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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: Huck
"A baseball team that is 20 games out of first place may mathematically still have a chance to win its division...The odds of them actually winning are virtually nil." Just don't like to admit you are wrong, huh???
51 posted on 10/16/2009 9:59:20 AM PDT by jessduntno (Tell Obama to STFU - Stop The Federal Usurpation.)
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To: Huck
Again, you're just being silly.

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.

52 posted on 10/16/2009 9:59:46 AM PDT by Brugmansian
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To: Mojave

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.


53 posted on 10/16/2009 9:59:48 AM PDT by Huck ("He that lives on hope will die fasting"- Ben Franklin, Poor Richard's Almanac)
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To: Cboldt
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 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.

54 posted on 10/16/2009 10:02:23 AM PDT by Huck ("He that lives on hope will die fasting"- Ben Franklin, Poor Richard's Almanac)
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To: Rockingham

Bravo! Well put, FRiend!


55 posted on 10/16/2009 10:05:39 AM PDT by Loud Mime (The time to water the tree of liberty approaches......)
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To: Huck
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.

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.

56 posted on 10/16/2009 10:06:41 AM PDT by Mojave (Don't blame me. I voted for McClintock.)
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To: Brugmansian; Huck

“Again, you’re just being silly.”

Sounds like a leftist tactic to me...when someone disagrees they are “silly” or “ill informed.”


57 posted on 10/16/2009 10:07:21 AM PDT by jessduntno (Tell Obama to STFU - Stop The Federal Usurpation.)
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To: Huck
-- 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. --

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.

58 posted on 10/16/2009 10:07:56 AM PDT by Cboldt
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To: Brugmansian
yes...its called being absurd to highlight absurdity.

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.

59 posted on 10/16/2009 10:09:03 AM PDT by Huck ("He that lives on hope will die fasting"- Ben Franklin, Poor Richard's Almanac)
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To: Huck

Haven’t read the full thing, but from the first several paragraphs...

BRAVO!!!

Well done.

Hope you don’t mind if I copy and paste it so I can read at work.


60 posted on 10/16/2009 10:11:15 AM PDT by Double Tap
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To: Cboldt

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.


61 posted on 10/16/2009 10:11:34 AM PDT by Huck ("He that lives on hope will die fasting"- Ben Franklin, Poor Richard's Almanac)
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To: Double Tap

Print it out. Go nuts :-) And please join in my ongoing discussions on this and related subjects.


62 posted on 10/16/2009 10:12:28 AM PDT by Huck ("He that lives on hope will die fasting"- Ben Franklin, Poor Richard's Almanac)
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To: Huck
The real quandary for Scalia was that the Controlled Substance Act itself doesn’t fit under any “originalist” intepretation of the interstate commerce clause.

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.


63 posted on 10/16/2009 10:15:08 AM PDT by Mojave (Don't blame me. I voted for McClintock.)
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To: Huck
-- Chicken or the egg arguments get tedious pretty fast. It is the Supreme Court which gives the Congress the constitutional authority to act. --

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.

64 posted on 10/16/2009 10:15:22 AM PDT by Cboldt
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To: Rockingham
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.

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.

65 posted on 10/16/2009 10:16:06 AM PDT by Huck ("He that lives on hope will die fasting"- Ben Franklin, Poor Richard's Almanac)
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To: Mojave

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.


66 posted on 10/16/2009 10:18:37 AM PDT by Huck ("He that lives on hope will die fasting"- Ben Franklin, Poor Richard's Almanac)
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To: Cboldt
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.

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!

67 posted on 10/16/2009 10:24:04 AM PDT by Bigun ("It is difficult to free fools from the chains they revere." Voltaire)
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To: Huck
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.

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.

68 posted on 10/16/2009 10:24:25 AM PDT by Mojave (Don't blame me. I voted for McClintock.)
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To: Mojave
In other words, they beg the question. They basically assume that anything that is involved in interstate commerce is subject to Congressional regulation. And then they establish that the substances they wish to control fall under the heading of interstate commerce.

