In a concurring opinon in UNITED STATES v. LOPEZ, (thanks for the cite, minty) Clarence Thomas wrote:
On another thread, *minty green wrote *
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?
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]
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):
[li]Taxation, with no restriction on what may be taxed; borrowing money as the executor of US credit;[/li][li]regulate commerce among its borders and with foriegn nations and Indian tribes;[/li][li]establish rules on nationalization and bankruptcies;[/li][li]to act as the source for coining money, regulation of its value, of foriegn monies, and control weight and measure standards;[/li][li]to establish punishments for violating laws in the previous section; post offices and the routes they travel;[/li][li]to promote science and art, and patents and copyrights thereof;[/li][li]to set up tribunal courts below the SCOTUS;[/li][li]to define and punish crimes on waters (the high seas in those days);[/li][li]to declare war, and set standards for specific war actions;[/li][li]To raise armies;[/li][li]To raise a Navy[/li]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]
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.
:eek:
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.
[Moderator Hat: ON]
I edited it to be a quote instead of a code.
David B, SDMB Great Debates Moderator
[Moderator Hat: OFF]
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.
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.
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?
I presume minty was equally horrified at Roe v. Wade, Brown vs. the Board of Education and the judicial overturning of the death penalty.
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.
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.
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.
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.”
Brown v. Board of Education did not overturn Plessy v. Ferguson. The Court in Brown did what Thomas was incapable of doing in Lopez: It distinguished the precedent.
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/showthread.php?threadid=64216
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.
*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?
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.
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
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?
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.
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.
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?