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To: Rurudyne; John Valentine; All
"None. There is no delegated power given the federal to regulate commerce within a State (commerce only within a State that is not interstate commerce but only affects interstate commerce is still not interstate commerce) agriculture or manufacturing."

Good work Rurudyne!

Regardless what FDRs activist justices wanted everybody to think about Congresss Commerce Clause powers (1.8.3), a previous generation of state sovereignty-respecting justices had clarified that the states have never delegated to the corrupt feds, expressly via the Constitution, the specific power to regulate INTRAstate commerce.

”State inspection laws, health laws, and laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c. are not within the power granted to Congress [emphases added].” - Gibbons v. Ogden, 1824.

Regarding agriculture, state sovereignty-respecting justices had likewise clarified that the states have never constitutionally delegated to the feds the specific power to regulate INTRAstate agricultural production.

”From the accepted doctrine that the United States is a government of delegated powers, it follows that those not expressly granted, or reasonably to be implied from such as are conferred, are reserved to the states, or to the people. To forestall any suggestion to the contrary, the Tenth Amendment was adopted. The same proposition, otherwise stated, is that powers not granted are prohibited. None to regulate agricultural production is given, and therefore legislation by Congress for that purpose is forbidden [emphasis added].” - United States v. Butler, 1936.

On the other hand, FDRs thug justices had addressed manufacturing when they essentially treated 10th Amendment-protected state powers as a wives tale when they wrongly decided Wickard v. Filburn in corrupt Congresss favor imo.

”In discussion and decision, the point of reference, instead of being what was ”necessary and proper” to the exercise by Congress of its granted power, was often some concept of sovereignty thought to be implicit in the status of statehood. Certain activities such as ”production,” ”manufacturing,” [emphases added] and ”mining” were occasionally said to be within the province of state governments and beyond the power of Congress under the Commerce Clause.” - Wickard v. Filburn, 1942.

46 posted on 12/15/2015 4:23:49 PM PST by Amendment10
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To: Amendment10
About the attitudes of people who celebrate the FDR era and who think its judgments are correct ... I refer to this as magical thinking: the belief that for the first 150 years of the Republic that they'd got the Constitution all wrong but once FDR and that Court came along, and did a 180 on so much, they are deemed to have preserved the Constitution.

Essentially it is a belief that apostasy comes first and faithfulness later.

BTW, about Butler: despite the fact that the full weight of Justice Robert's opinion would seem to fall against the idea of general power, nevertheless there is this critical piece of convoluted and reprehensible rhetorical shenanigans to deal with:

Since the foundation of the Nation, sharp differences of opinion have persisted as to the true interpretation of the phrase. Madison asserted it amounted to no more than a reference to the other powers enumerated in the subsequent clauses of the same section; that, as the United States is a government of limited and enumerated powers, the grant of power to tax and spend for the general national welfare must be confined to the enumerated legislative fields committed to the Congress. In this view, the phrase is mere tautology, for taxation and appropriation are, or may be, necessary incidents of the exercise of any of the enumerated legislative powers. Hamilton, on the other hand, maintained the clause confers a power separate and distinct from those later enumerated, is not restricted in meaning by the grant of them, and Congress consequently has a substantive power to tax and to appropriate, limited only by the requirement that it shall be exercised to provide for the general welfare of the United States. Each contention has had the support of those whose views are entitled to weight. This court has noticed the question, but has never found it necessary to decide which is the true construction. Mr. Justice Story, in his Commentaries, espouses the Hamiltonian position. We shall not review the writings of public men and commentators or discuss the legislative practice. Study of all these leads us to conclude that the reading advocated by Mr. Justice Story is the correct one. While, therefore, the power to tax is not unlimited, its confines are set in the clause which confers it, and not in those of S8 which bestow and define the legislative powers of the Congress. It results that the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution.

... whereby the power of the federal to spend for the "general welfare" is asserted even though no such power actually was agreed to by those that Ratified the Constitution.

