F*** the Tenth Amendment?

[december]

In a concurring opinon in UNITED STATES v. LOPEZ, (thanks for the cite, minty) Clarence Thomas wrote:

Although I join the majority, I write separately to observe that our case law has drifted far from the original understanding of the Commerce Clause. In a future case, we ought to temper our Commerce Clause jurisprudence in a manner that both makes sense of our more recent case law and is more faithful to the original understanding of that Clause.

We have said that Congress may regulate not only "Commerce . . . among the several states," U.S. Const., Art. I, 8, cl. 3, but also anything that has a "substantial effect" on such commerce. This test, if taken to its logical extreme, would give Congress a "police power" over all aspects of American life. Unfortunately, we have never come to grips with this implication of our substantial effects formula. Although we have supposedly applied the substantial effects test for the past 60 years, we always have rejected readings of the Commerce Clause and the scope of federal power that would [ UNITED STATES v. LOPEZ, ___ U.S. ___ (1995) , 2] permit Congress to exercise a police power; our cases are quite clear that there are real limits to federal power.

On another thread, minty green wrote

Yep, Lopez was still decided correctly, and Thomas still utterly failed to address sixty years of precedent while babbling on about original intent. O.I. is a perfectly legitimate means of analysis, and it may even be decisive, but it's half-assed scholarship to cry "Original Intent!" while shielding your ears from dozens of precedents that showed Lopez easily could have gone the other way.

Questions:
[*]Should we ignore CT's warning and let Congress have unrestricted power?[*]Should we move back toward a limitation of federal powers, as required in the Tenth Amendment?[*]If federal powers are to be limited, where should the line be drawn?

[erislover]

IMO the quesiton, while good for debate, is practically meaningless. Our government, through various organizations which answer to authorities in what may only be called suspicious ways (ie- are they truly under the law?), already has all the power it needs to do whatever it wants. I think what stops it is....nice people!
[/conspiracy mode]

The Tenth Amendment to the Constitution of the United States of America, adopted in 1791:
The powers not delgated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

Having just read all of the first Article's Section 8, it includes damn near everything already to be interpreted by CT's statement that they can control "anything that has a "substantial effect" on such commerce." Section 8 outlines(paraphrased):[*]Taxation, with no restriction on what may be taxed; borrowing money as the executor of US credit;[*]regulate commerce among its borders and with foriegn nations and Indian tribes;[*]establish rules on nationalization and bankruptcies;[*]to act as the source for coining money, regulation of its value, of foriegn monies, and control weight and measure standards;[*]to establish punishments for violating laws in the previous section; post offices and the routes they travel;[*]to promote science and art, and patents and copyrights thereof;[*]to set up tribunal courts below the SCOTUS;[*]to define and punish crimes on waters (the high seas in those days);[*]to declare war, and set standards for specific war actions;[*]To raise armies;[*]To raise a Navy
etc etc(it is a long section)
At any rate, Congress can do damn near anything as granted by the constitution already. CT's beef is not with OI, but with the damn Constitution!

As a final comment on those lines, Congress already could Amend the Constitution(Atricle 5). Using that in combination with the "powers...reserved to the people" the logical conclusion was that Congress, by gosh and by golly, could do just about anything with the proper votes. That's why Congress isn't a permanent platform and is, in theory, answerable to the people themselves (nevermind the balance of powers).


[Edited by David B on 07-07-2001 at 10:32 AM]

[erislover]

If a mod could, perhaps, edit that "code" so there's a damn new line in there, it would be appreciated by all, I'm sure.

[tomndebb]

Excuse me? Thomas says that we have sixty years of stare decises judgements that clearly preclude his "logical conclusion" scenario (indicating pretty firmly that we are not headed in that direction, at all), then whines that the court has not gone out and engaged in more judicial activism (but in his "good" direction) by not broadening their scope on this case?

Sorry. If Thomas had a reasonable case to make, then it should not have been difficult to get Rehnquist, Scalia, and (probably) O'Connor to line up with him.

The Tenth was not needed in this case and it's simply a red herring for Thomas to harp on its concept.

[David B]

[Moderator Hat: ON]

I edited it to be a quote instead of a code.

-----
David B, SDMB Great Debates Moderator

[Moderator Hat: OFF]

[Rmat]

Originally posted by tomndebb
Excuse me? Thomas says that we have sixty years of stare decises judgements that clearly preclude his "logical conclusion" scenario (indicating pretty firmly that we are not headed in that direction, at all

So unless a danger is actually realized, it's not really a danger? Surviving the first round of Russian Roulette "precludes a scenario" in which you blow your brains out?

