Dewey I do not desire to just interrupt but I am very curious and have always been curious as to whether Breyer could tell me how a man armed with a gun and eating at a Waffle House restaurant 999 feet away from a school affects interstate commerce or substantially affects interstate commerce?
Can Beyer inform me as to how a man driving in his Ford Ranger with a hunting rifle on display in the back window of his truck driving to a hunting spot that necessarily requires him to pass within 800 feet of a school affects or substantiall affects interstate commerce?
Aren’t these some examples where there is no effect on commerce? Yet Congress jurisdiction would have extended to each and everyone of them making them liable under the statute. Hence, the U.S. Supreme Court held, and rightfully so, Congress had exceeded its jursidiction. Unless, of course, Breyer can persuade me otherwise because at this time I think the connection is remote.
Otto, yeah I have heard of the case but have not actually gotten around to reading it. I am certain it was probably brought to the Justices attention as a path they should take.
I really need to read it to see if the reasoning is logical.
The argument is that guns in schools affects the quality of the educational process, which in turn affects interstate commerce. The specific distance is somewhat arbitrary, but such arbitrariness is necessary as practical matter. Consider restraining orders: is a woman any safer from her stalker if he is 999 feet away rather than 1001 feet?
I agree that the connection to interstate commerce is tenuous. But so is the connection of the 1964 Civil Rights Act. The problem is, assuming the effects test is the correct test, there is no way to draw a principled distinction between the two – what is or is not closely tied to “interstate commerce” is a gut-level call. Which is why, as I say, the courts should just get out of the commerce clause business entirely.
Depends. Why are they breaking into your house? Are they cops removing evidence pursuant to a valid search warrant? That, in a way, is someone breaking into your house to “steal stuff;” do you think you ought to be able to stop him if your personal subjective moral worldview rejects the authority of cops to perform valid searches?
No, of course not – because it takes more than one’s subjective view of morality to make an action proper. It takes some societal-level agreement on what is or is not moral. In your example, the thief in the night is proscribed while the police officer is not because is society’s view the former is immoral and the latter is acceptable. That societal view finds expression in the law. Thus endeth the lesson.
Almost forgot: while the Lopez opinion was fractured, the cleanest reading of it is that the law was rejected because Congress failed to make specific findings on a commerce effect before the law passed. Congress rectified that infirmity the next time around, re-enacting the law. It’s still on the books.
The people can try to ignore it, the government can’t. There’s an important distinction between the people ignoring a specific law, and the government ignoring the rule of law.
Unjust racists laws in the South being ignored by protesters, civil disobedience, that sort of thing…it all helped to show that the law had become out-of-sync with the goals of promoting liberty, and the people were fed up with it. That’s all well and good.
But for the government to rid itself of that rule by sidestepping the appropriate process only creates a climate in which that becomes acceptable government behaviour. The government, by using a bastardization of the Commerce Clause to eliminate segregation in the South circumvented the appropriate process. A basic principle of our revolution was that it was necessary for the leaders to be bound by the rule of law, in fact that it is far more important for them to adhere to the rule of law than for the common man to do so.
If the rule of law can be ignored by government for a “good” purpose, then it can be ignored for a “bad” one too.
Folks, I deserve a gold star, as I have just read this whole thread today. Well, perhaps not absolutely all of it, but most of it. I particularly appreciate the contributions of DCH, Minty, Polycarp, Gorsnak, and Blalron.
As IANAL, I have nothing substantive to add at this point, however, I do note that Blalron posted this way back at the bottom of page two:
I never saw a direct response to this question, and it seems so…plausible. I would be interested in the discussion of the legal ramifications of such an eventuality, particularly if it would then enable new equal protection claims.
Another equal protection claim, of course :D. Maybe using Yick Wo v. Hopkins (dealing with disparate impact of a racially neutral statute). Even though Yick Wo deals with race (a suspect class) and this would involve a rational basis test it might work.
Of course, you could also make the claim that it wouldn’t be rational to single out homosexuals when heterosexuals can also be arrested.
AZCowboy: I believe that the new statute would mirror the one upheld in Bowers – IIRC, the Georgia statue did not make any type of gender distinctions, and I’d lay odds that it wasn’t enforced against heterosexual sodomy. Unless the Supreme Court outright overturned Bowers, the new law would be constitutional.
