Where In The Constitution...

[elwoodblues]

Before I respond, let me just clarify one mistake in a prior post. You mentioned:
[ QUOTE ]
OK let's see...here is the text of the Commerce Clause:

""To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

[/ QUOTE ]

That actually isn't the interstate commerce clause. That clause deals with transactions where the state (or foreign nation, or Indian Tribe) is actually a party to the transaction.

[ QUOTE ]

Is selling drugs from one person in California to another person in Idaho an act of interstate commerce? If no, what part of the definition of "interstate commerce" is missing? [ QUOTE ]
Of course it is interstate commerce.

[/ QUOTE ]

[/ QUOTE ]

Okay, so do you concede that Congress has the ability to regulate these types of transactions? (whether they should regulate them is a different question)

How about a transaction between two residents of California where party A sells the drugs and party B is known to re-sell them in other states. Is the transaction between A & B a transaction involving interstate commerce?

[ojc02]

[ QUOTE ]
That is a statement of economic and social ideology, not a Constitutional argument.

As I said before: the Lochner-era cases (driven by right-wing social and economic ideology, rather than Constitutional accuracy) were activist to their core, and FDR was right to finally put a stop to it and restore Congress' regulatory authority to its proper Constitutional position.

[/ QUOTE ]

Ok, this seems to be the crux of your argument (I think). Everything else you said seems to stem from this. I'm not trying to be argumentative but I really don't understand your perspective on this.

As I understand it, judicial activism is when the judges add meaning to the constitution that wasn't there before.

So, the constitution says:
[ QUOTE ]
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

[/ QUOTE ]

Now the question becomes the definition of the word "liberty", right? What do you consider to be the definition of the word?

From dictionary.com:
[ QUOTE ]
1. freedom from arbitrary or despotic government or control.
2. freedom from external or foreign rule; independence.
3. freedom from control, interference, obligation, restriction, hampering conditions, etc.; power or right of doing, thinking, speaking, etc., according to choice.
4. freedom from captivity, confinement, or physical restraint: The prisoner soon regained his liberty.

[/ QUOTE ]

Can you explain to me how this does not include freedom to come to agreement with others? Given we need to contract with others for virtually everything we do (unless we're subsistence farmers), I don't see how you could possible think "liberty" doesn't include this.


Edit:
Did they need to specify absolutely every possible liberty to satisfy you?
ie
"nor shall the state deprive any person of the following rights:
1. Reading twoplustwo
2. Posting on twoplustwo
3. Making a poll on twoplustwo
4. Donking the turn
5. MSPainting
6. Saying: 'DUCY?'
7. Accusing someone of Argumentum ad hominem
etc etc"
I think this might get a little excessive, don't you?

[QuadsOverQuads]

[ QUOTE ]
Can you explain to me how this does not include freedom to come to agreement with others?

[/ QUOTE ]

That is a fundamental misstatement of the Constitutional position.

The question isn't whether people can make contracts. It is whether the act of "making a contract" nullifies all federal regulatory authority under the Commerce Clause.

According to ACers, it does.
According to everyone else on planet earth, it doesn't.


q/q

[NeBlis]

[ QUOTE ]
[ QUOTE ]
Can you explain to me how this does not include freedom to come to agreement with others?

[/ QUOTE ]

That is a fundamental misstatement of the Constitutional position.

The question isn't whether people can make contracts. It is whether the act of "making a contract" nullifies all federal regulatory authority under the Commerce Clause.

According to ACers, it does.
According to everyone else on planet earth, it doesn't.


q/q

[/ QUOTE ]

NO its not to "nullify all federal regulatory authority"

Its the question of whether a free people should be able to enter into a simple business arrangement. Without the constant threat of the imperial federal government forcing its money grubbing hands into a place where it has no business under any reasonable stretch of constitutional powers.
This isn't an AC thing its a survival thing. If you wanna throw up the ZOMG!!1 AC-ism strawman by all means go for it. But some of us just want to live and provide for our families

[ojc02]

[ QUOTE ]
[ QUOTE ]
Can you explain to me how this does not include freedom to come to agreement with others?

[/ QUOTE ]

That is a fundamental misstatement of the Constitutional position.

The question isn't whether people can make contracts. It is whether the act of "making a contract" nullifies all federal regulatory authority under the Commerce Clause.

According to ACers, it does.
According to everyone else on planet earth, it doesn't.


q/q

[/ QUOTE ]

Ok, good, that's all I was looking for.

I'm going to say it does because subjectively I think that part of the constitution is FAR more important than the interstate commerce clause (although the interstate commerce clause has been used to death). I think if you'd told the writers of the constitution that they could only keep one of the liberty clause, or the interstate commerce clause, I'm guessing they'd have kept the liberty clause.

What happens if you run your business only in a certain state, shouldn't you then definitely be exempt from all labor laws?