You folks also need to understand of separate concurrences. They are not dissents, and they are not written so the author can flame. They are in the nature of food for thought.

[minty green]

Hey, cool! My hijack has started a whole different thread! In case anyone wants to read the whole case that december is quoting in the OP, it's here: U.S. v. Lopez, 514 U.S. 549 (1995). For the non-lawyers out there, it's an absolutely pivotal case regarding the scope of Congress' power to create laws. Lopez got busted for possessing a gun near a school, which violated the federal Gun-Free School Zones Act. The Supreme Court reversed the conviction because it concluded that Congress did not have the power, under the Interstate Commerce clause (Article I, section 8 of the Constitution) to regulate the possession of guns in such circumstances.

It seems to me that the OP actually raises two related issues. Since power over interstate commerce is specifically enumerated to Congress, the initial question is whether an activity falls within the definition of "interstate commerce" so that it can be regulated. Only if an activity falls outside of interstate commerce does the 10th Amendment come into play, denying Congress power in areas not covered by its delegated powers.

As I said in my quote in the OP, I think the majority got it right in holding that "interstate commerce" does not include possessing a handgun near a school. Further, I even agree with Thomas that the basic reason for this is that the states, not Congress, have always nearly exclusive power over criminal actions that occur entirely within their own borders and do not impact a specific federal interest.* The sixty years of Commerce Clause jurisprudence I alluded to above dealt with regulation of economic activity, not criminal activity. There was insufficient nexus between the criminal activity of gun possession near a school and any conceivable economic impact on interstate commerce, so the GFSZA was not a law that Congress had the power to pass.

Clarence Thomas, however, still bites as a legal scholar. Instead of distinguishing the precedents on criminal/economic grounds, he just threw up his hands and cried "original intent!" That is an incredibly dangerous attitude.** A decent legal system must be predictable, and blithely overturning sixty years of precedent--for that is exactly what Thomas would have the Court do--would throw nearly every federal statute of the 20th Century into a higgledy to beat all piggledys. That's "judicial activism" at its worst, friends and neighbors.


*A good example of the "federal interest" exception is the federal bank robbery statute, justified because banks are federally insured.

**Sua Sponte had an excellent discussion of the necessity of respecting precedent a couple months ago. I'll see if I can find it and link to it, because he put it far better than I could.

[erislover]

Originally posted by minty green
...Lopez got busted for possessing a gun near a school, which violated the federal Gun-Free School Zones Act. The Supreme Court reversed the conviction because it concluded that Congress did not have the power, under the Interstate Commerce clause to regulate the possession of guns in such circumstances...
As I said in my quote in the OP, I think the majority got it right in holding that "interstate commerce" does not include possessing a handgun near a school. Further, I even agree with Thomas that the basic reason for this is that the states, not Congress, have always nearly exclusive power over criminal actions that occur entirely within their own borders and do not impact a specific federal interest.*
*A good example of the "federal interest" exception is the federal bank robbery statute, justified because banks are federally insured.

Ah, but what impact does the federal government have on schools? Surely the department of education has a vested interest in state-run schooling. The question is, how far of a link are we willing to allow? Is this a legal bald-man problem?

[december]

Originally posted by minty green
A decent legal system must be predictable, and blithely overturning sixty years of precedent--for that is exactly what Thomas would have the Court do--would throw nearly every federal statute of the 20th Century into a higgledy to beat all piggledys. That's "judicial activism" at its worst, friends and neighbors.

I presume minty was equally horrified at Roe v. Wade, Brown vs. the Board of Education and the judicial overturning of the death penalty.

[minty green]

No, no, and only a little bit. Neither Roe nor Brown overturned diddly squat. The temporary ban on the death penalty in the 1970s could be seen as excessive, given that the DP itself is clearly constitutional. However, the Court in that case (IIRC) was considering, for the first time, the constitutionality of how the DP was administered, and found that there were constitutional problems. It instituted a temporary ban, the constitutional problems were corrected, and a few years later Utah got to stick Gary Gilmore in front a a firing squad. Problem solved.

Novel rulings on new issues make precedent--they do not destroy it, as Thomas would do to the Court's Commerce Clause cases.

[minty green]

Originally posted by erislover
The question is, how far of a link are we willing to allow?

Yep, that's the $64,000 question. Personally, my answer is that when Congress directly regulates an economic activity, you don't need much of a link at all. But when Congress regulates a criminal activity, the link better be darned good.