Please let me refer you to the exercise of the "original right" as spoken of by Marshall in Marbury for it was the exercise of the original right, in conjunction with the particular theory of written constitutions.

Now for the States to have exercised this original right in such a way that the principals so established are, as Marshall pointed out, to be "permanent" then what they can be said to have agreed to must be what they actually did agree to and THAT is the Law, the proper interpretation of the language they Ratified.

This introduces three points which serve to completely invalidate what Robers wrote in Butler that I've cited and all three points rise on the fact that the Ratification of the Constitution, as a Sovereign act making the Law (and not the mere writing of it) happened in time, a real event and not merely a rhetorical one and as such it logically separates the times before Ratification (and what is proper during them) from the times after Ratification (and what is proper during them).

The first point is that when Madison presented to the several States concerning the meaning of the language what Justice Roberts calls a "mere tautology" he was in fact speaking before Ratification, and was one offering advise to those with the Power of consent to make it Law. There is a little used sense of the word tautology, as applied in logic, that actually DOES then apply and it is "a statement that is true by necessity or by virtue of its logical form." ... which is to say that in clarifying that the language is "a reference to the other powers enumerated in the subsequent clauses of the same section; that, as the United States is a government of limited and enumerated powers, the grant of power to tax and spend for the general national welfare must be confined to the enumerated legislative fields committed to the Congress" (Roberts' own words) Madison was establishing a truism, a statement that, once agreed to should have always been deemed correct having established the meaning. This is a "tautology" ... just not a "mere tautology", or something that adds no meaning.

The second point is likewise, that when Hamilton wrote of the general welfare construction he did so as an official serving in the federal government AFTER Ratification. Before Ratification he did not propose this construction to those with the original right to make the Constitution Law: indeed he was among the Amen Chorus to the doctrine of delegated powers writing a stirring, an absolute, defense of the principal to argue that the adoption of a Bill of Rights was not merely unnecessary but also dangerous, possibly providing pretext for unscrupulous men to later assert more powers than the Powers actually delegated. Now, that Hamilton wrote his report concerning manufactures AFTER Ratification demonstrates that he could not have been giving advice to those with the Sovereignty to Ratify because Ratification was already a done deal. In this Hamilton was being boorish, like a wedding guest who waits till after the vows are taken rather than to "speak now or forever hold your peace." and he thus spoke spuriously.

Unless you demand that it was Alexander Hamilton who was the Sovereign to make Law and not the several States that actually Ratified it.

Finally, the third point relates to the fact that what we would recognize as a Hamiltonian view was not, in fact, unknown before Ratification and that this was presented by the Anti-Federalists to express how dishonorable men would misconstruct and abuse the language in the Constitution and they did so expressly to discourage its adoption in that form. BUT that they brought up this "Hamiltonian" view to protest, to argue how it could be misconstructed and abused, proves that they too well understood that what Madison was saying the language meant IS WHAT THE LANGUAGE MEANT and therefore what the several States were being asked to agree to, and so what they agreed to. It is not coincidental that the preamble of the Bill of Rights says that these were presented to prevent the abuse and misconstruction of the Constitution's Powers and the 10th Amendment is then a grammar, a statement of organizational and structual principal, whereby the whole of the Constitution is meant to be read.

So can you see why I say that a more convoluted and corrupt conclusion to an opinion is hard to imagine? Roberts is here a great villain, essentially pretending that the original right that Marshall spoke of never existed (or else Hamilton-the-Secretary-of-Treasury must be recognized as having spoken out of turn) so that the Court could claim that very power and make shit up as they go along just as they have done since Butler was issued.

Under this present lawlessness there are no permanent principals on which the government is arranged but they, who can unsettle it for whatever fancy may strike them in a moment (as Chief Justice Roberts recently did for Bammycare) still call "settled law".
101 posted on 12/15/2015 5:59:33 PM PST by Rurudyne (Standup Philosopher)
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