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I always get a laugh out of folks who say things like,
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Originally Posted by Robeaux
As with most things in the Constitution, things haven't played out the way the founding fathers intended. They were given lifetime appointments so they could truly "judge" without fear of political retribution. Also, the founders only intended for the Supreme Court to decide whether or not legislation was Constitutional.
And then go to state things like;
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Today, they're legislating from the bench and the only way to overturn one of their decisions is to amend the Constitution.
It's the Supreme Koch, they are bought and paid for
Hahah, nice. And like all of the creeps in the Legislative and Executive branch are not, for the most part corrupt and rotten to the core..........including the Democrats.
And how about that tort reform that will not happen on a large scale............hahaha, blocked by the ambulance chasing Dems.
No branch of government is infallible, hence the three equal branches.
If the supreme court rules something is unconstitutional, the solution is simple, change the constitution.
First, the branches of government are not equal. They can check and balance each other to some extent, sure, but they are not equal. In fact, the founders believed the Legislative branch was by far the most powerful branch of the government and should be kept that way.
The problem with the Supreme Court is that, it is the one that interprets constitutionality. Sure, you could make an amendment to the constitution, but first, it is nearly impossible to do, and what would such an amendment actually say to prevent the Supreme Court from becoming too powerful again? Because again, they determine constitutionality, and they would again have the power to interpret the new amendment any way they so choose.
Lets look at "Judicial review" really quickly to understand the problem. Judicial review is not actually in the constitution, nor is it inferred by the constitution. And before the constitution was ever ratified, the Anti-federalists argued against the potential despotism of the Federal Judiciary...
"The supreme court would then have a right, independent of the legislature, to give a construction to the constitution and every part of it, and there is no power provided in this system to correct their construction or do it away. If, therefore, the legislature pass any laws, inconsistent with the sense the judges put upon the constitution, they will declare it void."
Even in Marbury v. Madison, the victor in that case were the anti-federalists under the presidency of Thomas Jefferson. Yet, Jefferson utterly despised the concept of judicial review. He believed that it would be "placing us under the despotism of an oligarchy."
So what is the solution for preventing the Supreme court from allowing its justices to issue their own ideology through liberal interpretations of the constitution? Well, the only real solution that the Legislature or Executive branch can really offer up, is just enlarging the courts and appointing more justices to get its desired results(like FDR wanted to do). But is that really a solution? No.
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Originally Posted by Glitch
The Dormant Commerce Clause is more than just a creation of the "Supreme Court justices to further their policing powers." There are restrictions placed upon the States concerning international and interstate commerce under Article I, Sections 9 & 10 of the US Constitution. This power to regulate international and interstate commerce was specifically granted to Congress.
Additionally, if one state could enact a law that effectively nullifies Congress' authority to regulate interstate or international commerce, then why did they bother giving Congress the power at all?
You obviously have no ****ing clue what the Dormant commerce clause is. Congress has the right to regulate trade between the states. But what does that actually mean? James Madison in the federalist papers said...
A very material object of this power [to regulate commerce] was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State…ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former…
Which basically means that, the commerce clause was to be used to prevent one state from benefiting from another state through tolls or taxes or any other means. The states which "import and export through other states" were generally the landlocked states who were worried that the coastal states would attempt to force them to pay large duties for the passage of goods through them.
On the other hand, what the Dormant commerce clause tries to imply is that, anything that might have a negative effect on trade is unconstitutional.
Lets take for instance, Kassel v. Consolidated Freightways Corporation of Delaware. The freightways corporation brought suit against a law in the state of Iowa that limited the length of semi-trucks within its borders to 55-feet in length. The other states surrounding Iowa allowed semi-trucks that were 65 feet in length or longer.
The Supreme court decided that since there wasn't significant enough evidence that 65-foot trucks were less safe than 55-foot trucks, and since Iowa was the only state in the region that didn't allow 65-foot trucks, that the existence of such a law would have a "negative effect on interstate commerce". Therefore, Iowa was then forced to allow semi-trucks that were 65-foot in length.
In fact of the ten cases that I listed in this post that have to do with the commerce clause, every single one of them were decided by the supposed "dormant commerce clause".
You should read this article to understand a little more about the commerce clause's original intent, vs what has become of the commerce clause.
With regard to your other statements, you need to read Article III of the US Constitution. Congress has oversight of the courts, just as they have oversight of the Executive Branch. And yes, Congress has impeached Supreme Court justices, Samuel Chase for example. Supreme Court justices "shall hold their offices during good behavior", and Congress is the judge of that behavior.