[Rmat]

Originally posted by minty green
No, no, and only a little bit. Neither Roe nor Brown overturned diddly squat. The temporary ban on the death penalty in the 1970s could be seen as excessive, given that the DP itself is clearly constitutional. However, the Court in that case (IIRC) was considering, for the first time, the constitutionality of how the DP was administered, and found that there were constitutional problems. It instituted a temporary ban, the constitutional problems were corrected, and a few years later Utah got to stick Gary Gilmore in front a a firing squad. Problem solved.

Novel rulings on new issues make precedent--they do not destroy it, as Thomas would do to the Court's Commerce Clause cases.

Brown overruled Flessy v. Furgeson. Roe invalidated every state abortion law then in effect. Furman v. Georgia, Gregg v. Georgia, and their progeny invalidated every state death penalty law then in effect. Novel rulings often REPLACE precedent, thus both creating AND destroying precedent.

[tomndebb]

So unless a danger is actually realized, it's not really a danger? Surviving the first round of Russian Roulette "precludes a scenario" in which you blow your brains out?

If you have spent sixty years strengthening the levee to keep out floods, it is pretty silly to claim that the levee will create a "danger" to prevent the garden from getting watered when there are already pipes laid across the levee to water the garden. That is the silliness of Thomas's argument of "danger."

[minty green]

[i]Brown v. Board of Education[i] did not overturn Plessy v. Ferguson. The Court in Brown did what Thomas was incapable of doing in Lopez: It distinguished the precedent.

The doctrine of "separate but equal" did not make its appearance in this Court until 1896 in the case of Plessy v. Ferguson, supra, involving not education but transportation. . . . In approaching this problem, we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws.

But even if the Court had directly overturned Plessy, there's a big difference between overturning a single, sixty-year-old case and overturning a long series of cases that extend back for sixty uninterrupted years.

As for Roe, invalidating state statutes is fundamentally different from overturning precedent. Those laws, after all, had never before been determined to be constitutional, at least by the Supreme Court. Roe established precedent; it did not overturn precedent.

And BTW, the dicussion of the precedent that I mentioned above is in this thread: http://boards.straightdope.com/sdmb/...threadid=64216

[minty green]

Oh, and the same thing I said about Roes goes for the death penalty cases, Rmat. The Supreme Court is charged with determining the constitutionality of state and federal laws. The fact that legislatures pass laws that are later determined to be unconstitutional does not mean the Supreme Court is overturning "precedent" in any way, shape, or form.

[december]

Originally posted by minty green
The Supreme Court is charged with determining the constitutionality of state and federal laws.

Note the passive voice. In fact, the SC took this power. It's not in the Constitution.

The fact that legislatures pass laws that are later determined to be unconstitutional does not mean the Supreme Court is overturning "precedent" in any way, shape, or form.

In other words, the SC gives more deference to their own past decisions than to the words of the Constitution.

Anyhow, there's a certain amount of bunkum in Constitutional Law. The SC typically justifies a desired change by "demonstrating" that it merely clarifies a past decision. However, when that's too hard, they don't bother, like the notorious discussion of "penumbras" in Roe V. Wade.

Back to the OP, I can't see returning to the original meaning of the Tenth Amendment. IMHO that would make most federal regulations unConstitutional as well as Social Security and most other benefit programs for businesses and for individuals. I can't see the US today operating as a loose federation of states.

On the other hand, I'd like to see some areas restricted to the states, as originally required. (I don't mean these as Constitutional arguments; just what I think will work better for society.)

We've long since thrown away the dividing line in the Tenth Amendment. What should replace it?

[SuaSponte]

I've been cited!! Thanks, minty - now if only my law review article would be cited by a court.

Interesting discussion thus far. A few thoughts to add.

1. No one can ignore the Tenth Amendment without discarding the whole Constitution. The 10th Amendment is a tautology - in essence, the FF's were saying "it seems like some people are misunderstanding the Constitution. It is a framework for a limited federal government - the feds can only do what is allowed by the Constitution. But since some of you morons didn't understand that the first time around, we'll make it explicit." So there is no real tension between the Commerce Clause and the Tenth Amendment - the real issue is simply how far the Commerce Clause extends federal power.

The Commerce Clause has been much abused by Congress - it was an easy method to pass laws. Recent Supremes jurisprudence has returned a balance to federal/state power - perhaps it has gone too far towards the side of the states, but the need for balance is very clear. Thomas' concurrence was third-grade logic "if we take the Commerce Clause to its extreme, it would be very bad." Well, duh. And that's why we don't take it to the extreme.

