Sounds like you are arguing for direct democracy, and not a republic.
Sure. Because the Constitution was written for economists and political scientists, not for the peasants.
I don’t understand this comment–neither where it comes from nor where it’s going.
Don’t you agree that “999 randomly selected americans think X is true” does not generally mean that X is true?
Worse, he seems to think votes can settle matters of fact.
That’s even more absurd. If someone is not engaging in interstate commerce, the Congress cannot regulate his actions.
If there is a salesman who works cross state lines, and his wife refused sex to him, that may affect his salesmanship. Taken collectively, such refusals may have effect on interstate commerce. Ergo - Congress can legislate that wives cannot refuse sex to salesmen husbands.
If I jaywalk, I may interfere with trucks that are going from state to state carrying valuable goods. Taken collectively, jaywalking may have effect on interstate commerce. Ego - Congress can legislate against jaywalking.
Where exactly is the limit?
Who do you think it was written for? Most states did not grant the franchise to anyone but property owners until the 1820s and restrictions were not repealed in many states until the 1840s. For example, New York did not expand the franchise to non-property owners until 1821, when it adopted a new constitution.
999 out of 1000? I would say it does. Outside of SC decisions, can you give me something that 999 out or 1000 randomly picked Americans would think is true that wasn’t?
Then there is hope for the whole leg/tail controversy.
Why should there be one?
There has to be one in order for the 10th amendment to have any meaning.
The limit, as it always does, falls where the exercise of congressional power infringes on another power or right under the constitution. Common sense should tell you that the power to regulate interstate commerce does not extend to forcing women to have sex, which would among other things be a deprivation of liberty without due process of law.
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There has to be one in order for the 10th amendment to have any meaning.
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Even with one, the 10th amendment has no meaning. It’s a tautology.
How so? What powers are being exercised by the federal government that are not delegated to it by the Constitution, via the commerce clause and the necessary-and-proper clause? Where are those powers prohibited to it by the states?
If all you have is a vague wish for the ideals of the time of Jefferson, fuhgeddaboudit - they didn’t exist even then.
I think you took “generally” to mean “usually,” but I meant it with the force of “always.” Sorry for the confusion.
999 out of 1000 people thinking something is true doesn’t always mean it’s true. For matters where expertise or technical knowledge can apply, these exceptional cases are bound to pop up. What is or isn’t “interstate commerce” is one of those cases.
The layman thinks you’re engaging in interstate commerce only if you exchange money across state lines. But the layman might be wrong about this, if economists, political scientists, and so on, have determined that a useful concept of “interstate commerce” muts include transactions which don’t, by themselves, cross state lines.
As for the example you asked for, it’s unnecessary for the reasons I just gave, but for completeness, I’ll answer. Note, however, that “outside of SC decisions” is a qulaification which makes your query irrelevant to the current discussion. Note also that if there’s something 999 out of 1000 people would think true, which is false, it’s extremely unlikely that I’d be able to name such a truth–since I’d be most likely tobe one of the 999. Nevertheless: 999 out of 1000 randomly selected americans would probably think it true that philosophers typically task themselves to think about the meaning of life.
For the 10th amendment to have any meaning, there have to be SOME powers not delegated to the federal government. If, as you say, there is no limit to federal government powers, and if anything at all can be twisted to fit under the “commerce clause”, that subverts the meaning of article 1, section 8 and the 10th amendment.
If there is no limit to the federal government powers then there is absolutely no need for any enumerated powers in article 1, section 8. And the 10th has no meaning. Since the presumption is that the writers of the Constitution and the amendments didn’t waste their time on writing something that was not needed, that means there has to be a limit to federal government’s powers and the commerce clause is not all-enveloping.
Justice Cardozo concurring in Schechter. I’ve found it to be a pretty handy rule of thumb that anytime I think I’ve got something figured out that the Supreme Court is too dumb to consider, maybe I should check and see if they by any chance already dealt with it 50 years before I was born.
In other words, there’s a limit.
Why presume that? It could well be that they royally screwed up and failed to understand the implications of what they themselves wrote.
There was quite a bit of debate in the Constitutional Convention to the point that the amendment did indeed have no meaning, as you may know.
But, assuming it does anyway, what powers do you think are not delegated to the federal government, and on what basis do you think so?
Better read the Ninth too, then - it explains how the list is not exhaustive.
So, again, where do you think the limit you insist upon is found?
Yes, you did misunderstand me. I took your comment about the inflexibility of the constitution as an excuse for the Judiciary to bend the rules in ways that may be unconstitutional. I would argue that it is better to amend the constitution rather than bend logic such that unconstitutional laws pass muster. Maybe I misunderstood your comment.
All those not listed. As the Tenth says: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Here is the Ninth: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
That says that the powers listed in the Constitution that belong to the people is not exhaustive. It means that the people have more powers than those indicated in The Constitution. It is not saying that the federal government has more powers.
I bet once you pointed out to them that the gas powering their mower was produced somewhere other than their home state, they’d answer yes.
And once you pointed out that the lawn mower they were using was manufactured in another state.
And the fertilizer they use. And that weed whacker. And that edger. Heck, where I live, we even have to import grass from another state.
ETA: Believe me, I’m no fan of the commerce clause. But most, in fact the vast VAST majority, of commerce that we engage in nowadays is interstate commerce.