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
click here to read article
Well, whoah, we don’t want the ICClause “blotted out.” We want it properly penned in as originally intended, no?
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.
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.
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?
Please add me to this ping list.
Tight lines bro.
OK my FRiend. I’ll have to compile an actual ping list.
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.
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 marketand 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.
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.
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.
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.
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