Ya know, there is a fundamental misunderstanding of the role of judges in our system. Of course judges legislate from the bench. That is their job. I'll give you a simple example. Last week, the Supreme Court of Florida held that, under the Florida constitution, creditors may not seize a debtor's home, even when the debtor bought the home with the express purpose of hiding his/her assets from those creditors. Prior to this case, the issue was unsettled in Florida, with several bankruptcy courts allowing seizure of homes in the same circumstances. The Fla. Supremes made new law.
And it is law. I was following this case very closely because I have the exact situation - a debtor owes my client a few million, and after we got a judgment against him (but before the amount of the judgment was settled), he went out and bought a $1.7 million penthouse. I can no longer seize the penthouse for my client, and if I were to try to do so, my client could be sued by the debtor.
Every time a court makes a ruling, it affects more than just the parties before it. If it didn't, the courts would be overwhelmed by having to hear and decide each case with the same issues over and over again. If that ain't legislating, I don't know what is.
The "judicial activist" argument is utterly disingenuous, and both sides, now that we hear cries of "conservative judicial activism", are guilty. Judges are activist - they are the ones who interpret what a law means and how it should apply, and it's been that way since the rise of the English common law system in (about) the 16th Century.
A judge who says were are not going to allow X is as "activist" as one who says we are going to allow X. So long as there are disagreements about what laws and/or the constitution means, we will need judges, and the judge will have to take active steps to decide the answer.

Sua

[erislover]

Article2, section2:The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, etc etc.

Though it isn't explicitely stated, it seems clear enough to me. Is it really the case that this was a matter of debate?

[minty green]

Originally posted by december
In other words, the SC gives more deference to their own past decisions than to the words of the Constitution.

I don't see it that way, personally. The Supreme Court has certainly filled in the blanks in the Constiution. (And there are blanks in the Constitution. It's not like "equal protection," "due process," and "interstate commerce" are self-explanatory.) But I don't see them ignoring the text of the Constitution, even in the infamous cases like Roe v. Wade and Gideon v. Wainwright. If you have examples of the Court doing something that ignores or contradicts the text of the Constitution, I'd love to see it.

Back to the OP, I can't see returning to the original meaning of the Tenth Amendment. . . . We've long since thrown away the dividing line in the Tenth Amendment. What should replace it?

So, what was the original meaning of the 10th? As I read it, all it does is say "If we didn't say the feds can do it, then they can't." The Constitution certainly says Congress has the power to regulate interstate commerce. The hard part, in Lopez and elsewhere, is how to define what's interstate commerce and what isn't.

erislover: That was the issue in Marbury v. Maidson. As you point out, the Constitution says the judiciary will have power over "cases" involving the Constitution or federal laws, but does not specify what the extent of that power is. That's one of those "blanks" I was just talking about. Notice that the Constitution certainly doesn't say the Court cannot determine the constitutionality of laws--it's silent, just saying the Court has "power."

In any event, Chief Justice Marshall settled the issue, much to the disappointment of Thomas Jefferson, who figured that Congress had the power to decide whether or not a law was constitutional.

[december]

Originally posted by minty green
If you have examples of the Court doing something that ignores or contradicts the text of the Constitution, I'd love to see it.

What was the name of the case that overruled a state outlawing the use of birth control? Griswold v. Connecticut? This would seem to be an example. Sex isn't "interstate commerce." (Most of it isn't. )

So, what was the original meaning of the 10th? As I read it, all it does is say "If we didn't say the feds can do it, then they can't." The Constitution certainly says Congress has the power to regulate interstate commerce. The hard part, in Lopez and elsewhere, is how to define what's interstate commerce and what isn't.

That's true on paper only. Nobody really wants to be guided by what the original meaning really was. If we did, we could look at the behavior of the people who wrote the Constitution during the first few decades of the country's existence. They treated the Constitution as creating a very limited federal government. It's obvious that there's been a huge expansion of the permitted federal role, especially beginning with FDR (for better or for worse.)

The real question is, what type and amount of limitation should there be on the federal government today?

[Enderw24]

The courts can't overturn 60 years worth of precedent? I submit to you McIntyre v Balentine, from the Supreme Court of Tenn, 1992.

Since the begining of their court system they've had a (with few exceptions) contributory negligence system. That means that if the plaintiff was negligent, even if the defendant was even more negligent, the plaintiff could not recover.