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.

69 posted on 10/16/2009 10:25:36 AM PDT by Huck ("He that lives on hope will die fasting"- Ben Franklin, Poor Richard's Almanac)
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To: Mojave
Well, if you believe the commerce clause was intended and understood to mean when adopted that Congress had the power to make "all laws necessary and proper" for the regulation of any activity whatsoever so long as it was directly or indirectly connected to interstate commerce, than I can't help you.

You evidently ignored the section of my essay on the orginal meaning of the commerce clause.

70 posted on 10/16/2009 10:27:31 AM PDT by Huck ("He that lives on hope will die fasting"- Ben Franklin, Poor Richard's Almanac)
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To: Huck
That is why I argue that the problem is structural--the Federal Judiciary is too powerful

"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.
71 posted on 10/16/2009 10:29:42 AM PDT by Mojave (Don't blame me. I voted for McClintock.)
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To: Bigun; Cboldt
Congress and the Courts are in cahoots, against the constitution

Of course they are, as was predicted by those who opposed the Constitution.

72 posted on 10/16/2009 10:30:15 AM PDT by Huck ("He that lives on hope will die fasting"- Ben Franklin, Poor Richard's Almanac)
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To: Rockingham
Raich is yet another matter because it deals with the prohibition of marijuana, something that virtually all states and the federal government agree on

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.

73 posted on 10/16/2009 10:30:51 AM PDT by antiRepublicrat
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To: Huck
Well, if you believe the commerce clause was intended and understood to mean when adopted that Congress had the power to make "all laws necessary and proper" for the regulation of any activity whatsoever so long as it was directly or indirectly connected to interstate commerce, than I can't help you.

Is there a substantial trade among the states in illicit drugs?

You keep dodging that issue.

74 posted on 10/16/2009 10:31:16 AM PDT by Mojave (Don't blame me. I voted for McClintock.)
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To: Huck
In other words, they beg the question.

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.

75 posted on 10/16/2009 10:33:51 AM PDT by Mojave (Don't blame me. I voted for McClintock.)
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To: Mojave
You're arguing that the "Federal Judiciary is too powerful" while simultaneously demanding that it usurp powers explicitly delegated to Congress.

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.

76 posted on 10/16/2009 10:34:30 AM PDT by Huck ("He that lives on hope will die fasting"- Ben Franklin, Poor Richard's Almanac)
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To: Cboldt

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.


77 posted on 10/16/2009 10:34:39 AM PDT by antiRepublicrat
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To: Huck
I'm demonstrating that the Court is not a reliable instrument for restraining the expansion of federal power

The Court should not be a super-legislative body, making policy as it chooses. Congress makes policy.

78 posted on 10/16/2009 10:37:09 AM PDT by Mojave (Don't blame me. I voted for McClintock.)
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To: Mojave
I didn't beg any question. If you refer to section 2 of my essay, you will see my supporting facts for the original meaning of the commerce clause. Where are yours?

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.

79 posted on 10/16/2009 10:38:37 AM PDT by Huck ("He that lives on hope will die fasting"- Ben Franklin, Poor Richard's Almanac)
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To: Mojave
The Court should not be a super-legislative body, making policy as it chooses.

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.

80 posted on 10/16/2009 10:40:47 AM PDT by Huck ("He that lives on hope will die fasting"- Ben Franklin, Poor Richard's Almanac)
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To: antiRepublicrat

And also because when the SCOTUS gives extraconstitutional powers its blessing, the Congress has political cover.


81 posted on 10/16/2009 10:41:51 AM PDT by Huck ("He that lives on hope will die fasting"- Ben Franklin, Poor Richard's Almanac)
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To: Huck
In Raich the key to finding a liberal judge is to look at any discussion of whether marijuana is good or bad, whether the government has an "interest" in preventing its production or distribution. When they discuss that they are discussing personal desires and values. Whether it is good or bad in anyone's opinion is irrelevant to the constitutional issue of state sovereignty and interstate commerce. Congress and the state legislatures get to decide what's good or bad in their own spheres of influence, not judges.
82 posted on 10/16/2009 10:42:50 AM PDT by antiRepublicrat
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To: Rockingham
(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.

