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June 7, 2009, 09:16 AM | #1 |
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Could the United States function with a narrow reading of the Commerce Clause?
First, I imagine some of you may be wondering how the "commerce clause" has any bearing on the right to keep and bear arms. The following short article by Thomas Sowell is a great explanation of both the commerce clause, how it has been misinterpreted of late, and how it affects your gun rights (and you can read the entire thing in less than 5 minutes).
Some quick background for those just coming to this debate can also be found at Wikipedia and in this more scholarly article by Glenn Reynolds for the CATO Institute. So now that we have some background, my question for discussion: Could the United States continue as we know it if the Commerce Clause were interpreted more narrowly? If everything from the USDA to FDA to medical devices to gasoline in your fuel tank were suddenly regulated by the state instead of the Feds, would quality of life improve or would we see life become more complex and regulatory? |
June 7, 2009, 09:27 AM | #2 |
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I think we'd get by just fine. If you look at the FDA alone the length of time that they take to allow a new drug to come to market often kills as much as 10x the number saved by keeping a bad drug off the market. For example a new heart medication that they estimate will save 10,000 lives per year but took ten years to gain approval equals 100,000 lives lost by the delay. I'd rather have the 50 states make make choices for themselves. And nothing will stop them from banding together and pooling resources to share the cost of drug approval.
Moving the food safety issue to the states is also a winner. That brings accountability much closer to the people. A faceless bureaucrat in Washington is far less accoutable than a local official.
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June 7, 2009, 11:03 AM | #3 |
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Which would be better in terms of bringing government power closer to the "We The People" Ideal? A diverse collection of States with their own powers, or one large "State" ? I Can't see having the Interstate Commerce Clause, reduced to the latitude it was designed to have, as anything but positive. The only subset that would see an increase in difficulties would be to those who now abuse it's authority. It would be somewhat of a reversal back from "united state" back to United States.
Economically, I would think it would be a wash, monies that are now used by the FDA, USDA, etc. could go back into State coffers, and used for the same purposes, simply administered by State governments.
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June 7, 2009, 05:25 PM | #4 |
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Yeah, but what happens when you take your California approved Oxycotin to Texas and they say it is an illegal opiate and that your 30 day is sufficient to charge you with trafficking? Hope you are ready to hear your burly Mexican cell mate singing "Up in the west Texas jail of El Paso, I met a pretty young American boy" as you fall asleep crying each night.
I just found out that when I pay $20 for my hunting license this year the Fed is going to give ODNR $60. That is the problem. ODNR, a long with every other state department/bureau/whatever is entirely owned by the federal government. It might as well be national government, at least then some of the overlap and blame games would be eliminated. |
June 7, 2009, 05:33 PM | #5 | ||
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June 7, 2009, 10:08 PM | #6 | |
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The Firearms Freedom Act(s) being passed in several states have the potential to push this issue in short order. We may be seeing a major "10th Amendment v. Commerce Clause" death match in the courts in the next couple of years. Back to the original question, I'd say yes. The United States functioned just fine under strictly enumerated Powers until 1933.
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June 8, 2009, 10:04 AM | #7 | ||
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The dramatic change is that the DOL would be out of business, as there is not even a remote chance that job safety has anything whatsoever to do with interstate commerce. Some might object to that. Quote:
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June 8, 2009, 10:38 AM | #8 | |
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I am pointing out that the Fed, to a large extent, runs the states now. They can threaten federal funding and force them to capitulate on almost anything. |
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June 8, 2009, 10:54 AM | #9 | ||
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June 8, 2009, 11:12 AM | #10 |
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A narrow reading? I'm confident we'd survive just fine WITHOUT the commerce clause.
(Pretty good articles BTW)
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June 8, 2009, 12:31 PM | #11 | |
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Labor laws. Agreed. Nothing in the constitution that gives the feds any say in this area, short of a government contract of some sort. Nationalization. No power whatsoever granted to the feds to run any businesses at all. Gun laws. I might argue that the feds could under the 2nd and 14th set limits that states could not exceed as to what infringements of the RTKBA are allowed. Most of the existing gun laws are patently unconstitutional, with the possible exception of some of the NFA stuff, as it is tax based, and you might be able to argue for it, although it is a stretch. Federal laws on what guns can and cannot be imported are probably constitutional, as the feds have a lot of power in this area.