It is time to abandon the outmoded and unjust common law doctrine of contributory negligences and adopt in its place a system of comparative fault. Justice simply will not permit our continued adherence to a rule that, in the face of a judicial determination that others bear primary responsibility, nevertheless completely denies injured litigants recompense for their damages

We recognize that today's decision affects numerous legal principles surrounding tort litigation...

Basically, the court recognized not only that they were overturning centuries' worth of precedent, but that they were pretty much screwing up all tort litigation in progress. But they did it because they felt that it was the right thing to do. I, for one, agree with them.

Clarence Thomas obviously believes that this, too, is the right thing to do. I don't have an opinion one way or the other.

[minty green]

december: Griswold v. Connecticut wasn't a commerce clause case at all, since it didn't involve the powers of Congress. Rather, the Court struck down Connecticut's ban on contraceptives under the Due Process clause. Specifically, the Court invoked a long string of "substantive due process" cases that held the states couln't interfere in individuals' rights to bear and raise children as they wish. The idea behind substantive due process is that the Due Process clause not only prevents the government from railroading people procedurally, but also from railroading them through laws that are substantively wrong. It's the source of many of the Court's most controversial rulings, and even I tend to think they've gone overboard in the SDP analysis, but there's still a textual basis there.

Interestingly, if Congress had passed a law requiring states to allow sales of contraceptives, it almost certainly could have done so under the Commerce Clause. Contraceptives, after all, move through interstate commerce, and thus can be regulated by Congress. Nifty, huh?

(BTW, I always wondered why it is that fans of the 10th Amendment invariably focus on the reservation of rights "to the States respectively," rather than the immediately following "or to the people." Personally, I'd much rather have fit the Court's substantive due process cases under the "to the people" part of the 10th Amendment instead of the Due Process clause. Oh well, guess it's a little late now.)

Originally posted by december
Nobody really wants to be guided by what the original meaning really was. If we did, we could look at the behavior of the people who wrote the Constitution during the first few decades of the country's existence. They treated the Constitution as creating a very limited federal government.

True enough, but the important question is what they thought Congress could regulate, not what they actually regulated. So I'd say that looking to stuff they regulated is a good indication they thought Congress had such power, but that declining to regulate something doesn't tell us whether Congress could regulate it.

Enderw24: Sure, courts can overturn precedent. They even do so on occasion, as McIntyre demonstrates. That doesn't mean it's a good idea.

[tracer]

minty green wrote:

In case anyone wants to read the whole case that december is quoting in the OP, it's here: U.S. v. Lopez, 514 U.S. 549 (1995).

The link quoted above doesn't work. Try:
http://caselaw.lp.findlaw.com/script...0&invol=u10287 instead.

For the non-lawyers out there, it's an absolutely pivotal case regarding the scope of Congress' power to create laws. Lopez got busted for possessing a gun near a school, which violated the federal Gun-Free School Zones Act. The Supreme Court reversed the conviction because it concluded that Congress did not have the power, under the Interstate Commerce clause (Article I, section 8 of the Constitution) to regulate the possession of guns in such circumstances.

The law that was rendered Unconstitutional by U.S. v. Lopez was 18 U.S.C. 922(q). It should be noted, however, that when this case was handed down, Congress quickly passed a "new improved" version of 18 U.S.C. 922(q) in which every major occurence of the words:
[*] "a firearm"

... was replaced with:
[*] "a firearm that has moved in or that otherwise affects interstate or foreign commerce"


... thereby circumventing U.S. v. Lopez.

[minty green]

Ha! Didn't know about that little fix Congress threw into the statute after Lopez, tracer. Thanks, and also for fixing my link. I just looked up the amended statute, and it appears Congress also added the findings section that the Lopez majority complained was missing. In addition, at least one federal appeals court (the Eighth Circuit) has determined the amended statute is constitutional. No surprise there, since the courts have long acknowledged Congress has the power to regulate pretty much anything that actually flows through interstate commerce.

Of course, now instead of an unconstitutional law, we're left with a merely stupid law. I do wish Congress would get out of the business of federalizing as much local crime as possible. Unfortunately, when you've got a bunch of politicians in national office declaring that they're gonna get tough on crime, the only way they can really do so is by passing laws that get the federal government involved. I hasten to add, though, that I oppose this trend because I think it is bad policy, not because I think Congress is generally exceeding its constitutional authority.

[minty green]

BTW, now that someone's bumped the thread, I wanted to point out that I was a bit confused in my comments above about substantive due process vs. the 10th Amendment's "or to the people" language. What I was really thinking of as a source of individual rights was the 9th Amendment: "The Enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Unfortunately, the Supreme Court has basically rendered the 9th Amendment a nullity.