First, Samuel Chase was the only Supreme court justice to ever be impeached(and he wasn't even removed from his office). And why was he impeached? Because he was a staunch federalist, and was believed to be "legislating from the bench". And when did this happen? More than 200 years ago.
Samual Chase was far from the last Supreme court justice to "legislate from the bench". So if "being biased" is an impeachable offense, then practically every supreme court justice that has ever served should have been removed from office. But as we know, none of them have.
So my question is, should we just allow people who are life-termed and unelected to effectively govern from the bench? What else can we do? Can't we find a better solution?
Charles Evans Hughes, who would later become Chief Justice of the Supreme Court, famously said about a century ago that the Constitution is “what the judges say it is.” Since judges cannot change the words of the Constitution, Hughes was really saying what today seems to be widely accepted, that the Constitution means whatever judges say it means. But if Hughes was right, then judges in effect become the Constitution and judicial review means that statutes must yield to judges. And if the Constitution means whatever government says it means, then government determines the limits on its own power."
You obviously have no ****ing clue what the Dormant commerce clause is. Congress has the right to regulate trade between the states. But what does that actually mean? James Madison in the federalist papers said...
A very material object of this power [to regulate commerce] was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State…ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former…
Which basically means that, the commerce clause was to be used to prevent one state from benefiting from another state through tolls or taxes or any other means. The states which "import and export through other states" were generally the landlocked states who were worried that the coastal states would attempt to force them to pay large duties for the passage of goods through them.
You obviously have no ****ing clue about the US Constitution. Article I, Section 9, Clause 6 states "No preference shall be given by any regulation of commerce or revenue to the ports of one state over those of another: nor shall vessels bound to, or from, one state, be obliged to enter, clear or pay duties in another."
Additionally, Article I, Section 10, Clause 2 states "No state shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing it's inspection laws: and the net produce of all duties and imposts, laid by any state on imports or exports, shall be for the use of the treasury of the United States; and all such laws shall be subject to the revision and control of the Congress."
You obviously have no ****ing clue about the US Constitution. Article I, Section 9, Clause 6 states "No preference shall be given by any regulation of commerce or revenue to the ports of one state over those of another: nor shall vessels bound to, or from, one state, be obliged to enter, clear or pay duties in another."
Additionally, Article I, Section 10, Clause 2 states "No state shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing it's inspection laws: and the net produce of all duties and imposts, laid by any state on imports or exports, shall be for the use of the treasury of the United States; and all such laws shall be subject to the revision and control of the Congress."
You might want to actually give a read sometime.
You do realize that neither of these things have absolutely anything to do with the dormant commerce clause, right? These things do have to do with the commerce clause though. But the commerce clause is not the same thing as the dormant commerce clause, and I think that is where you become confused.
The dormant commerce clause doesn't actually exist at all, it was just authority that the Supreme Court inferred on itself through a liberal interpretation of the constitution.
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The "Dormant" Commerce Clause, also known as the "Negative" Commerce Clause, is a legal doctrine that courts in the United States have inferred from the Commerce Clause in Article I of the United States Constitution. The Commerce Clause expressly grants Congress the power to regulate commerce "among the several states." The idea behind the Dormant Commerce Clause is that this grant of power implies a negative converse — a restriction prohibiting a state from passing legislation that improperly burdens or discriminates against interstate commerce. The restriction is self-executing and applies even in the absence of a conflicting federal statute.
As I mentioned before, the original commerce clause was intended to prevent a state from trying to put in place taxes, duties, polls, or fees for commerce going between the states. This was primarily to prevent a state like Ohio, from being forced to pay absorbitant fees for goods being shipped through New York's Eerie canal. Congress would have authority to regulate the fees that New York could charge for using its canal system, so that it couldn't charge more than the costs of maintaining the system. Nor could states charge more to traverse their roads than what it costs to maintain them.
A good example of this might even be the gas tax. Each state has their own gas tax, and vehicles passing through states who might need to stop to get gas will have to pay the tax. If a state attempted to tax out-of-state drivers at a higher rate than in-state drivers, then Congress could prevent them from doing so if they chose to. That is how the actual commerce clause was intended to function.
