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Old September 8, 2009, 05:10 PM   #26
publius42
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People have a tendency to conflate "interstate" and "commerce." It might be very difficult to disentangle what is necessary and proper to regulate activity between the states and what isn't necessary (esepecially as the economy has become more integrated over time), but it should be fairly straighforward to figure out what is commerce and what isn't. If it isn't commerce, the law should not apply in that case. That could be a sort of affirmative defense.
That's almost exactly what Scalia's argument would sound like if he did not base it on the Wickard case, and if Wickard went away. But he did, and it won't.
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Old September 8, 2009, 08:53 PM   #27
htjyang
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publius42,

If Justice Scalia agreed, he would've joined the majority opinion and then wrote a separate concurrence to lay out his own view. But he didn't. His concurrence was a concurrence in judgment only.

I also think you're putting too much emphasis on what one might consider to be a throwaway line from Roberts. I think he was simply being cautious. Even if there was no authority in Article I, Sec. 8, the government should still be given the chance to make an argument.

I'm not sure there is anything new that can be said about these 2 points. Fortunately, we'll find out the answers a few months from now. US v. Comstock will tell us whether Lopez-Morrison are still operative, how the center-right justices view the Commerce Clause, and perhaps they might put some restrictions on Raich.
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Old September 9, 2009, 12:10 AM   #28
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Although Lopez and Morrison are commerce clause cases, to me it seems they are really addressing federalism issues. The cases are more about preserving state authority than limiting Congressional power, but that can't be addressed in a straightforward way because the 10th amendment has been nuetered. Scalia mentions this state sovreignty issue in his Raich concurrance.

I don't see Comstock changing much; it is really quite similar to Lopez and Morrison, so if the law is struck down it will be as part of the Lopez state authority exception to the commerce clause rather than because no actual commerce or potential commerce is involved (although I think both are necessary given Raich).

All these cases do is preserve power for the states, not liberty for the people.
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Old September 9, 2009, 05:24 AM   #29
publius42
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If Justice Scalia agreed, he would've joined the majority opinion and then wrote a separate concurrence to lay out his own view. But he didn't. His concurrence was a concurrence in judgment only.
I think Scalia knows that Wickard is radioactive to conservatives, and wanted an opinion in this case that relied on it as little as possible.

Quote:
Originally Posted by Scalia
I write separately because my understanding of the doctrinal foundation on which that holding rests is, if not inconsistent with that of the Court, at least more nuanced.
It is not only not inconsistent with the Court, it absolutely depends on Wickard every bit as much as Stevens' opinion.

Quote:
Originally Posted by Scalia
...this Court has acknowledged since at least United States v. Coombs, 12 Pet. 72 (1838), Congress’s regulatory authority over intrastate activities that are not themselves part of interstate commerce (including activities that have a substantial effect on interstate commerce) derives from the Necessary and Proper Clause.
OK, so why is it "necessary" that Congress regulate intrastate, non-commercial things like homegrown wheat, cannabis plants, or machine guns? Because they substantially affect interstate commerce. Remove the Wickard precedent, and where is that argument? Nowhere. His argument falls apart without Wickard, which is why he cited it. He buried it in a footnote because he wanted to leave the impression that it's all about the necessary and proper clause (a part of the Constitution) and not about a New Deal interpretation involving substantial effects (nowhere in the Constitution), but that's nonsense.

Nuanced indeed. More like a derivative of Stevens' argument, all packaged up so as to not scare or offend conservatives by having the word "Wickard" appear in every paragraph.
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Old September 9, 2009, 09:35 AM   #30
htjyang
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green-grizzly,

Commerce Clause and federalism are inextricably linked. First, if the Commerce Clause is strictly enforced, then the 10th Amendment becomes unnecessary. Second, I noted previously that the voting pattern on the Court is identical for these issues. I don't think there is a jurist who believes in a strict construction of the Commerce Clause but is against the 10th Amendment. It seems to me that either judges believe in a strict reading of the Constitution or they don't. For those who do, they have to buy both.

It is true that Comstock doesn't deal with the issue of intrastate manufacture or commerce. But in light of Raich, I think it is important for the Court to reaffirm the idea that there are indeed some limits to the Commerce Clause. The people at Volokh Conspiracy are very concerned that Raich may be used to rule in favor of the government in Comstock.

You should also be aware that one of the reasons why the Framers preserved the structure of federalism is because of the idea that the government that is closest to the people tend to be most respectful of their will. Therefore, limiting federal power and expanding state power does, in an indirect way, expand individual liberty. What people choose to do with that liberty is another issue. In Massachusetts, the people decided to vote in Ted Kennedy, decade after decade, despite his record on gun rights. We have no choice but to recognize the fact that the people of that state care far more about other priorities than the 2nd Amendment.

I happen to have some doubts about the procedure of civil commitment as well. It seems to me to be a case of pre-crime incarceration and I'm very wary of them. But I don't think this fundamental problem was raised before the Court.

As for individual liberty, obviously that's what the 9th Amendment is all about though it is in even worse shape than the 10th. Whereas the 10th is merely comatose, the 9th is essentially dead and buried with no prospect of a miraculous resurrection in the near future. I certainly agree that this state of affairs is very unfortunate and it would be nice if somebody can bring a serious 9th Amendment challenge. But such challenges are expensive. Using Heller as an example, Alan Gura claimed that the case cost him $3.5 million over 5 years. A serious 9th Amendment challenge will require a good lawyer and several years and even then, it is far from clear that the Supreme Court will grant review.