[Rmat]

Originally posted by minty green
[i]Brown v. Board of Education[i] did not overturn Plessy v. Ferguson. The Court in Brown did what Thomas was incapable of doing in Lopez: It distinguished the precedent

Brown most certainly did not "distinguish" Plessy, and the exceprt quoted above does not even remotely suggest otherwise. Furthermore, I am well aware of the distinction between invalidating a statute and overruling precedent. Neither is a greater or lesser virtue or vice than the other. There are statutes that "deserve" to be invalidated and those that do not, just as there are precedents that "deserve" to be overruled and those that do not. One cannot say that Thomas's concurrence in Lopez "blows as analysis" merely because he sought to discredit, rather than distinguish, "60 years of predcedent." Not all precedent "deserves" to be "distinguished" (and assuredly Plessy would be one that did not); rather, they may "deserve" to be overruled. Stare decisis (somewhat like the rule that legislative enactments are presumed to be constitutional) is a venerable principle--but it is not an ineluctable rule. Trash Thomas if you like ON THE MERITS of his opinion--but not on his mere willingness to discredit authorities he deemed worthy of such treatment (unless, of course, you are prepared to show that those authorities were correct).

[minty green]

Uh, did I somehow fail to trash Thomas "ON THE MERITS" of his opinion? I've identified his failure in Lopez as an utter disregard of precedent. Sorry, but a cite to dicta in Laughlin Steel doesn't cut it when there are at least a dozen Supreme Court cases interpreting the Commerce Clause that go the other way. Thomas was so selective in his quoting in that opinion that it borders on dishonesty. Mayhap that explains why he couldn't even get such an ardent Originalist as Justice Scalia to join him in that opinion?

As for claiming that invalidating a statute on constitutional grounds is no better than failing to follow precedent . . . well, everyone's entitled to an opinion, of course. But ever since Marbury there's only one body that's charged with interpreting the Constitution in this country, and it darned sure ain't the Nebraska legislature. Legislatures, by their nature, are entiled, even expected, to change their minds on policy every time they take a new vote. I happen to think that the Constitution, the very blueprint of our nation, needs a hell of a lot more stability than 535 snot-nosed politicians in Congress are likely to provide.

Which leads me to my challenge to you, Rmat. I ask you to demonstrate where Brown reverses Plessy. Let me give you a running start by quoting, in full, every single point where Brown says anything at all about Plessy.

This segregation was alleged to deprive the plaintiffs of the equal protection of the laws under the Fourteenth Amendment. In each of the cases other than the Delaware case, a three-judge federal district court denied relief to the plaintiffs on the so-called "separate but equal" doctrine announced by this Court in Plessy v. Ferguson, 163 U.S. 537. Under that doctrine, equality of treatment is accorded when the races are provided substantially equal facilities, even though these facilities be separate.

Nope, no overruling of Plessy there, although it's pretty clear that the meaning of Plessy is in issue.

In the first cases in this Court construing the Fourteenth Amendment, decided shortly after its adoption, the Court interpreted it as proscribing all state-imposed discriminations against the Negro race. The doctrine of "separate but equal" did not make its appearance in this Court until 1896 in the case of Plessy v. Ferguson, supra, involving not education but transportation. American courts have since labored with the doctrine for over half a century. In this Court, there have been six cases involving the "separate but equal" doctrine in the field of public education.

Hmmm, Plessy is a Fouteenth Amendment case involving "separate but equal" in transportation. But Brown is a separate-but-equal case involving public education. Gee, why would the Court mention the transportation/education distinction at all if they were passing on the entirety of separate-but-equal doctrine?

And in Sweatt v. Painter, supra, the Court expressly reserved decision on the question whether Plessy v. Ferguson should be held inapplicable to public education.

Wow, they reserved judgment on whether Plessy applies to public education in a previous case!

In approaching this problem, we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws.

Oh my, the Court says there's a difference between 1896 and 1954. Could they be "distinguishing" the two cases?

Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding [of actual harm to black children from segregation in public schools] is amply supported by modern authority. Any language in Plessy v. Ferguson contrary to this finding is rejected.

Gasp! There was different evidence in this case. Evidence that shows "separate" isn't "equal" in education! I guess that means a plaintiff can show "separate" isn't constitutional if it's not really "equal," huh? Quite a difference from Plessy, where the court decided that "equal" took care of any constitutional problems with "separate."