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.

83 posted on 10/16/2009 10:43:50 AM PDT by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
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To: Huck
And yet you rely on just that sort of case law in your arguments.

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.

84 posted on 10/16/2009 10:44:27 AM PDT by Mojave (Don't blame me. I voted for McClintock.)
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To: antiRepublicrat

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.


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

You're insane. Did you read the essay? I'm done with you.

86 posted on 10/16/2009 10:46:06 AM PDT by Huck ("He that lives on hope will die fasting"- Ben Franklin, Poor Richard's Almanac)
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To: Huck; Rockingham; Cboldt

Please see the bolded and underlined portion of post #67 and tell me what YOU think that means?


87 posted on 10/16/2009 10:47:20 AM PDT by Bigun ("It is difficult to free fools from the chains they revere." Voltaire)
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To: tacticalogic; Rockingham
What do you find in the commerce clause power that permits federal legislation of that ban in the first place?

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.

88 posted on 10/16/2009 10:48:34 AM PDT by Mojave (Don't blame me. I voted for McClintock.)
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To: Huck

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.

[crickets]


89 posted on 10/16/2009 10:49:45 AM PDT by Mojave (Don't blame me. I voted for McClintock.)
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To: Mojave

I meant to address #87 to you as well.


90 posted on 10/16/2009 10:50:00 AM PDT by Bigun ("It is difficult to free fools from the chains they revere." Voltaire)
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To: Bigun
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.

Supporters of an imperial judiciary would prefer that the limits on the appellate jurisdiction of the Supreme Court be forgotten.

91 posted on 10/16/2009 10:53:00 AM PDT by Mojave (Don't blame me. I voted for McClintock.)
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To: Bigun
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.

I think it means what it says. The Supreme Court's appellate jurisdiction is subject to Congressional exceptions and regulations.

92 posted on 10/16/2009 10:53:02 AM PDT by Huck ("He that lives on hope will die fasting"- Ben Franklin, Poor Richard's Almanac)
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To: Huck

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?


93 posted on 10/16/2009 10:55:28 AM PDT by Mojave (Don't blame me. I voted for McClintock.)
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To: Mojave
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.

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."

94 posted on 10/16/2009 11:00:31 AM PDT by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
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To: Mojave; Bigun; Cboldt
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?

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.

95 posted on 10/16/2009 11:03:18 AM PDT by Huck ("He that lives on hope will die fasting"- Ben Franklin, Poor Richard's Almanac)
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To: Mojave; Bigun; Cboldt

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.


96 posted on 10/16/2009 11:05:11 AM PDT by Huck ("He that lives on hope will die fasting"- Ben Franklin, Poor Richard's Almanac)
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To: Mojave; Huck; Rockingham; Cboldt
Next question:

When, if ever, has the congress exercised it's prerogatives granted by "with such exceptions, and under such regulations as the Congress shall make."?

97 posted on 10/16/2009 11:05:49 AM PDT by Bigun ("It is difficult to free fools from the chains they revere." Voltaire)
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To: Bigun

I don’t know the answer to that one. If you do know the answer, I’d love to hear it.


98 posted on 10/16/2009 11:06:31 AM PDT by Huck ("He that lives on hope will die fasting"- Ben Franklin, Poor Richard's Almanac)
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To: tacticalogic
"Nobody compelled them to ban it, they just aren't permitted to allow 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.

99 posted on 10/16/2009 11:06:41 AM PDT by Mojave (Don't blame me. I voted for McClintock.)
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To: Bigun

My guess would be not very often. One hand washes the other.


100 posted on 10/16/2009 11:07:17 AM PDT by Huck ("He that lives on hope will die fasting"- Ben Franklin, Poor Richard's Almanac)
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