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June 8, 2009, 07:10 PM | #12 | |||
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To quote John Ross: Quote:
US v. Miller was the big test, and unfortunately, we were in the Hugo Black period, after which the Supreme Court had abandoned any pretense of opposing FDR. If Miller had gone before the Court one year earlier, the NFA may very well have been declared unconstitutional, as it had been on the appellate level. When Miller first went up for appeal in Arkansas, Circuit Judge Ragon ruled that, "the National Firearms Act is not a revenue measure but an attempt to usurp police power reserved to the States." When it went before the Supreme Court (two months later), one of Barry's arguments in favor of the NFA was that the Treasury had jurisdiction because the shotgun had been transported across state lines. Never mind that there was no "commerce" involved. Guns or wheat: the Feds had a mandate to regulate whatever they wanted. Quote:
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June 8, 2009, 07:37 PM | #13 | |
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I think states just need to challenge the Federal government a lot more on issues pertaining to the commerce clause. For instance, on the 922r regulations. There is a large shipping and receiving port in Savannah, GA and GA's gun laws are pretty relaxed. I think with a unified effort by gun retailers, owners, and a member or two of GA's state legislature we could have one shipment of non 922r compliant guns come in and go out to retailers let the Federal gov find out about it and then tell them to do something about it. This is assuming you could get the guns past customs agents.
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June 8, 2009, 08:29 PM | #14 | |
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I mean, really, do you know what a bad idea this would be for everyone involved in such a scheme? The whole endeavor would be crushed in short order, and what then? Every participant would be spending the next couple of decades in prison, at the very least. I can only imagine the consequences for those in state government who agree to such a thing. Even organizing it could be construed as conspiracy and prosecuted. This is precisely how constructive change does not happen. Back to topic, if we were to see a stricter reading of the Commerce Clause and a return to pre-FDR Enumerated Powers, I don't think the FDA and USDA would simply evaporate. It would be a very gradual process, and while those organizations would likely survive, they would likely be pared down somewhat.
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June 8, 2009, 09:52 PM | #15 | ||
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This is another one of our great hypothetical threads that is totally irrelevant because no one is going to do anything anyways.
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June 8, 2009, 11:02 PM | #16 | |||
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June 9, 2009, 11:14 PM | #17 |
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The Interstate Commerce Clause was originally intended to regulate foreign commerce, commerce with the Native Americans, and commerce between the states. In this capacity I believe it to be quite useful. However, I take issue when it is paired with the Necessary and Proper Clause to extend power of the federal government to areas they would otherwise have had no power to regulate. This kind of abuse was foreseen by Patrick Henry and other Anti-Federalists that claimed that the Necessary and Proper clause would provide boundless power to the federal government.
As it turns out, Patrick Henry was right. It is not the Commerce Clause in and of itself that is the enemy to the 2nd Amendment. I believe it is the Necessary and Proper clause. Only when paired with the Necessary and Proper Clause is the Commerce Clause any real threat to 2nd Amendment rights or any other right for that matter. To sum up my view: I don't believe restricting or more narrowly interpreting the Commerce Clause is necessary to protect our rights. I believe that if one more narrowly interprets or does away with entirely the Necessary and Proper Clause, you thereby remove the only thing that makes the Commerce Clause threatening. |
June 12, 2009, 04:01 PM | #18 |
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I think we're always better off when the states are allowed to respond to their constituents and we don't have to worry about what they want in CA or MA .... states rights need to make a comeback IMHO
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June 13, 2009, 07:41 PM | #19 | |||
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When the clause was written, the federalists argued that it was not needed because if Congress were granted the power to regulate commerce, then obviously they were granted the power to pass any laws which would be necessary and proper in pursuit of that goal. How else are they expected to do it? If we had not written the necessary and proper clause into the Constitution, something functionally like it would have emerged from case law, and probably very early on. I think the problems I see with the commerce clause come from expanded views of what is commerce and what is interstate. Homegrown wheat, cannabis plants, and machine guns for personal use don't seem to me to be interstate or commerce. But they are said to substantially affect interstate commerce. As Kozinski put it in the Stewart case: Quote:
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June 13, 2009, 07:50 PM | #20 |
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I'm comfortable the way things are, with maybe just a little bit more federal involvement for the sake of greater rights. Certainly "states rights" is a meaningless term, used to restrict freedom and equality.
