“Last, I will argue that the harm created through Commerce Clause jurisprudence appears irreversible...”
Absolutely not irreversible...
Thomas is still the best Justice on the Court, nothing new there.
The Commerce Clause is about to be severely tested by the current Administration, Senate and Congress in whether they can impose their health care laws upon the states. I consider that they do not have this right.
Scalia is the wrong target.
Scalia jumped the shark for me in this decision, and it also confirmed Thomas as the best justice, if not perfect himself (he went with Congress stretching “limited times” of copyright beyond belief).
The greatest growth in this country’s influence and economy came when we were following the Constitution as written, before the New Deal era and following extension of the Commerce Clause and discarding the Tenth Amendment.
It will be extremely difficult to reverse, since reversal will mean undoing Social Security, Medicare, the EPA, the Department of Education, etc., etc. Desirable? Yes. Possible? It will take a President willing to veto any bill that violates those principles in which we believe and to appoint judges and Justices who will do the same.
This wasn’t a popular position in law school, but it is the only real reading of the Constitution to me.
Have you given any thought to how this case compares with the states who want to sell guns made within that state thereby exempting those sales from federal control?
It's Scalia's fault!
Maybe Sarah Palin, Ronald Reagan, Ann Coulter, William F. Buckley, Russel Kirk and Newt Gingrich had a hand in it too. I dunno. It's possible. Conservatives are always at fault. Even when liberals do it.
(1) The protection of interstate commerce was a key reason for the creation of the Constitution. Under the Confederation, the separate states erected trade and tariff barriers that strangled commerce between the states. Without the Constitution and the Commerce Clause power to prevent that, the United States would have been vastly poorer and weaker.
(2) The differences between Scalia and Thomas on the Commerce Clause stem from larger philosophical differences in their understanding of originalism.
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. Thomas, a more stringent originalist than Scalia, is willing to reverse decisions that he sees as wrongly decided no matter how long settled those decision are.
Yet even when Scalia and Thomas are united, as they often are, they are but two votes on a nine member Court.
(3) In 19th Century America, Congress applied the Commerce Clause power more expansively so as to spur and protect the development of internal commerce and communications. Otherwise, every railroad, telegraph line, shipping company, and so on would have been exposed to the parochial and often predatory and corrupt enactments of state and local governments. This is squarely within the ambit of the original intent of the Commerce Clause power.
(4) The use of the Commerce Clause power as the constitutional basis for the New Deal federal welfare and regulatory state is another matter. A principled opposition to that expansion and an effort to reverse it are consistent with the philosophy of Scalia and Thomas.
(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.
thank you Huck
you dashed this off?
why can’t we have you somewhere in government?
or, are you.....maybe you better not say.
Please add me to this ping list.
Tight lines bro.
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.
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.
The Constitution gives Congress the power to tax, spend, borrow, and regulate, which they will continue to expand as much as they can. It will probably require some new amendments to limit it.
Once again, a very thought-provoking and interesting piece of writing.
Stop attacking the Constitution!
You go on and on with your analysis, bringing out centuries-old arguments which have already been hashed out by the Founding Fathers, striving to discredit and undermine their work.
The war has been waged, the arguments raised and debated, and far better men than you or I have settled the matter.
The Constitution was inspired by God. It is OVERWHELMINGLY the best document of its kind in the history of government. The Founding Fathers themselves realized and acknowledged that it is not perfect, and that it is IMPOSSIBLE to write law comprehensive enough and strong enough to account for and prevent every cunning and evil concept which could arise. That fact notwithstanding, it is a MAGNIFICENT work and has profoundly contributed to the blessing, prosperity and peace of the entire world.
Neither the Commerce Clause, nor any other part of the Constitution are to blame in any degree for the evils of men and their propensity for tyranny. To suggest such is no different than blaming a weapon for the violence of him who wields it.
I call upon ALL FReepers to rise up and DEFEND the Constitution! REVERE it! HONOR it!
And for the love of all that is right, please cease this corrosive criticism of that beloved document!
That darn Thomas Jefferson and the Embargo Act of 1807!
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: