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McConnell vs. Breyer:

Via Ted Frank over at Pointoflaw.com, Judge Michael McConnell has a rather devastating (though unfailingly polite) review of Justice Stephen Breyer's Active Liberty in the Harvard Law Review.

As an aside, I'm a bit skeptical of McConnell's conclusion that Supreme Court decisions regarding federal regulation of "intrastate commerce" have been accepted by the nation. Putting aside the issue of whether "the nation" is even aware of the issue, I'm not at all confident that a constitutional amendment mimicking the holding of Wickard v. Filburn, much less Gonzales v. Raich, would pass even today.

UDPATE: Judge McConnell responds in the comments below: "The reason Raich and Wickard are controversial is that they arguably do not involve 'commerce' — not that Congress lacks the power to regulate what is genuinely commerce (albeit intrastate). Just because a particular interpretation is very widely accepted does not mean that every marginal extension of that interpretation is widely accepted."

Yes, that's right, though of course the "public" doesn't understand these fine legal distinctions. The point, I think, is that while public opinion has likely made its peace with a substantial expansion of federal regulatory power relative to the pre-New Deal baseline, I think there is still substantial (even if perhaps not majority) opposition to granting the federal government what in legal terms would be called a general "police power"--the power to regulate everything and anything, subject only to the restraints of the Bill of Rights, which is a reasonable description of the current state of the law.

Meanwhile, Sasha writes: "'Accepted by the nation,' as we know from public choice, isn't the same as 'able to pass if proposed in a constitutional amendment.' Would a constitutional amendment pass that overruled Wickard v. Filburn or Gonzales v. Raich?" Good point, so let me elaborate: my normative baseline is that if "overwhelming public acceptance" (McConnell's words) over time is to give dubious Supreme Court opinions "legitimacy and authority," it should be because these opinions could, if necessary, ultimately be ratitified via the normal Article V process; at least, one should be able to expect a reasonable chance that such ratification would occur. That's likely true of McConnell's other examples: extension of equal protection principles to the federal government, prohibition of sex discrimination by states (despite the failure of the ERA, I think you could likely get the current state of the law ratified), and prohibition of gross malapportionment of Congressional districts in the states.

Sasha Volokh (mail) (www):
"Accepted by the nation," as we know from public choice, isn't the same as "able to pass if proposed in a constitutional amendment." Would a constitutional amendment pass that overruled Wickard v. Filburn or Gonzales v. Raich?
12.22.2006 10:37am
MS (mail):
When you begin a setencing critizing a McConnell HLR article with "BTW," that sends a pretty clear signal that we're dealing with some deliberative asymmetry. This isn't DB's fault, of course; the medium is the message. You might as well try to teach Quantum Mechanics using smoke signals.
12.22.2006 10:56am
magoo (mail):
Sasha -- nice point. Actually, there might well be a reasonable chance today of ratifying an amendment that says: "Congress shall have the power to promote the general welfare."
12.22.2006 11:13am
Justin (mail):
magoo,

I'd imagine that would be incredibly difficult to get through the House. I'd also imagine some Western states might find it difficult to pass. And I think many people would be hesitant to bring up an amendment based on the concern that its potential failure might signal something to judicial interpretation.

Still, I think the general point stands. It is clear to my amateur reading of polls and opinion that people think government, at all levels, is the answer to their problems (both economic and social), and is mainly "the problem" only when it fails to solve problems effectively. Federalism is a concept that academics debate, but I do not think the vast majority of people could care about it either way, outside how they might personally (and substantively) be affected.

In that sense, I agree with McConnell's view, to the degree that it was accurately described by DB.
12.22.2006 11:34am
Antares79:

Would a constitutional amendment pass that overruled Wickard v. Filburn or Gonzales v. Raich?