I'm not crazy enough to argue that Plessy means much of anything in the wake of Brown. By recognizing that separate can be inherently unequal, the Court essentially killed that whole approach to race and the Constitution. But the Court most certainly did not overrule Plessy, which still stands for the proposition that separate and truly equal (throroughly unlikely as that is), at least within the realm of transportation, is constitutional.*


*Constitutional, yes. But still illegal by federal statute thanks to the Civil Righst Act and its many amendments.

[Rmat]

This Plessy/Brown thing is getting silly. That Brown overrruled Plessy is beyong serious debate. Do you have access to Shepards Service or WestLaw Autocite or some other equivalent service? I guarantee you that it reports Brown as "OVERRULING" ruling PLessy, and that there are no fewer that a dozen post-Brown cases explicitly recognizing that fact, and scores of hornbooks and legal treatises that also characterize it in just those terms. Anyway, this is such a small point, and one that I'm happy to let it go if you are. If, however, you wish to insist that Brown did not overrule Brown and you are unwilling or unable to do the requisite research, I will -- as a very special favor for you -- do it myself and report the results here. But my offer stands: I'll drop it if you will, and you can privately cling to your belief that Plessy was never overruled in Brown.

[minty green]

::shrug::

[Rmat]

And now back to what matters....
Lopez is just one of a series of cases decided by the USSC in recent terms that reinvigorates federalist doctrine to a degree perhaps not seen since our nation's founding. Throughout much of the past century in particular, it was the prevailing view among intellectual elitists (and this, in turn, a good segment of the federal judiciary) that there was no aspect of governance that could not be best performed nationally. The problem, of course, is that this point of view -- whatever its validity in strictly operational terms -- is wholly at odds with the model devised by the Founding Fathers for divided governance. Finally, we are no witnessing some restoration of the orginal model. I applaud it. Not that the states will govern with unfailing brilliance. (Which is also not that the feds have either.) But the Founding Fathers' preference for divided governance was rooted only partly in a concern for vesting different policy choices in the hands of the most "competent" decisionmaker. Equally important was the concern was that power not be concentrated ANYWHERE.

[minty green]

Equally important was the concern was that power not be concentrated ANYWHERE.

Three cheers for the Articles of Confederation! Hip hip, hooray!

Like it or not, the founders were creating a system of government that concentrated much more power in a centralized federal government. Of course, that power has some limits, as Lopez demonstrates. But if the founders wanted to avoid all concentrations of power, why would they have written a constitution that gives the federal government unfettered power over everything erislover listed in the second post to this thread, plus a myriad of other exclusive powers? Whether or not the federal government exercises those powers depends on who the voters send to D.C. Nevertheless, there is no question that the federal government does have those powers under our Constitution, and that the individual states by and large play anything more than a supporting role at the whim of the federal government.

And I guess that's really the answer to december's question about what should limit the federal government today. The Constitution does give the feds huge amounts of power. Whether or not they exercise it is a function of who we elect to serve in Washington. Welcome to our democratic republic!

[SuaSponte]

I had written a long discussion concerning Plessy and Brown, but the Web ate it, so to sum up:

minty and rmat, you are both right. The facts and issues addressed in Plessy dealt solely with transportation, and Brown did not touch that. Indeed, as demonstrated by the Freedom Riders, for example, transportation, at least in the South, remained segregated after Brown. However, Brown invalidated Plessy's rationale - that seperate could be considered equal without a factual investigation into whether the particular public facility was in fact equal. And, of course, any such investigation would reveal that seperate is not and cannot be equal.

As for overruling precedent itself, Justice O'Connor laid out what I think is a very good rule in Casey. In Casey, the Supremes were invited to overrule Roe. O'Connor declined, noting that "[n]o change in Roe's factual underpinning has left its central holding obsolete, and none supports an argument for its overruling." O'Connor went on to explain that in the cases where the Supremes had overruled earlier precedent, "the facts or our understanding of the facts" had changed. Casey, 505 U.S. 833, 835-36.
This is a good rule - precedent should stand until and unless its factual predicate has been demonstrated to be invalid.

minty, I think your reading of Art. I, Sec. 8 is a bit off. The Constitution does give a large number of powers to the Congress, but it wasn't expected that these powers would be all that important. It's the law of unintended consequences - they set up the rules in an era of an agricultural economy with no plans to establish a standing army. The same circumstances don't apply today, but that doesn't change the powers invested in Congress, and it can strongly be argued that the fact that these powers invested in Congress allowed for the conditions that exist today - heavy commercial activity, general prosperity, and a strong military.