[QuadsOverQuads]

[ QUOTE ]
I'm going to say it does because subjectively I think that part of the constitution is FAR more important than the interstate commerce clause

[/ QUOTE ]

Constitutional law doesn't work that way.

You don't get to pick and choose which parts of the Constitution you like more and which ones you like less.

[ QUOTE ]
What happens if you run your business only in a certain state, shouldn't you then definitely be exempt from all labor laws?

[/ QUOTE ]

You are asking where federal regulatory authority (ICC) ends. Under Wickard v. Filburn, the reach of ICC authority is quite broad (anything impacting on interstate commerce is subject to federal ICC authority).

In the absence of federal regulatory power, then state regulatory power comes into play. This is a BIG point, because ACers also deny state-level regulatory authority (see Lochner, et al), although they usually dress up their pitches to avoid this question.

At a more fundamental level, what you are asking is this: how can you set up a business so that it is never, ever subject to American labor law? (no minimum wage, no regulation of work hours or conditions -- basically, setting up an American sweatshop system).

My quick answer is this: America moved beyond third world labor practices two generations ago. If that bothers you, feel free to go work in a sweatshop in Bangladesh for a few years. I suspect after that you'll see the wisdom in what your grandparents fought for in this country.


q/q

[zyqwert]

[ QUOTE ]

OK let's see...here is the text of the Commerce Clause:

""To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

The germane part says "to regulate Commerce...among the several states".

I think a reasonable interpretation would be that that includes: commerce, trade...not "any conceivable activity that somehow touches on interstate commerce directly or indirectly, closely or remotely."

The way I see it, the federal government has the right to regulate interstate commerce itself...not anything and everything that may somehow be related to interstate commerce. That's how the clause reads, and that's how I think it should be read.

[/ QUOTE ]

I agree with your interpretation, it seems obvious to me (with no legal training) that's exactly what the words mean. I imagine the commerce clause giving the federals powers like the WTO has. Nobody expects the WTO to get involved with purely internal matters, and nobody should expect the same from the commerce clause either.

I think lawyers are handicapped when reading the constitution. When there is an incorrect supreme court decision that "makes stuff up" in the constitution, it becomes a precedent. Then a whole bunch of cases get resolved using that precedent. The unusual interpretation is taught in law school. Eventually the plain meaning is forgotten and wrong. Lawyers have to reconcile the plain meaning against the supreme court decisions, and they naturally consider the supreme court 'correct' since it predicts the outcome of litigation. It does give constitutional law a certain Alice in Wonderland quality though.

[John Kilduff]

[ QUOTE ]
Before I respond, let me just clarify one mistake in a prior post. You mentioned:
[ QUOTE ]
OK let's see...here is the text of the Commerce Clause:

""To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

[/ QUOTE ]

That actually isn't the interstate commerce clause. That clause deals with transactions where the state (or foreign nation, or Indian Tribe) is actually a party to the transaction.

[/ QUOTE ]

Well, here's what Wikipedia says:

"Article I, Section 8, Clause 3 of the United States Constitution, known as the Commerce Clause, empowers the United States Congress "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

Courts and commentators have tended to discuss each of these three areas as a separate power granted to Congress. It is therefore common to see references to the Foreign Commerce Clause, the Interstate Commerce Clause, and the Indian Commerce Clause, each of which refers to the power granted to Congress in this section."

I was just quoting directly from that.

[ QUOTE ]

Is selling drugs from one person in California to another person in Idaho an act of interstate commerce? If no, what part of the definition of "interstate commerce" is missing? [ QUOTE ]
Of course it is interstate commerce.

[/ QUOTE ]

[/ QUOTE ]

[ QUOTE ]
Okay, so do you concede that Congress has the ability to regulate these types of transactions? (whether they should regulate them is a different question)

[/ QUOTE ]

Yes, if the transactions they are regulating cross state lines. Nothing in the clause appears to give them the right to regulate an entire industry merely because some transactions cross state lines. The federal government is empowered to regulate the transactions that cross state lines. That is precisely the "type" of transaction the federal government is empowered to regulate.

[ QUOTE ]
How about a transaction between two residents of California where party A sells the drugs and party B is known to re-sell them in other states. Is the transaction between A & B a transaction involving interstate commerce?

[/ QUOTE ]

No it is not; it is a transaction involving intrastate commerce. The transaction between B and C (if C is in another state) is interstate commerce.

Persons selling from (sequential chain): San Diego to San Franscisco to Fresno to Salt Lake City - the only part of that sequential chain that is interstate commerce, is the transaction between the party in Fresno and the party in Salt Lake City. That's the clear meaning (and it's also similar to the principle upon which sales taxes are collected, if I'm not mistaken: if the party in Salt Lake City is known to sell to Miami which then sells to New York, state sales taxes for New York are not collected from the party in Salt Lake City merely because he is known to sell to a party which sells to New York).