Of course, no such amendment is necessary, as the current commerce clause already overrules these cases. It's just a matter of the Supreme Court correctly applying it, right?
12.22.2006 12:17pm
Michael McConnell (mail):
David, The reason Raich and Wickard are controversial is that they arguably do not involve "commerce" -- not that Congress lacks the power to regulate what is genuinely commerce (albeit intrastate). Just because a particular interpretation is very widely accepted does not mean that every marginal extension of that interpretation is widely accepted. -- Michael McConnell
12.22.2006 12:19pm
Anderson (mail) (www):
Wow, it's like that moment in Annie Hall where Marshall McLuhan steps up in the movie theater.
12.22.2006 12:23pm
M (mail):
David- Do you think that most people actually know or care about the commerce clause at all? I don't mean most law students or lawyers or some other select group, but most people. I suspect that a large majority of people already think the federal government has and should have a general police power, even if some think it should be used less expansively. (At the very least it seems clear that most people think that some such federal regulations are good- abortion regulation, say, even if they reject others.)
12.22.2006 12:47pm
Erasmus (mail):
Judge McConnell's review seems, in part, to be a 30-page complaint that Justice Breyer has not answered every possible issue—that he hasn't addressed Roe, hasn't addressed citation of foreign law, hasn't addressed stare decises. It gets tiresome after a while. It also seems, in part, to be a 30-page attack on whether Breyer's interpretative model is consistently used by Breyer. I suppose it's fun to point out the hypocrisy of a Supreme Court Justice, but the more interesting question is the legitimacy of Breyer's interpretative model. (Is Originalism "wrong" because neither Scalia nor Thomas consistently use it in their opinions?) Ultimately, McConnell's review is more about whether the Breyer's examples support his theory, but, at least in this commentator's mind, the more interesting question is whether Breyer's ultimate theory is legitimate and workable.

I did find Judge McConnell's brief discussion of Breyer's attack on Originalism to be interesting. I thought one fascinating statement McConnell made was that "textualists and originalists do not 'focus primarily' on text and history, but 'primarily' on the right of the people to govern themselves through democratic institutions." I find it first interesting because I think this is flatly wrong as an empirical matter. But if this were true, I think it's a fairly interesting concession. As originalists rely on a more complex set of rules, the more it looks like political theory and less like an interpretative model that ties judges' hands. One thing originalists had going for them is that they could reduce their model to a slogan: just apply the text as understood when it was enacted because that's what was voted on! I think that's wrong, oversimplifies the issue, and is question begging (why should we apply the text as it was understood when it was enacted?), but at least is was simple and appeared to be an "objective" theory. What justifies this democratic deference other than a political choice on the part of the judge? And if judge's can make political choices to select their interpretative model, why not select another interpretative model?
12.22.2006 1:04pm
OrinKerr:
David writes:

My normative baseline is that if "overwhelming public acceptance" (McConnell's words) over time is to give dubious Supreme Court opinions "legitimacy and authority," it should be because these opinions could, if necessary, ultimately be ratitified via the normal Article V process;

David, can you explain why that's your normative baseline?
12.22.2006 1:06pm
DavidBernstein (mail):
Orin, I can see a pragmatic case for recognizing the validity of dubious Supreme Court opinions that merely get, for example, strong majority support over time. Such majority support over time would also shield the Court from accusations of being "counter-majoritarian" or "undemocratic."

But if one wants to have a constitutional theory supporting such decisions, I think it has to be compatible with the Constitution's extremely clear supermajority requirement.
12.22.2006 1:12pm
CJColucci:
I think M had it right. How many non-lawyers don't think the federal government has a general police power, and that it is merely custom or practice or considerations of expediency that make, say, local law enforcement local matters?
12.22.2006 1:18pm
OrinKerr:
David,

If I can press you a bit, why is that? If you adopt that theory, why not just say that no degree of majority support is *ever* enough? Is it because you accept the pragmatic point that undoing such decisions would be pointless, as the system would eventually return to the status quo when the formal amendment is passed?
12.22.2006 1:22pm
Justin (mail):
I think DB's theory is interesting, and thinking about it, could make for an interesting law review article. I doubt he'll have any luck persuading people in this theory, because the superficial responses are so obvious, but I think framed right he could have an interesting point.

However, I think if he does frame it correctly, I would be of the mind that McConnell's view is correct, i.e., if the view that "intrastate commerce power" was within the federal government was displaced via "deus ex machina," I think support for a Constitutional Amendment reaffirming would be very high, although I think there is the (small) possibility, that, despite widespread support, conservatives could influence a sufficient number of Republican legislators in the House, or state legislatures, to block the Amendment, with gerrymandering and incumbancy advantages to prevent the electorate from removing enough legislators to alter that result.
12.22.2006 1:45pm
Kelvin McCabe (mail):
For someone active in supporting the medical marijuana movement, I can tell you that the "people" who are outraged over Raich are outraged for a simple reason: Voters used the democratic process to pass a state law (prop 215) to make Angel Raich's activities 100% legal. The FEDS are consistently thrwarting the will of the people of California by busting medi-pot clubs, and patients, (like Raich) who have legitimate and very serious illnesses. Ditto for any other state that passed a medical-marijuana law either through a ballot intitative or the legislative process. Lawyers can argue Wickard, commerce clause, etc... all day but you are talking right past the "average" person. All they know is they did what they were supposed to do, they passed a law (or lobbied hard for one)and made this activity legal.

