DCU, I’ll bet you know that I know you already know that stuff. I’m trying to drag along the non-lawyers. This stuff almost killed me in law school. Next: “dormant” commerce clause.
He said that. I think the Supreme Court is usually wise and rational. I don’t think the whole shebang crumbles if there are enough warnings to the feds that the commerce clause is no longer a free lunch.
The states could voluntarily cede some jurisdiction to the federal government, maybe. That’s a good law school hypo to kill an afternoon, or less – not sure. The feds could establish voluntary uniform laws for the states to follow, or else. The CC law is so in favor of the federal government as it is, perhaps we could simply give the states their reserve powers back if they actually make a reservation: CA, AZ, AK, OR, etc.? I know, “supremacy clause.”
Which reservation has supremacy? Slip the SC a Jackson?
[post might have contained instances of sarcasm, but no animals were harmed]
Nope. See Roe v. Wade; Planned Parenthood v. Casey.
All it takes is a few conservative justices. The problem is the politicization of the courts begun under FDR. The Commerce clause was interpreted literally up until 1937, after FDR made noises about stacking the court to get the decisions he wanted.
My point is that many liberals favor broad interpretations, not realizing that the same creative interpretations can be used to do just about anything five justices deem desirable. Such as appoint a Republican President who lost an election? Does that ring a bell?
A rigorously literal interpretation of the Constitution keeps our liberty safe. The road that FDR set us on threatens it.
Nonsense. The courts have been politicized since the beginning of time. While FDR effectively changed the political slant of the Supreme Court, all he did was tilt it–the same thing every president has done, before and since FDR.
Nonsense. As Dewey stated above, there was no internal consistency whatsoever in the pre-New Deal commerce clause cases. They were making it up as they went along, exactly as you propose to do.
There is no “literal” interpretation of the commerce clause, because the clause does not define what “interstate commerce” consists of. Whether interpreted broadly or narrowly, all you’re doing is interpreting a two-word phrase that could mean just about anything.
I see your strawman and raise you complete indifference to your point.
Here’s my suggestion: Interstate commerce is any transaction where goods or money cross state lines, or where someone crosses state lines to perform a service. Transactions that take place within a single state don’t count, even if they have some potential indirect impact on commerce in other states.
That seems perfectly reasonable and obvious, at least to this layman. Why does it need to be any more complicated?
Becasue your version defies the reality of economics. First, there are darned few “intrastate” businesses that don’t use items of “interstate commerce,” even as defined by your test. Second, it’s unreasonable to ignore the economic impact that a market in one state has on the markets in other states.
If, for instance, I conspire to create a beer monopoly in the state of Texas, would you simply ignore the obvious economic impact that has on beer producers and distributors in places like Wisconsin, Colorado, and Washington? Is there no amount of “intrastate” economic activity that will justify federal regulation, in your model? Even if I’m buying my ingredients from out-of-state suppliers?
Preemptive note to Dewey: I don’t care about the Texas Antitrust Act. We’re talking federal law here, okay?
Hey, minty pay attention to what I’ve been writing: I agree with you on this one. I know it doesn’t happen very often, so your response is understandable, but please try to fight your natural instinct to dispute me, OK?
You don’t need to use a hypothetical to illustrate this case…consider the effect that the Texas school textbook approval process, which theoretically is a purely Texas issue, has on the national textbook market.
Actually, I doubt very much that Texas school textbooks are a purely intrastate issue, since most of the publishers are outside Texas. But your point is well-taken that economic activity in one state can and does have significant impact on commerce in other states.
Sure, but those are two separate transactions. Company X buys some widget powder from out-of-state Company Y (interstate commerce), then turns it into a widget and sells it locally (intrastate commerce).
I disagree. In the context of the Constitution, where we’re deciding which powers are given to the federal government and which are given to the states, I think it’s reasonable to let the states worry about their own markets.
Yes. Though I’m having trouble imagining how you’d create a beer monopoly without, for example, preventing people from importing beer from other states, which is interstate commerce and therefore can be regulated by the feds.
Correct. The closest you could get would be a law against selling ingredients to out-of-state monopolies.