To understand how the dormant commerce clause works, think instead that the previous state had a flat gas tax for both in-state drivers and out-of-state drivers(as they already do now). But imagine that the state in question was charging $2 a gallon in gas taxes, whereas the other states around it only charge $.25 a gallon in gas taxes on average. According to the dormant commerce clause theory, as long as it could be proven that the high gas taxes had a "negative" effect on interstate commerce, then that $2 a gallon gas tax would be unconstitutional. Make sense? I suppose this same argument could even be made for things like sales taxes, or even emissions standards. Anything that could potentially deter a company from wanting to move goods through that state would be deemed to have a "negative effect on interstate trade", and thusly would be unconstutional. Thereby forcing the states to conform to the standards of other states.
In another case that shows off the ridiculous nature of the dormant commerce clause theory is "Wickard v. Filburn."
In this case, the United States government passed a law restricting the amount of land that could be dedicated to wheat production. A farmer was only allotted 11 acres of land that he could plant wheat in, but he instead planted 23 acres, arguing that it was only for personal consumption. Since he wasn't selling his wheat, he felt like he lay outside of the commerce clause, and thus the federal government had no authority to limit his production for personal use. The Supreme Court ruled against him, stating that if he had not produced his own wheat, that he would have instead bought wheat on the open market, which means his personal production had an effect on commerce regardless of if he was selling it or not. In effect, the government could legally restrict his production of anything, according to the dormant commerce clause theory.
That means, the federal government could potentially pass a law preventing people from having personal gardens, because that tomato that you grew yourself, you would have otherwise purchased from the store(contributing to commerce, and probably paying taxes on). So the fact that you instead grew the tomato yourself means you may have had a negative effect on commerce, which means you come under the authority of the dormant commerce clause.
I highly doubt the framers of the constitution, with their intents on liberty and a decentralized government could possibly imagine this overreaching interpretation of the commerce clause, which is probably why it isn't actually in the constitution.
Last edited by Redshadowz; 07-11-2011 at 02:42 AM..
It feels to me that most Americans seem to just take the judgements of the Supreme Court as if they are handed down from god himself. It seems like, once the Supreme Court rules on something, everyone just throws up their hands like thats just the way things are and theres nothing we can do about it.
And maybe that is the case, but why is that the case? Why is the Supreme Court basically unquestionable in the eyes of the public, while every other piece of government is scrutinized and many times overturned?
Why is that people allow five unelected men, who are handed lifetime appointments on the Supreme Court to dictate their lives for them? Isn't the Supreme Court the closest thing to an oligarchy that we have in this country?
It would be different if the Supreme Court was consistent in any way shape or form, but they just aren't. Look at the voting records, half the time it seems like the decisions are 5-4. Basically, half the court disagrees with the other half. Why don't you people see that the Supreme Court is nothing more than the legislature, it isn't special or unique. They vote their beliefs and ideologies.
As an exercise, I pulled the last 10 court cases dealing with the commerce clause.
United States v. Morrison - 5-4. First ruling was overruled, and that ruling was subsequently overruled.
Reno v. Condon - 9-0 for. The first and second rulings were both against, which were later somehow overruled unanimously by the Supreme court.
United States v. Lopez - 5-4 against(thus overruling the "gun-free school zones act").
C&A Carbone, Inc. v. Town of Clarkstown, New York - 6-3 for.
Quill Corp. v. North Dakota - 8-1 for.
Garcia v. San Antonio Metropolitan Transit Authority - 5-4 for. The Supreme court overruled both of the previous rulings.
Building Trades & Construction Trades Council of Camden County and Vicinity v. Mayor and Council of the City of Camden - 8-1 for. The first courts decision was overruled.
Kassel v. Consolidated Freightways Corporation of Delaware - 6-3 for(sort of).
Minnesota v. Clover Leaf Creamery Co - 6-1-1 against(Powell dissented/concurred in parts, one abstaining).
Fullilove v. Klutznick - 5-4 for. This was probably the most ridiculous case of them all, it setup the basis that Congress had the power to use its spending powers in an unfair manner in an attempt to right past discrimination.
Of the past 10 commerce clause cases, four(40%) went 5-4... Why exactly? Primarily they are arguing about a judicial theory called the "Dormant commerce clause", which was not part of the constitution but has been basically created by Supreme Court justices to further their policing powers.
There are so many important Supreme court cases go 5-4 its ridiculous. Overturning the gun ban in Chicago, 5-4. The recent Wal-Mart case sex discrimination case, 5-4. Overturning the ban on violent video games in California, 5-4. And almost every Civil Rights case and affirmative-action case has been decided 5-4, all the way back to the Slaughterhouse cases of 1873.
Why is it that Americans seem to so readily allow five unelected, life-termed men to dictate what is and what isn't permissable, seemingly without question?
