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Old September 7, 2009, 11:15 PM   #16
htjyang
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Join Date: September 4, 2009
Location: People's Republic of Kalifornia
Posts: 32
csmsss,

I'm afraid that you misunderstood my position. I specifically stated in my second post that I find the idea of declaring most of the federal government unconstitutional tempting. A strict reading of the Commerce Clause will result in chaos. I don't think anyone should deny that. That's why I agree with Antipitas in that such chaos should be managed by chipping away the State slowly.

My point is that right now, we occupy a very bad position. Even the limited steps taken by the Rehnquist Court to rein in the Commerce Clause attracted opposition in Congress. Furthermore, the division in the Court on the Commerce Clause shows that the center-right majority is only capable of limiting the State at the margins. When it had to deal with a tough challenge like Raich, it immediately collapsed.

So, when you talked about a "re-evaluation of the Commerce Clause", I can only ask: "Re-evaluation" by whom? By the same Congress that has been abusing it? By the courts that have been ignoring such abuse?

I'm suggesting that for those of us loyal to the Constitution of the Framers' that we pick our battles carefully and try to prepare the ground before we initiate combat. We should avoid confrontation when our chances are dim, but hold our ground whenever possible.

The prospects for sharply limiting the Commerce Clause right now are not good. For the foreseeable future, we can only hope for preventing the federal government from assuming general police powers. We also might chip at the edges using the individual rights enumerated in the Constitution and other constitutional doctrines such as the Takings Clause.

That's why I expressed my hope in my second post that a state should confront the federal government with a claim involving the intrastate manufacture of firearms. Such a claim bolsters a Commerce Clause challenge (which, standing alone, is likely to fail) with a 2nd Amendment foundation and offers some reasonable hope for success. At worst, we'll end up where we are. This is one of those situations where we have little to lose but much to gain. A victory in such a case will undermine the very foundation of Wickard.

I mentioned in my 3rd post that the Court is likely to rebuke the federal government in Citizens United. I also mentioned the Takings Clause. In the Court's upcoming term, it has unexpectedly taken up the case of Stop the Beach Renourishment, a Takings Clause case. It was unexpected because the Court had not dealt with the Takings Clause for quite some time. The last time that it did was the disastrous Kelo v. New London. Conservatives have been doing reasonably well since Chief Justice Roberts and Justice Alito joined the Court and I'm cautiously optimistic about Stop the Beach Renourishment because the lower courts have already endorsed the state of Florida's action. Statistics suggest that the Supreme Court reverses lower courts in 65-75% of the cases that it takes. Since it takes 4 votes for the Court to accept a case, we can be reasonably confident that the conservative justices chose to take the case. After all, the lower courts already reached the result that the liberals wanted so they had no reason to disturb their verdict. If the conservatives took the case, that suggests they believe there is a reasonable chance of winning.

This is the type of legal action I prefer: Surgical strikes aimed at cutting back the State's abuses of power. Admittedly, none of them deal with the Commerce Clause directly. The purpose here is to get the Court to become more comfortable in challenging Congress. In time, they can form a body of precedents that the courts will be comfortable in following.

A direct challenge to the Commerce Clause is very worrisome. The defeat in Raich puts previous successes like Lopez and Morrison in jeopardy. That's why I'm concerned about Comstock. It's another direct challenge. Unfortunately, it's filed by some criminals. That type of last ditch appeal cannot be prevented and we can only hope that the Court will do the right thing.

Or consider Heller. The NRA was very worried about such a case and in light of the close division on the Court, who can blame them? Even then, the case was far from a rash action. Robert Levy spent quite some time finding the right plaintiffs, making sure that they didn't have a criminal background that may doom his case.

I readily concede that we're not going to see Wickard overturned any time soon. Until we get a favorable majority on the Court, (at least 6 conservatives, preferably more, to provide for some margin of error) we have to be content with such surgical strikes. Sometimes the key to victory is by first avoiding defeats.

One of the benefits of such surgical strikes is that they may avoid attracting retaliation from Congress while giving people time to readjust to the liberties that are their due but they have surrendered over the years.
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