Which makes that oft quoted passage from Raich ("someday petitioner's arguments may be heard in the halls of Congress") ring so hollow. This is what the average person "thinks": Why should some bible thumping a-hole Congressman from Kansas get to vote on whether a Californian dying with brain tumors can grow a plant in her backyard? Especially when a majority of Californians have already decided she can grow it?

Its really that simple. Half the people cant even understand the concept that both the federal and state government can have jurisdiction at the same time and one can "trump" the other. Hell, to be fair, one of the most often heard questions is even simpler: How can the government (either state or federal) make a naturally occurring plant illegal? That baffles them more than anything.
12.22.2006 1:47pm
DavidBernstein (mail):
Worse than pointless--often extremely disruptive. I should also add that there is obviously a potential stare decisis rationale for keeping past USSC decisions in place, but that's not what McConnell was referring to. He war referring instead to the USSC adhering to a theory of "active liberty," but it seems to me that the Constitution is very specific on what active liberty means in terms of the support needed to amend the Constitution.
12.22.2006 1:47pm
DavidBernstein (mail):
Kevin, that sounds generally right, but it's also true that the two Con Law classes I've taught, with folks who had a good understanding of what the underlying legal issues were, were still overwhelmingly skeptical of Raich, and to a lesser degree Wickard.
12.22.2006 1:49pm
Justin (mail):
I certainly agree with the outrage of Kevin and DB, though I suggest, much like in Kelo, that they inexplicitly are outraged at the wrong branch. Their outrage should be at Congress, who refuses to amend the mistakes of the CSO, and with the administration, whose interpretation thereof is noxious, as well as their failure to use prosecutorial discretion.

It's not like the majority of the Supreme Court Justices who supported the Raich decision thinks the prosecutions were good policy. Unfortunately, they will be accused of "ignoring" the law in favor of "activism" regardless of their actions.
12.22.2006 1:59pm
DavidBernstein (mail):
I should have said, "the two Con Law classes I've taught since Raich came out"
12.22.2006 1:59pm
Justin (mail):
BTW, if someone thinks the CSO is constitutional but that its application in Raich was not, could someone please inform me of the answers to the following questions:

Would the Government have to prove the interstate commerce aspect of of drug cases? Or would that be an affirmative defense?

If the former, would it just have to prove that it was "a commercial transaction" (intrastate or interstate), or that the drugs were actually produced in another state?

Could circumstantial evidence be sufficient to make the proof, or would they actually have to show the chain of custody?

For all drug offenders whose cases do not have the air of finality, would the failure of the government to show this evidence give them the right to a new trial?

Would your holding in Raich apply to only cases in states that specifically legalized Medicinal Marijuana? If so, how does that comport with the Supremacy Clause? If not, would it also apply to those who admittedly used the drugs for recreational purposes?

What if the drugs were given to minors? Would it matter if it were given to minors for recreational purposes, rather than medicinal purposes?

When answering, please be mindful of the long history of constitutional interpretation and Supreme Court precedent that may bear on your answers.
12.22.2006 2:06pm
Justin (mail):
Ooops, by "CSO" I obviously meant "CSA"
12.22.2006 2:06pm
JosephSlater (mail):
I think a huge majority of the nation would be shocked and appalled if the S.Ct. held that Congress did not have the power to make the basic New Deal laws (NRLA, FLSA, Social Security Act, etc.).

As to more "live" issues, put me in the "I don't think people care much about 'federalism'" camp. People debating medical marijuana, assisted suicide, and (to pick a slightly different example), abortion care much more about the substance of the issue than about whether it's a state or federal government power.

Another example: do you think the fellow in Michigan who refused to abide by an EPA water safety regulation and challenged it all the way to the Supreme Court refused to obey that legal rule primarily because he was offended that it was a federal regulation, not a state one?