This is a good representation of how the court system actually works.
What are the alternatives? I would personally rather the states deal with their own issues. Then if a bunch of jackasses sitting on the California courts decide to interpret the constitution in some biased and ideological way(and they will), I can move to Arizona or vice versa. I despise this unquestioned judicial dictatorship we have now in Washington, that keeps reinterpreting the constitution to mean whatever they want to mean.
Living document my ass.
I don't agree with your premise. many court rulings have caused new legislation.
You obviously have no ****ing clue what the Dormant commerce clause is. Congress has the right to regulate trade between the states. But what does that actually mean? James Madison in the federalist papers said...
A very material object of this power [to regulate commerce] was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State…ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former…
I just don't have the time or inclination to go through the majority of your inaccuracies so I have to be a bit selective. Is it your argument that Madison was making a case for states, sovereign entities, or the people of the effected states, because if it is the former I'm dying to know what trade enterprises that "states" were involved to make your argument logical because if states were not acting as exporters then clearly Madison, in this case, was referring to the people of various states.
I just don't have the time or inclination to go through the majority of your inaccuracies so I have to be a bit selective. Is it your argument that Madison was making a case for states, sovereign entities, or the people of the effected states, because if it is the former I'm dying to know what trade enterprises that "states" were involved to make your argument logical because if states were not acting as exporters then clearly Madison, in this case, was referring to the people of various states.
I'm not sure exactly what your question is, so let me just attempt to break down what Madison is saying sort of line by line.
A very material object of this power [to regulate commerce] was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter...
I would assume this line means, "A major reason for the commerce clause, was so that states which have to transport goods through other states, aren't forced to pay unfair fees for this right".
Were these at liberty to regulate the trade between State and State…
This would mean "Were the individual states each given complete freedom to regulate trade between each other."
ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former…
And this last section means... "Then the Individual states would find a way to charge unfair fees or duties that would fall on both the manufacturers(exporters) in one state, and the consumers(importers) in another state, for that states benefit."
Put it together....
"A major reason for the commerce clause, was so that states which have to transport goods through other states, aren't forced to pay unfair fees for this right. Were the individual states each given complete freedom to regulate trade between each other. Then the Individual states would find a way to charge unfair fees or duties that would fall on both the manufacturers(exporters) in one state, and the consumers(importers) in another state, for that states benefit."
For instance, Hamilton's primary argument for the need for the commerce clause, was based on Germany, in which he said in the Federalist papers #22.
"The commerce of the German empire is in continual trammels from the multiplicity of the duties which the several princes and states exact upon the merchandises passing through their territories, by means of which the fine streams and navigable rivers with which Germany is so happily watered are rendered almost useless."
Basically what Madison and Hamilton wanted, was to allow Congress to prevent the states from charging any fees for using their territory for the passage of goods, outside of just the cost to maintain the passageways.
As an example, lets say Maine wanted to sell lobsters to Vermont customers. Without a commerce clause, New Hampshire could charge some kind of exhorbitant fees to both the Maine lobster produces and the Vermont lobster consumers(far beyond just the costs of maintaining the passageways). This would allow certain states in strategic locations to profit heavily off the fact that goods have to pass through them(and for no other reason). Which would both harm trade, and would tend to make each state hostile toward each other.
Last edited by Redshadowz; 07-11-2011 at 01:23 PM..
You divined question marks in my post? You would have had to since I didn't include any.
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I would assume this line means, "A major reason for the commerce clause, was so that states which have to transport goods through other states, aren't forced to pay unfair fees for this right".
I don't know what part of states did not transport goods that you are failing to grasp. Or, perhaps I missed the era when states engaged in commercial activity.
You divined question marks in my post? You would have had to since I didn't include any.
This is what you said....
Is it your argument that Madison was making a case for states, sovereign entities, or the people of the effected states.
I'm pretty sure that qualifies as a question.
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I don't know what part of states did not transport goods that you are failing to grasp. Or, perhaps I missed the era when states engaged in commercial activity.
Are you not intelligent enough to figure out what is implied by "states" in Madison's quote?
What he is saying is that, exporters from one state(people) and consumers from another state(people) should not be burdened by unfair fees or duties imposed by a state government which goods must be transported through.
Imagine that you are Boeing(in Washington state), and you wanted to sell airplanes to a company in California. It is saying that Oregon cannot charge Boeing any toll, fee, or duty to allow the transport of the airplane through Oregon, outside of any actual costs incurred by the state of Oregon for its passage(like maintaining roads, seaports, or airways).
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