If the 9th is unavailable, then we are left with the enumerated rights. Here, prospects are much brighter. In Citizens United, the Free Speech Clause seems poised for either a small victory or a big victory. I think the Free Speech Clause will win again in US v. Stevens (08-769, also scheduled for the upcoming term) and probably by a comfortable margin. In Stop the Beach Renourishment, there is a reasonable chance that government abuse of eminent domain will be cut back.

I readily concede that the progress that will be made by these cases will be somewhat limited in each individual case. But collectively, (and assuming that things turn out the way I think they will) they show that The System still works. It may not work as quickly and as decisively as we hope, but something is always better than nothing and the something that they provide will pave the way for more in the future.

Last edited by htjyang; September 9, 2009 at 09:44 AM. Reason: corrected spelling
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Old September 9, 2009, 08:25 PM   #31
tyme
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Originally Posted by htjyang
You should also be aware that one of the reasons why the Framers preserved the structure of federalism is because of the idea that the government that is closest to the people tend to be most respectful of their will. Therefore, limiting federal power and expanding state power does, in an indirect way, expand individual liberty. What people choose to do with that liberty is another issue.
The country had 5.3 million people in 1800. Wisconsin and 19 other states have more than that today. Together, those 20 states account for 230 million U.S. citizens out of slightly more than 300 million. (~75%) http://en.wikipedia.org/wiki/List_of..._by_population

The same things our founders feared from the Federal government are taking place today at State level, and even at the city level in some of the large cities. The idea that dual federalism is the salvation of freedom is, I think, woefully mistaken. It would be more accurate to say that limited population density and more direct representation (ratio of representatives to the represented population) are the salvation of freedom.

No doubt dual federalism works pretty well in states like Idaho, Utah, Alsaka, and Vermont. Small population density leads to less crime, less clamor for curtailing freedom, and more direct representation, all of which lead to less abuse of freedom by state governments. However, low population also makes those jurisdictions vulnerable to abuse by any marginal group that congregates in one state and ends up imposing their political will on everyone else in that state.

Why would that matter? Simple: Modern society is radically different than society 200 years ago. Moving between cities or states was a bigger deal back then, and people traveling to a new place would probably have made more of an effort to get to know the local cultural and legal norms before trying to push too many boundaries.

Now people fly all over the place, drive all over the place, communicate across many jurisdictional boundaries, and generally expect the same sorts of laws from place to place. Nobody reads through the entire criminal code of each new state they somehow visit or send communication into, or all the ordinances of the cities and towns they visit. Knowledge of those codes isn't sufficient anyway, because case law often modifies statutory law in unexpected ways.

I am not trying to make an argument specifically in favor of increased federal power; ideally I'd like less federal AND less state/local power. However, federal control does have the silver lining that at least wherever the feds have control, things are consistent. Inconsistency in laws between jurisdictions serves the legal profession, but doesn't serve anyone else.

It's also worth noting that states are just as involved as the Feds in many of the more onerous violations of rights; the feds may lead the way in abusive tactics, but the states buy into them and support them. They do so because they benefit, directly in cases like asset forfeiture, and indirectly in many other cases where the feds pay the states to toe the line. Where two levels of government are both so far removed from the people that they routinely engage in abuses, the higher one can exert a moderating influence on the whims of the subordinate governments; that is a powerful reason for supporting a broad reading of the 14th amendment and incorporation doctrine.

Emphasizing dual federalism not only doesn't stop many infringements on freedom imposed by the larger state governments, but it also leads to more differences in the law between jurisdictions, making traveling or interacting with different jurisdictions more dangerous. In this age of modern communications and frequent travel, that's a serious problem.
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Old September 9, 2009, 09:18 PM   #32
htjyang
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tyme,

When you're talking about abuses of power by the states, you're preaching to the choir here. Living in California, I have substantial experience with how tyrannical the state legislature can be.

Dual sovereignty has numerous merits, only one of which was mentioned in my last post. Another one is the way it reduces the number of people being oppressed and allows people to escape to states that they prefer to live in.

Passing an act of Congress requires only half the states (plus the VP) and a simple majority in the House. That slim majority (which, in the case of the Senate, may not even represent a majority of the population) can impose its will on the entire population. Is it really fair that a slim majority override the will of a substantial minority any time it wishes?

Consider the Massachusetts legislation under discussion. If it is passed by Congress, then it applies to the whole nation. If the people of Massachusetts wish to trade their liberty for a little security, that is their choice. At least its effect is cordoned off in Massachusetts only. For those in that state who disagree with the law but can't change it, they can always move to New Hampshire. If the legislation is passed by Congress, those in a similar position will have to make the much tougher transition of moving abroad. (Obviously, if we're talking about something like the bubonic plague, then that will be another issue. Let me just note for now that the bubonic plague did not happen in the US and we're far more medically advanced than 13th century Europe.)

Another benefit of dual sovereignty is that states can serve as laboratories for new ideas. If these new ideas turn out badly, their effects will be confined to only the states that adopted them. If they turn out well, then other states may adopt them.

Your points about the change in the number of people represented as well as the modern phenomenon of a more mobile population are well taken. In my view, the latter is accounted for by the Interstate Commerce Clause. Even a strict reading of the Commerce Clause should address such concerns.

The representation issue is tough. I really don't know how to resolve it. Some proposed solutions include increasing the number of states by dividing up the most populous states and raising the ceiling of House representatives to, say 1,000. I think these proposals all have their own problems. But I don't see how the representation issue can be an argument for greater federal control beyond what the Framers contemplated. The best solution I can think of is more devolution. The states should devolve more of its own power to localities.
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