Of course, the fact taht people don't care about certain Constitutional rules doesn't mean we should ignore them, but there is a political reality to Con Law that we law profs. ignore at our peril.
12.22.2006 2:06pm
Alex 2005 (mail):
David,
I don't really understand why a constitutional theory supporting "dubious" constitutional holdings must be grounded in Article V. Why is it not enough that the coordinate branches of government recognize a particular decision as legitimate by recognizing it and following it. For example, with respect to the commerce clause cases the Court has (for the most part) confirmed Congress' and the President's understanding of the scope of Congress' commerce clause power. Now you might say - specifically in the context of the commerce clause - that the States have fought this "expansive" understanding of the Commerce Clause power but they have never called constitutional conventions for an amendment to delimit the Court's 20th Century understanding. (And even this doesn't quite work because the states have fought the applicability of federal programs on sovereign immunity rather commerce clause grounds.)
12.22.2006 2:13pm
DavidBernstein (mail):
For "dubious" let's substitute "objectively wrong according to text and original meaning, and thus of dubious legitimacy."
12.22.2006 3:03pm
BruceM (mail) (www):
I'd love to ask conservatives and liberals alike to give me five examples of things that Congress does NOT have the power, under the commerce clause, to regulate.

Just yesterday I posed this question over at my blog.

I'm clearly one of those people who believes Wickard is one of the worst SCOTUS opinions ever conceived. Particularly when combined with Carolene Products. "Footnote Four" + Wickard = Absolute Despotism and the death of any semblance of limitd government.
12.22.2006 3:19pm
Kelvin McCabe (mail):
Just to clarify - i was speaking of the "average" person not in any legally educated sense. Just an average person, who has no legal education background.

Prof Bernstein, i can see one reason for that. The medical marijuana at issue in Raich was never meant to go to market, unlike the wheat or whatever in wickard (where he took some marketable wheat aside for his own use). I dont know if that affects the majority opinion's conclusion about aggregation and all the other BS they made up to reach the desired result. Its just one area of difference. I think a lot also has to do with the personal feelings invovled. a lady with a brain tumor is a bit more sympathetic of a person. You almost want to root for her to win, regardless of the legal precedent standing in her way.

Either way, Merry Christmas.
12.22.2006 3:22pm
Anderson (mail) (www):
Absolute Despotism and the death of any semblance of limitd government.

Goodness, I guess I don't need to ask how you feel about the administration's violations of FISA, then, or about the Military Commissions Act.
12.22.2006 3:27pm
Alex 2005 (mail):
Your "theory" presumes an awful lot. As I understand your argument, it goes something like this: The decision by the Court was incorrect because it allows Congress to act unconstitutionally - why - well because I know that it is objectively wrong based on text and original meaning. Therefore to cure the constitutional infirmity we need to amend the Constitution to either comport with the Court's erroneous interpretation or overrule it so that all is well again, i.e. there are no dubious constitutional decisions still on the books. And someone asks, well how do you know that the decision is wrong? You answer: well it is wrong based on text and original public meaning. The person gets aggressive and asks: Well were you around at the time to ascertain "original public meaning?" And how is original public meaning so easily determined 200+ years later? Were these specific questions debated between 1789 and 1791? Who makes up this public you refer to? Can I read where they (it?) debated/discussed the scope of things such as the commerce clause? And so forth the questions would come. Moreover, this same person will ask: is your propsed method of interpretation the only permissible way to interpret vague and undefined phrases of the Constitution? And if yes, why? The Constitution does not contain any self-referential rules of intepretation. So how are you so sure? We certainily don't apply that sort of standard to open ended statutory terms like Sections 1 or 2 of the Sherman Act.

Moreover, in the context of the commerce clause you assume that this is and an "open and shut question." Why is the Court's interpretation of an arguably close question dubious? And if the Court comes out one way on a close question, why can't the subsequent recognitiion (and implementation) of a "dubious decision" by the coordinate branches not render it legitimate. After all, don't these branches have an independent obligation to determine whether they are acting constitutionally or not? In the end your Article V theory presupposes the rightness of your interpretation of a constitutional clause and general interpretative approach to constitutional law. But if a question is a close one - an undecided one - and the Court's decision in that area is subsequently adopted in practice by the other branches of government that gives the decision legitimacy -- it gives the Court's interpretation of the clause (or issue) legitimacy.
12.22.2006 3:45pm
DavidBernstein (mail):
Alex, you don't need to agree with my theory, but I think Judge McConnell joins me in thinking that the Commerce Clause decisions of recent years are wrong on the grounds I described. Obviously, if you don't think those decisions are wrong to begin with, there's nothing to argue about.
12.22.2006 3:49pm
juris_imprudent (mail):

How many non-lawyers don't think the federal government has a general police power, and that it is merely custom or practice or considerations of expediency that make, say, local law enforcement local matters?

Well, as a non-lawyer, I dispute that at least in one particular case. I should hope to dispute it more broadly as well, lest I concede a searing indictment on the competence of The People to govern themselves.
12.22.2006 4:24pm
jgshapiro (mail):
Bruce M gets the question right. The Constitution did not give Congress plenary police powers and was never intended to do so. Therefore the grant of power to regulate interstate commerce presumes that there is something outside that set: some things that are not commerce, and some things that are commerce but not interstate commerce.