Sua

[minty green]

Yeah, Sua, you're probably right that the changing economic conditions of the USA have led to greater exercise of power on the part of Congress. After all, giving Congress the power to regulate interstate commerce in the 1780's didn't necessarily give it a great deal of actual power, since there was comparatively little interstate commerce going on. A couple centuries later, though, there's a whole lot of interstate commerce, and all of it can be regulated thanks to that same Interstate Commerce clause.

Still, the guys who wrote the Constitution were doing so with the goal of expanding federal powers, as the weak federal government under the Articles had led to all kinds of problems. The taxing power and the regulation of interstate commerce were especially crucial to their idea of how the new federal government should function, which is why they created such broad powers. That the Congress of today has exercised those powers far more than the founders would have preferred seems pretty clear, but that by no means indicates Congress has exceeded its authority in doing so.

[Rmat]

Originally posted by minty green
That the Congress of today has exercised [its enumerated] powers far more than the founders would have preferred seems pretty clear, but that by no means indicates Congress has exceeded its authority in doing so.

It most certainly does mean that if one assumes, as we must, that the Founders gave their "preferences" prescriptive force in the Constitution.

I confess I am somewhat baffled by the reference to the Articles of Confederation. Concentration of power is not an absolute condition, but one that exists in degrees. That national powers are more concentrated under the Constitution than they were under the Articles is beyond dispute, but that hardly establishes that the Constitution provides for no diffusion of power, or even very little diffusion of power (except in a relative sense) Indeed, as Lopez and other recent cases show, it provides for a good deal more diffusion than we have witnessed in the last two generations or so. Again, I applaud this, no so much because I think it will necessarily make the nation run more smoothly or equitably, but because it is faithful to the Founder's vision--a vision with which we are "stuck" (and I don't mean that pejoratively).

[minty green]

Originally posted by Rmat
It most certainly does mean that if one assumes, as we must, that the Founders gave their "preferences" prescriptive force in the Constitution.

And thus did a conservative argue that we should read stuff into the Constiution that isn't in its text.

[lucwarm]

I think that when courts overrule earlier cases, they frequently pretend that they are merely "distinguishing" those cases so as to pay homage to the principal of stare decisis.

If anyone seriously believes that Plessy v. Ferguson has not been overruled, I invite them to consider what would happen if the State of Louisiana passed a "Separate Car Act" today (with the blessing of Congress).

Perhaps a better example is the so-called "Lochner Era," in which the Supreme Court invalidated all kinds of minimum wage laws and similar laws on the basis of the constitution.

I believe that one or more of those "Lochner" decisions have been explicitly overruled.

[SuaSponte]

Originally posted by Rmat

It most certainly does mean that if one assumes, as we must, that the Founders gave their "preferences" prescriptive force in the Constitution.

Good lord, Rmat, that's a mighty stretch. The beauty of the Constitution is that the FFs realized that things may change, and accounted for them.

Let's look at the source of so much dispute, the Commerce Clause. As I noted, the primary reason the FFs included the Commerce Clause was fear that the seaboard States would impose tariffs on goods transported from the inland states for export. Thus, they inserted the Commerce Clause (and, for the same reason, placed all navigable waterways of the U.S. under the control of Congress).

However, if all the FFs wanted to do was prevent internal tariffs, then the Commerce Clause would have read "No State shall impose tariffs or excise taxes on goods and commerce imported to or exported from that State." (Course, they would have made it sound more archaic. ) They did not take this option.

Instead, the FFs gave Congress exclusive jurisdiction to regulate interstate and foreign commerce. Their "original intent" was to allow Congress the exclusive authority to deal with other issues relating to interstate and foreign commerce not foreseen by the FFs.

If you wish to determine the Original Intent of the FFs look to the language of the Constitution - and think about what they could have written instead. The FFs were very precise - almost everything in it is a much-debated compromise.

Sua

[minty green]

Originally posted by SuaSponte
(Course, they would have made it sound more archaic. )

Nah, they just would have capitalized all the nouns.

[Rmat]

Originally posted by SuaSponte
The beauty of the Constitution is that the FFs realized that things may change, and accounted for them.

Sua

Well, sure. To a point. But whatever unforeseen circumstances the FF hoped their model would provide the means to resolve, any future ALTERING of the fundamental balance between state and national power was beyond their contemplation. Changing times arguably justify a little tinkering with constitutional doctrine on the margins; if that's your idea of a "living constitution," you'll get no argument here. But the constitution of, say, William Brennan (for whom I have ample admiration, btw) would be unrecognizable to the FF. The one of today -- post-Lopez, post-Seminole Tribe, etc. -- would be somewhat more familiar