The Commerce Clause, The Federal Judiciary, and Tyranny (or How Scalia Helped Screw America)

self | 10/15/09 | Huck

[SE Mom]

ping

[Huck]

I believe you are incorrect. The 9th circuit issued an injunction against the feds, but they did not try the case. It went directly to the SCOTUS.

[tacticalogic]

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.

No Ambassador, public Minister or Consul, or State was a party in Wickard v Filburn.

[TChris]

Allow me to stand up and say, "Stop it!"

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.

Enough!

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!

[Mojave]

No Ambassador, public Minister or Consul, or State was a party in Wickard v Filburn.

So?

[Rockingham]

If one reads the Supreme Court’s entire line of Commerce Clause cases, it becomes clear that long before Raich, the federal power included protection of freedom of commerce between the states and the prohibition of items and practices generally when they impact interstate commerce.

[tacticalogic]

No party::no precedence::no basis.

[Rockingham]

Congress can limit the jurisdiction of the Supreme Court. In practice, it has not done so because of the need to harmonize decisions by the federal courts and state courts as to federal law issues.

[Mojave]

The 9th circuit issued an injunction against the feds,

The complaint stated that John Ashcroft and Asa Hutchinson are "unconstitutionally exceeding their authority by embarking on a campaign of seizing or forfeiting privately-grown intrastate medical cannabis from California patients and caregivers, arresting or prosecuting such patients, mounting paramilitary raids against patients and caregivers, harassing patients and caregivers, and taking other civil or administrative actions against them."

The injunction was denied. The plaintiffs then filed an appeal with the United States Court of Appeals for the Ninth Circuit. The Court reversed the judgment, ruling that the government's actions were unconstitutional.

The U.S. government appealed this decision to the U.S. Supreme Court, changing the name of the case to Ashcroft et al. v. Raich et al.

Appealed and appealed again.

but they did not try the case.

Try the case? Raich wasn't a defendant.

[Mojave]

No party::no precedence::no basis.

English, please.

[Rockingham]

As Raich makes clear though, federal law can be enforced so as to ban marijuana within a state without regard to state law or whether the marijuana is nominally ‘intended’ for interstate commerce. This is because growing marijuana creates a commodity that can be readily put into interstate commerce.

[tacticalogic]

If one reads the Supreme Court’s entire line of Commerce Clause cases, it becomes clear that long before Raich, the federal power included protection of freedom of commerce between the states and the prohibition of items and practices generally when they impact interstate commerce.

Prior to Wickard all regulations and prohibitions were imposed on interstate transport via registered common carriers. These were considered subject to federal authority because they were authorized and protected as being part of the "channels of interstate commerce".

[Huck]

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. 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. Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security

[Rockingham]

I recall that there has been some Congressional tinkering with Supreme Court jurisdiction, but not to major effect. The far more consequential considerations are federal court jurisdiction and the cases and controversies permitted to be heard there.

[Mojave]

As Raich makes clear though, federal law can be enforced so as to ban marijuana within a state without regard to state law or whether the marijuana is nominally ‘intended’ for interstate commerce.

True.

[Huck]

What you’re referring to was a preliminary injunction.

[Rockingham]

That is simply not so. Again, there is no substitute for the dull and hard effort of a close reading of the entire line of Supreme Court Commerce Clause cases. The general trend is of the Court upholding increasingly expansive federal laws based on the Commerce Clause. Wickard is not a departure but a logical culmination.

[tacticalogic]

As Raich makes clear though, federal law can be enforced so as to ban marijuana within a state without regard to state law or whether the marijuana is nominally ‘intended’ for interstate commerce. This is because growing marijuana creates a commodity that can be readily put into interstate commerce.

The Founder's writings on the subject make it clear that this is not within the intent of the commerce clause.

Whether it could potentially be interstate commerce or not is irrelevant. There's virtuallly nothing that wouldn't meet that standard, and if you read the associated writings on the subject, it is clear that this is not the power the clause conveyed.

It is not subject to federal regulation until it actually enters the channels of interstate commerce, and then it was only intended that it be regulated to prevent trade disputes between the states.

[Huck]

Raich doesn't make anything clear. It merely affirmed Wickard, which said the federal government can prevent a farmer from growing his own WHEAT under the commerce clause. In effect, under this interpretation, the government can ban or control ANY commodity. Anyone who thinks that is what the commerce clause meant at ratification is insane.

It's a completely bogus interpretation, but one that Scalia chose to affirm.

[TChris]

OK, do you have a point, other than quoting the same men who created the Constitution you attack?

Where is your proposition for its replacement?

If you believe there is a better way, post it.

It's a far easier task to sit comfortably at home in the peace granted to you by the Constitution and criticize the precious work of men who willingly lost credibility, family, fortune and their very LIVES for what they created, when they are no longer around to defend it and answer your charges, than it is to build your own work and open it up to scrutiny.

You aren't WORTHY to criticize the Constitution!