But try to find an example of something outside that set that Congress does not have the ability to regulate, and you will get no answer from many on the left (and some on the right). They cannot, or are unwilling to answer what was excluded by use of the words "interstate" and "commerce" in the grant of federal power?

Incidentally, I'm not sure how helpful it is to try to guess what can be approved through constitutional amendment as a means of legitimizing past decisions. The formality of forcing people to go through the Article V process imposes a degree of deliberation that you don't get when you simply poll them.
12.22.2006 5:43pm
Dougger (mail):
I am a non-lawyer (no legal education at all) and I don't think that the federal government has a general police power. I know and care about the commerce clause.
There are far more of us than you think.

Congress obviously has no duty to ensure the constitutionality of the laws they pass; the congress has rejected federalism and has used the commerce clause as their vehicle to bypass federalism using tortured definitions of interstate commerce. That some of these laws are starting to be overturned is welcomed by many.

In my opinion judicial review should be expanded to apply to all laws that are passed and already on the books. The fact that I don't have standing as defined by the courts should not be an excuse to let an unconstitutional law remain in force. The court has allowed a tradition of entrenchment allowing time for laws to become "widely accepted" to the point that new generations of Americans have no clue that many of the federal laws and departments that bind them are unconstitutional.

In this same vein, the Department of Education and HUD should be abolished immediately as unconstitutional; unfortunately no one has standing to challenge these laws.

Finally, before all you lawyers brand us (the majority) as ignorant yahoos, take a survey or two and stop speculating on our level of knowledge and concern.
12.22.2006 5:50pm
FantasiaWHT:

I'm clearly one of those people who believes Wickard is one of the worst SCOTUS opinions ever conceived. Particularly when combined with Carolene Products. "Footnote Four" + Wickard = Absolute Despotism and the death of any semblance of limitd government.


I've played Magic: The Gathering in the past, and this just called up a wonderful image of card sets based on Supreme Court decisions, and the "Footnote Fourt" + Wickard being one of those unbeatable combinations that ends a game the second it is played, hehe.

I wonder if Wizards of the Coasts accepts outside ideas... a constitution CCG (collectible card game)... interesting...
12.22.2006 6:15pm
BruceM (mail) (www):
Alex 2005: It is dubious because our government is supposed to be one of limited, enumerated powers; or, conversely, it is not supposed to be a government of unlimited powers that can pass whatever legislation it desires. When the SCOTUS says the power to "regulate interstate and foreign commerce" means Congress can pass any law it desires because everything has some effect upon commerce, however trivial, we are no longer a government of limited powers. According to the Supreme Court, if a butterfly flaps its wings in Florida which creates wind which causes a wind generator in Alaska to produce one ten trillionth of a nanowatt less wind energy that it otherwise would, the butterfly in Florida flapping its wings is part of interstate commerce and can therefore be "regulated" however Congress sees fit. Just as dubioius is the expansive interpretation of the word "regulate" which is supposed to mean "to make regular." Banning something completely falls outside any reasonable penumbra of regulation. Calling this construct dubious is the nicest thing one can say about it. It is 100% wrong in every possible respect, and there is not even a legitimate debate about how or why it might not be wrong. Reasonable minds cannot differ on this. Unreasonable minds thrust it upon us beginning with Wickard and culmulating most recently with Raich. What was the purpose of the American Revolution if we're just going to be stuck with another government of infinite power?

So am I saying the SCOTUS is unreasonable? You bet. Power hungry politicians have done a tremendous job of scaring We the People into supporting their power grab via turning the Commerce Clause into an unlimited grant of power. And things like a "presumption of constitutionality" make it even easier for oppressive legislation. There should be a presumption of UNconstitutionality, and every single law, statute, treaty and regulation should have to pass a strict scrutiny test before it can be effective. To rebut the presumption of unconstitutionality, the government should have the burden to prove--by clear and convicing evidence--that every law is narrowly tailored to achieve a compelling government interest and is the least restrictive means of achieving that interest. 90% of laws will not survive, and that's generous because 99.9% of laws on the books are worthless, unnecessary, and oppressive... so about 10% of laws will still be a shameful embarassment to this nation. But that's another issue for another day.
12.22.2006 6:15pm
BruceM (mail) (www):
FantasiaWHT: Heh, yes, my Wickard combined with my Footnote Four beat your 81st Level White Wizard Paladin, even with your adamantium Sword of Galadriel.
12.22.2006 6:20pm
FantasiaWHT:
ACtually I could really see this... each player has a secret "goal" that is drawn at the beginning of a game- passing a certain law and having it pass judicial review, but that goal requires certain prerequisites like supporters of a certain judicial view (it could be much more complex than lib/con) on the SCOTUS, a certain party in control of the legislative and executive branches at a given time, other precedential cases... Of course all of these prerequisites would also be prerequisites for other goals as well, so it wouldn't be immediately obvious to the other player...

