit drugs. The assertion that there is or was some secret and unstated intention that Congress should be prevented from regulating that trade is unsubstantiated and without merit.
The liberals (plus Scalia) all sided with the Feds—against California and against the marijuana user. It was only Rehnquist, OConnor, and Thomas who dissented. A very strange and revealing case. I remember when it came down.
You're insane. Did you read the essay? I'm done with you.
Please see the bolded and underlined portion of post #67 and tell me what YOU think that means?
States are free to restrict the drug trade or not, as they please. Neither the Raich decision or federal laws compel the states to ban drugs.
There is a huge trade among the states in illicit drugs. The assertion that there is or was some secret and unstated intention that Congress should be prevented from regulating that trade is unsubstantiated and without merit.
I meant to address #87 to you as well.
Supporters of an imperial judiciary would prefer that the limits on the appellate jurisdiction of the Supreme Court be forgotten.
I think it means what it says. The Supreme Court's appellate jurisdiction is subject to Congressional exceptions and regulations.
So if Congress foreclosed an activist court from legalizing pot by judicial decree by limiting the appellate jurisdiction of the Court, that would satisfy you?
That's the kind of semantic gymnastics you get from the libeal bureaucrats and politicins in DC when they do something they can claim they're not doing.
"Nobody compelled them to ban it, they just aren't permitted to allow it."
At a glance, yes. My interest is first and foremost in controlling and reducing federal power, which has stretched far beyond its intended limits--and that includes the commerce clause, which was a very simple and uncontroversial power as understood at the time. It did not empower Congress to regulate all things related to commerce. I laid that out in my essay. What belongs to the states should be left to the states.
Bigun raises a good point, and it speaks to Cboldt's contention that Congress is the originator of extraconstitutional activity, in that, 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. I'll have to think on it. It's a good point.
However, that bolded section appears to only apply to appellate jurisdiction. That means they could still expand the powers of the national government in all cases where they possess original jurisdiction.
When, if ever, has the congress exercised it's prerogatives granted by "with such exceptions, and under such regulations as the Congress shall make."?
I don’t know the answer to that one. If you do know the answer, I’d love to hear it.
Wrong again. They can allow it or disallow it under state law, as they choose. Just as the federal government can allow it or disallow it under federal law, as they choose.
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.
When you get to High School, see if you can take a Civics Class.
My guess would be not very often. One hand washes the other.