A little socialism for us normal folks would be a good thing, as opposed to socialism for bailed-out companies while the bill goes to us. |
June 14, 2009, 02:08 AM | #21 |
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Interesting post, ImprobableJoe. I like your moxie.
A little socialism would be good for us? Well, get ready. A bunch of people are fixing to passionately disagree. However, you bring up an interesting point. Every U.S. citizen lives with some degree of socialism. Social Security? Redistributing my tax dollars to pay for your grandpa's bills. Socialism. Live in Tennessee? You pay something called TennCare. My tax money goes to pay for some poor or lazy guy's medicine. Socialism. How many people bought a house with some form of government down payment assistance or a subsidized loan? Umm... that was tax money. Yours and mine. Socialism. Got a tax rebate under Bush? Look at that! Socialism. Do I agree that more socialism would be a good thing? Well, I don't think so. As a matter of fact, I believe one of the quickest fixes for many of our problems is to remove a lot of the socialist things from our system. But, I do see your point about socialism for the big companies. That I agree with completely. I know the Commerce Clause gives the government the right to do that to regulate interstate and foreign commerce, but it has been a gross misuse of tax money. |
June 14, 2009, 04:53 AM | #22 | |
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The federal government came along and said no, if one person can do it so can millions (the "aggregation principle), and if millions do it, it can affect interstate commerce (the "substantial effects" test). Seems to me that in that case, the "states rights" argument was advancing more individual freedom, while the "commerce clause/federal power" argument was restricting it. A very similar argument occurred in the US v Oregon case about physician assisted suicide. Once again in that case we saw the State of Oregon affording a freedom to their citizens that did not meet with federal approval. Once again the argument was "states rights vs commerce power of the feds" with the states rights side arguing for greater individual freedom. In the famous Lopez case, the argument was that state and local governments, if anyone, should make regulations about how close to a school you can be with a gun. The counter-argument was that guns near school affect (guess what?) interstate commerce, and are a federal matter. Once again, the states rights argument favored greater individual freedom and less central control from the federal government. In the Stewart case, the 9th Circuit initially said that a homegrown machine gun for personal use is not subject to federal regulation under the commerce power. The "states rights" argument says that we should be allowed to design and build our own machine guns for personal use without federal interference, while the "commerce clause/federal power" side says that the feds have the power to ban that activity. Yet again, the states rights argument is the one that affords more individual freedom, and the federal power argument is on the side of restricting individual freedom. It's true that over a hundred years ago, the states rights argument was used in a racist way to restrict freedom for some people, but those 4 examples show which way the tide has turned. It seems to me that these days, the commerce clause/federal control argument is the one without substance, and the one used most often to restrict freedom. Got 4 or more recent examples going the other way? |
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June 14, 2009, 04:03 PM | #23 |
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A constitutional convention would be disasterous. the new constitution would simply legalize all of these bad and currently illigal,but ignored practices. it would result in a drastic increase in federal powers. We would become the USRA, United Socialist Republic of America.
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June 14, 2009, 04:23 PM | #24 |
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Oh boy! Two publii on a commerce clause thread! Look out!
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June 15, 2009, 03:28 PM | #25 | |
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Congress, lacking imagination, simply points to the commerce clause these days when anyone challenges their authority, and the courts nod sagely and move on. At least, that's what usually happens... Your comment brought to mind something I heard about during the confirmation hearings for Chief Justice Roberts. It seems the environmentalist lobbies didn't like his nomination. Why? Anti-environment, of course. OK, so what did he do that was "anti-environment" while being a judge? He stated in a ruling that he did not believe that toads found only in California were subject to federal authority under the interstate commerce clause. Believe it or not, what I found amazing was NOT that a court is even seriously considering the question of whether an indigenous California toad is interstate commerce or not. What I found amazing was what Roberts said NEXT. He went on to say that he might uphold the Endangered Species Act on some other grounds, but he did not think the toads were interstate commerce. OK, what other grounds? Go ahead. Look at article 1, section 8 of our Constitution and find for me the authority by which Congress might write a law like the ESA. Oh, and don't use the commerce clause. Good luck with that. If you get frustrated and can't find it, just remember that the Chief Justice says it's in there someplace. (I can't find it either.) |
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