Ok, yes I am a dork, but I think this sounds really cool hehe
12.22.2006 8:35pm
FantasiaWHT:
I wonder which would work better...

1- just focusing on SCOTUS
2- encompassing all branches of gov't with each player being able to effect all three branches
3- having three players, one in charge of each branch and each with a secret goal, but each able to effect the other players' branches through checks &balances
12.22.2006 8:40pm
CJColucci:
Bruce M's question is a fair one, but no one has answered it. Here's my two cents:
1. No direct regulatory role over education via the Commerce Clause. Any "regulation" has to be spending clause bribery or equal protection enforcement.
2. No power to regulate domestic relations under the Commerce Clause: no uniform federal marriage and divorce law no matter how convenient it would be.
3. No power to regulate and punish ordinary violent crime under the Commerce Clause: no federal murder statute for intrastate homicides.
4. No power under the Commerce Clause to set minimum ages for drinking, etc.
5. No power to regulate local "aesthetic" zoning.
This is just off the top of my head and not meant to be exhaustive.
12.22.2006 9:18pm
BruceM (mail) (www):
CJColucci: I wish this question were asked of all federal judges during senate confirmation (rather than abortion claptrap). I certainly agree with your 5 answers. I'd give anything to have this question asked of a presidential/congressional candidate or a federal court nominee.

I think federal criminal statutes are by far the greatest abuse of the commerce clause because not only does it take an infititely expanded definition of 'commerce' with no limits to attenuation, but it also thwarts the meaning of "regulate" in that completely prohibiting something is not a form of regulation. As far as I'm concerned, other than currency counterfeiting, treason, perjury, and piracy on the high seas, all of Title 18 is unconstitutional. Any statute that describes an activity and adds "in or affecting interstate commerce" is unconstitutional as applied in that it is never proven beyond a reasonable doubt that the activity in question was in or affected IC in any way. How can you possess a firearm in or affecting interstate commerce? 30 years ago when the gun was made the parts traveled from one state to another? The iron ore used to make the gun's barrel came from or through another state?
12.22.2006 9:51pm
juris_imprudent (mail):

...it is never proven beyond a reasonable doubt that the activity in question was in or affected IC in any way.

That to me is the unintentionally hilarious aspect of U.S. v. Miller - the indictment alleged movement of the sawed-off shotgun in interstate commerce without the requisite tax stamp. What act of commerce is it to cross a state line? But back then the federal prosecutor knew that simple possession wasn't in bounds for the law. Nowadays, why bother attempting to establish such a nexus.
12.22.2006 11:43pm
BBB (mail) (www):
Dougger:
Congress obviously has no duty to ensure the constitutionality of the laws they pass


On the contrary from Article 6:


The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution


Not only a duty but an oath. That they choose to break their solemn word tells us more about congressmen personally than about their duties.
12.23.2006 2:09am
Alex 2005 (mail):
Bruce M: Indeed, the federal government is one of limited powers. But your post somewhat problematically assumes that there is a brightline definition of what commerce means. And this seems to follow from an implied belief (again suggested by your posts) that the Constitution has a "preset" federalism balance between the states and federal government. Your post also suggests that the Supreme Court owes no deference to Congress' understanding of what affects commerce or not. And further your post suggests that the Supreme Court ought to be the arbiter of federalism "disputes" between the states and Congress. I am not really sure you are correct on any account. But I am going to limit myself to one issue - the Court's role in striking the correct federalism balance. The Supreme Court has declared (in Garcia) that issues of federalism are best left to the political process. And I think that's entirely correct. If you think that the people are in fact outraged by Congress' "power grabs" then it is up to them to elect new representatives who will show much more affinity for the powers of the states. And if you think the Supreme Court's interpretation of the Commerce Clause is wrong -- well the states can get together and hold a constitutional convention to fix this mistaken usurption of power (e.g., like the response to the Chisolm case that led to the ratification of the 11th Amendment - though admittedly I believe that went through Congress rather than the state convention process). Finally: Do you think the incorporation decisions are wrong? Do you think Heart of Atlanta was wrongly decided?
12.23.2006 2:24am
BruceM (mail) (www):
Alex2005:

With respect to Heart of Atlanta Motel, I am always weary of any expansive reading of the commerce clause, but I do think this was a clear case of Congress regulating commerce. The only question is how attenuated is it to being "interstate" in form or function? I think it's a close call, but ultimately enough affect on interstate (in fact, national) commerce was shown to make it a legitimate law. Three fourths of the HoA Motel's business came from out of state (it was located right on the border). Nowadays laws based on the ICC never involve regulation OR commerce, let alone anything to do with interstate.