DCU, I am with you as far as you go, but if the enforcement has the effect of only applying to homosexuals, and presuming homosexuals have not been established as a suspect class, what recourse is available, legally? Through any specific claim, can the judiciary overturn the law or otherwise impact how it is enforced?
While our discussions and news reports of the Court would suggest it, no court, including SCOTUS, actually “voids a law as unconstitutional” – they deal with individual cases and controversies brought before them in the prescribed codes of procedure, and render decisions based on them. Their decisions, especially those of SCOTUS, being binding precedent, will then act to control how the law which was held unconstitutional in its application to Smith will be held unconstitutional in its application to Jones, Brown, and the Amalgamated Widgetmakers of America.
If a law, constitutional on its face, is being applied in a manner that violates the Constitution, the court will enjoin the application of that law. Perhaps the classic example of this is as follows: Nobody doubts that a city may legally annex adjacent territory or the reverse under whatever state laws authorize such annexation and boundary adjustment, and there is certainly not a constitutional question involved in the doing of this. But when the Alabama Legislature redrafted the boundaries of the City of Tuskegee to include all white households in the area but exclude all black households, this was held to be unconstitutional, and the reasons are not hard to fathom. A law that on its face describes an act by any person as a crime but is enforced selectively only against a given group of persons would be found unconstitutional as targeting that group – at least in theory.
Thanks, Polycarp, and I follow that as far as it goes. However, the example you selected covers a protected class.
Can I assume that if the Tuskegee example was failing to annex homes of left-handers, it could/would still (likely) be found unconstitutional? IOW, from your last sentence, that “group” need not be a legally recognized protected class?
While, in theory, this system of precedent, once set, helps protect individuals from selective enforcement, I would imagine that such a claim may be difficult to prove when the actual enforcement rate is as low as something like the sodomy laws. OTOH, the rate of conviction and incarceration of blacks under drug laws are wholly disproportional to drug use in the population. It is easy to see the problem when looking at the forest, but how can the judiciary apply such a principle when looking at an individual tree?
DCU:
When you say “depends”, you imply that there are situations in which I am justified in stopping someone from stealing things from my house, even if I can’t provide objective proof that it is moral to do so. So do agree that this is so?
Huh? Why do you say “of course not”? What would it mean for my worldview to reject the authority of cops to perfor searches, if not that I should be able to stop such? Seems to me that you’re asking “Given that you think that you should be able to stop him, do you think that you should be able to stop him?” The answer to that is “of course yes”.
But isn’t the statement that it takes a societal leval agreement a subjective view of morality? Can you present objective proof of this claim?
The Ryan: The “of course not” was in reference to the question “should you be allowed to do so,” i.e., should the law bend to your personal subjective worldview. I think most would agree that it should not. Obviously, in your mind’s eye you would be completely justified; I’m just saying that internal sense of justification ought not be enough to shield you from the law.
As for the rest, I suppose all things must start from some first principle, and I suppose mine is that just government is derived from the consent of the governed.
And as for moral relativism: in a sense, yeah, it is, just at a societal level rather than an individual level. But I think that’s the way it must be if you aren’t going to reference some extranatural source for morality.
My hunch, AZ Cowboy, is that selective enforcement would be seen as de facto creation of a discriminated-against class even if it is not protected by a majority of the Supremes. But I’d really like to see one of the lawyers (or law students) with constitutional law expertise address this.
It would also be useful if somebody would summarize the three levels of scrutiny and where they’re applicable, given the direction this discussion is going. My knowledge of them is vague enough that a refresher would help me, and I’m fairly certain that half the readers don’t have a clue what “intermediate scrutiny” entails or where it’s applicable.
Hey, nice summary Dewey. We only covered that sort of thing in Family Law, I ended up deferring Con Law to 3rd year so I’ll have it in the fall. Hopefully we’ll cover that.
(Of course, I hope we don’t spend too much time on it. A few years back, a lesbian professor taught Con Law and spent the entire semester on equal protection issues with a focus on gay rights issues. I’m hoping for a slightly more comprehensive course.)