I don't think the incorporation decisions were wrong; I think the entire Bill of Rights should apply to the states. Why would We the People decide that we should have rights and protections from only one of the two sovereigns under which we live? Frankly I've never understood the incorporation debate. Why should the First Amendment apply to the states but not the 7th Amendment? Why should part of the 8th Amendment apply to the states but not the other part?

Yes, I do believe that there is a brightline definition of what commerce means, or maybe a better way of saying it is that there is a brightline definition of what commerce is NOT. Pick up the dictionary of your choice, take the definition of "commerce" and interpret it as broadly as possible, and well over 90% of all federal statutes based on the authority of the ICC are nowhere close to being justified by the definition of "commerce." Ditto with "regulate" ... banning/prohibiting is not a form of regulating.

I don't see why the Supreme Court (or any court partaking in judicial review) owes the slightest bit of deference to Congress' understanding of what affects commerce or not. The fiction of "legislative findings" has caused almost as much damage to the promulgation of sensible legislation in America as the jurisprudence of unlimited commerce clause power. Most congressional findings are baseless restatements of either Republican or Democrat party platform. Nearly all congressional findings are erroneous at best, and based on perjury at worst. All the congressional findings supporting the Harrison Narcotic Act of 1914 (carried over to the Controlled Substances Act of 1970) is based nearly word for word on the perjury of Harry Anslinger--all of which was suborned by Congress itself. Just because Congress "finds" Jelly Belly Jelly Beans are a danger to the health and morals of our nation's precious children doesn't make it so, and any act Congress passes in response to that finding has to be constitutional standing on its own. A law's constitutionality can not be affected by a congressional "finding." Surely you are not saying or implying that an otherwise unconstitutional law can be made constitutional by Congress inserting a finding that the law is, in fact, not unconstitutional? That would be asinine. Unfortunately, the SCOTUS gives so much "deference" to Congress that this is pretty much the current state of things.

I don't know where I suggest that the Supreme Court should be the arbiter of federalism "disputes" between the states and Congress. My hatred of unlimited federal legislative power justified by the commerce clause stands on its own and is not based on a belief that congress is taking away power from the states. There are a lot of things I don't think the states have any business legislating, either. But if there is a federalism dispute based on a law passed by Congress, then who else other than the judicial branch should abritrate that dispute? We the People historically cannot be counted on to use the voting process to correct improper, unwise, or unconstitutional laws. Name one bad law directly repealed by a politician who won election based on the platform of repealing said law if elected. We the People don't exercise our voting power that way because it is incompatable with voting for the guy with the best smile who says "god" the most and who scares us the most into thinking only he can protect our children from terrorists and sex offenders.
12.23.2006 3:21am
Jay Myers:
BruceM:

With respect to Heart of Atlanta Motel, I am always weary of any expansive reading of the commerce clause, but I do think this was a clear case of Congress regulating commerce. The only question is how attenuated is it to being "interstate" in form or function? I think it's a close call, but ultimately enough affect on interstate (in fact, national) commerce was shown to make it a legitimate law.

The commerce clause doesn't say that Congress has the authority to regulate things that affect commerce among the states; it states that Congress has the authority to regulate commerce among the several states. There is a very great difference in meaning between having power over everything that affects something and merely having power over the thing itself.

There were two reasons for the commerce clause. One was that under the Articles of Confederation the several states were essentially conducting a trade war among themselves by enacting laws prejudicial against goods and businesses from other states and preferential towards domestic goods and businesses. By transferring interstate commerce to the federal government's jurisdiction, the Framers essentially created a free trade zone encompassing the Union. The second purpose was to give Congress the authority to raise funds by levying taxes on international imports. Perhaps the greatest failure of the Articles had been Congresses' utter inability to fund itself. It had to rely on requests to the states for funds and the states were somewhat reluctant to tax their citizens on Congress' behalf.

I don't think the incorporation decisions were wrong; I think the entire Bill of Rights should apply to the states. Why would We the People decide that we should have rights and protections from only one of the two sovereigns under which we live?

Most state constitutions have far more robust guarantees of rights than the federal constitution. The reason why the bill of rights should only apply to the federal government is that the constitution's only purpose is to authorize and organize our federalist system of government. There are a few limits on the state's powers in the constitution that were thought necessary to the creation of a federalist system but the bill of rights were conceived of solely in order to apply limits upon the powers of the federal government and those limits were based on restrictions that already existed in many state constitutions. The proper place to limit the powers of a state is in the document that gives it those powers. That place is in the state constitution, not the federal constitution.

Frankly I've never understood the incorporation debate. Why should the First Amendment apply to the states but not the 7th Amendment? Why should part of the 8th Amendment apply to the states but not the other part?

Legally speaking, none of those amendments should apply to the states because there is nothing in the constitution that says they should. From a legal philosophy perspective, none of those amendments should be made to apply to the states because that would be abhorrent to a federalist system. The federal constitution sets up the federal government and gives it certain powers. It is proper to tack on a portion of that constitution that says those powers may never be used in certain ways (to limit speech, free exercise of religion, etc.). The state governments are organized by their respective state constitutions and the proper place to limit their powers so that they may never be used in certain ways is in the state constitutions.

Sure, with the supremacy clause you could streamline things by having a single restriction in the federal constitution apply to all of the states as well but that is inelegant and could lead to problems if something happens to the Union. If you view this as writing computer programs then you begin to see the encapsulation problem with having separate programs rely on basic instructions contained in another program. If the file gets corrupted (bad SCOTUS decisions) or lost (civil war?) then you're screwed.
12.23.2006 3:26pm
BruceM (mail) (www):
Jay:

I wholeheartedly agree that "there is a very great difference in meaning between having power over everything that affects something and merely having power over the thing itself." Regulating interstate commerce versus regulating things that affect interstate commerce are indeed two different concepts, the former much narrower than the latter. And I certainly agree that the commerce clause's clear meaning, as well as its intent, was for Congress to have the power to regulate commerce among the several states, rather than anything affecting commerce (even if it affects interstate commerce in a big, profound way).

I disagree that none of the first 10 Amendments should apply to the states on the theory that the States have their own, possibly more protective constitutions. Oppression by the state is no different than oppression by the federal government just like being raped in state prison is no less painful than being raped in federal prison. Why would you not want limits on your state government's power? States cant be trusted to limit their powers any more than the federal government can. Texas shouldn't be allowed to declare Protestantism its official religion any more than the federal government should. If the states want to pass constitutions or amendments thereto more protective of individual rights than the federal constitution, more power to them (no pun intended). In fact, the Bill of Rights is totally illusory if those rights can be violated by any of the 50 states. What's the point? Things like freedom of speech, freedom of religion, due process, jury trial, etc are all things that define our country. The states should be bound by those limits on power merely by virtue of being part of this country. The states should affirm their commitment to these principles by restating them in their own state constitutions. But that is not the only proper place for them. Think of all the times state courts have conceded they have to rule a certain way solely because the 14th Amendment applies the First through Eighth in a binding fashion clearly applicable to the case at hand. But for incorporation, someone would have gotten screwed (likely a criminal defendant).

State courts routinely interpret their constitution in ways to affirm criminal convictions (as does the federal judicial branch to a slightly lesser extent). Without federal constitutional limits as set forth in the Bill of Rights, criminal defendants will have absolutely NO protections at the state level whatsoever. And considering the fact that we both probably believe the Federal government should have no general police power, and only about 4 or 5 criminal statutes, what is the purpose of the 4th, 5th, 6th, and 8th Amendments? Only the states should be performing searches and seizures, so why have a 4th Amendment only applicable to the federal government? Only states should be trying people for crimes, so why have a 6th Amendment right to jury trial only applicable to the federal government?
12.23.2006 8:46pm
K Parker (mail):
CJColucci,

Me!

jgshapiro,

I definitely approve of BruceM's take, and like your formulation even better. But can't we all agree that a big part of justifying the abuse is the pretense that the words "or affecting interstate commerce" is part of the article?

Alex 2005,

Re:
...problematically assumes that there is a brightline definition of what commerce means
I don't see this. Certainly there will be some borderline cases, some hard decisions--but do you really, honestly think Wickard or Raich pass the laugh test?

And then:
what affects commerce
You see? Everyone just buys into this particulary egregious emanation of a penumbra!
12.23.2006 9:13pm