Commerce Clause - Lopez/Morrison/Raich Forum

[vanwinkle]

IMO let this guy finish his 1L Fall semester before [strike]explaining to him why he got[/strike] relentlessly mocking him for getting C's in all his courses.

FTFM.

[bernie shmegma]

I think what makes Con Law so interesting is that literal readings of the Constitution have very little to do with constitutional literacy. There was so much intellectual wealth at the time of ratification that seemingly conflicting strands of both classical liberalism and civic republicanism are found in the document. Negative rights are by their very nature not expressly written in; should we not construe them? 19th century due process led to unprecedented liberty and freedom for American citizens and immigrants; and yet the FDR fear-based rational basis deference of the Hughes court left us with very little individual rights. But a literal reading of the Constitution wouldn't get us very far in resolving these tensions: the C doesn't define the scope of our rights, but only gives us broad strokes. It is up to us as lawyers to turn it into an evolving conversation that reflects the society in which we want to live.

We couldn't have more opposite views. You're justifying a deviation from constitutional structure. Your views are common. I would argue the most common, especially in law school. There is a reason for that and it doesn't have to do with classical liberalism or civic republicanism I can assure you that. Whereas that is precisely what my views have to do with. I have wayyyy too much to say in response right now though.This is basis for pretty much every policy, every philosophical, economic, existential, historical concern that I have. For another thread at another time. I'll give you some sources too if you're interested in Con theory.

The problem is that what solidsnake is talking about is not his personal views on what Con Law should be but the reality of what Con Law is. He's not justifying anything, he's just talking about discussing the way things are. It doesn't matter what you believe the constitutional structure should be, the only thing that really matters in a discussion when someone has asked for help analyzing a Con Law issue is what the law actually is. Your responses might make good theory, but they have nothing to do with practical or realistic discussion of what constitutional law actually currently is in the United States.

How do you think it got that way? And, I am not denying legal realism nor ignoring it. However, I have the text and historical context that go along with it to make it my common denominator, whereas this "reality" you speak of is ephemeral and dying quickly as a consequence of its own development. We're not Great Britain and we do have a written constitution. So, it does matter what I think it should be and that's called the text (which is brilliant btw). Otherwise we must rely on the existence of what is accepted as "reality," which if whatever is "reality" is accepted than why have a Constitution? The real question is, will this reality die before it kills itself and anything at all that resembles our system along with it or will the Court do it first? I feel it all starts with this generation and the academic paradigm. If this is the case, shall I be expected to just adopt this "reality" now as my own? What good will that do? Do you think reality determines us or we determine reality? The Constitution requires our acceptance, but it does not become whatever we want it to be. The opposite of this is essentially the reality you are asking me to accept.

[LateNight]

#00BF00 #00BF40 #00BF80 #00BFBF

LOL... I am glad that this view has never held a majority on the court. I love my extra-constitutional rights such as privacy.

[bernie shmegma]

#00BF00 #00BF40 #00BF80 #00BFBF

LOL... I am glad that this view has never held a majority on the court. I love my extra-constitutional rights such as privacy.

The text is not exhaustive. 9th Amendment.

[SlipperyPete]

.

[vanwinkle]

How do you think it got that way?

This is what the study of Constitutional Law is. It looks at how things got the way they are now through a historical analysis.

However, I have the text and historical context that go along with it to make it my common denominator, whereas this "reality" you speak of is ephemeral and dying quickly as a consequence of its own development. We're not Great Britain and we do have a written constitution. So, it does matter what I think it should be and that's called the text (which is brilliant btw). Otherwise we must rely on the existence of what is accepted as "reality," which if whatever is "reality" is accepted than why have a Constitution?

You really don't have a solid grasp on "reality".

The "reality" is that the Constitution is a very flexible and open framework, and it's been the role of the three branches of government to fill in the gaps over the years. That is what the study of constitutional law is; it's the study of how those gaps have been filled in. Everything that is done in constitutional law is (arguably) done within that framework. The court often disagrees over which interpretation is correct, but the whole point is there's more than one way to interpret the document.

Once you actually study Con Law you will start to realize this. Or you will fail. One of the two, I have no idea which at this point.

The real question is, will this reality die before it kills itself and anything at all that resembles our system along with it or will the Court do it first?

You just have no clue what you're talking about. The system has worked this way for over 200 years now. It has survived some truly horrible decisions; one of them helped trigger a massive and bloody civil war, another disenfranchised blacks and enabled mass discrimination for about 60 years, and many voided a huge number of economic regulations under a doctrine that is no longer considered sound or valid. But the thing is, none of this is new. The court, the government, and the Constitution have functioned this way for a long time.

I feel it all starts with this generation and the academic paradigm. If this is the case, shall I be expected to just adopt this "reality" now as my own? What good will that do? Do you think reality determines us or we determine reality? The Constitution requires our acceptance, but it does not become whatever we want it to be. This is essentially the reality you are asking me to accept.

I think that "reality" is something you have to accept, even if you desire change. Your believing things should be different does not make it so. You can advocate for change, but you must do it within the current system. What you are seeking to accomplish is actually something you can accomplish that way; there are people who agree with your general viewpoint. However, they are also people who respect the authority of the Court to conduct judicial review, and to act as supreme constitutional interpreter, and in stare decisis.

We have a written Constitution. However, it is a very short document and we are a very complex nation. A system has developed to fill in those gaps, and that system, whether you like it or not, is what is currently used.

[seespotrun]

I think what makes Con Law so interesting is that literal readings of the Constitution have very little to do with constitutional literacy. There was so much intellectual wealth at the time of ratification that seemingly conflicting strands of both classical liberalism and civic republicanism are found in the document. Negative rights are by their very nature not expressly written in; should we not construe them? 19th century due process led to unprecedented liberty and freedom for American citizens and immigrants; and yet the FDR fear-based rational basis deference of the Hughes court left us with very little individual rights. But a literal reading of the Constitution wouldn't get us very far in resolving these tensions: the C doesn't define the scope of our rights, but only gives us broad strokes. It is up to us as lawyers to turn it into an evolving conversation that reflects the society in which we want to live.

We couldn't have more opposite views. You're justifying a deviation from constitutional structure. Your views are common. I would argue the most common, especially in law school. There is a reason for that and it doesn't have to do with classical liberalism or civic republicanism I can assure you that. Whereas that is precisely what my views have to do with. I have wayyyy too much to say in response right now though.This is basis for pretty much every policy, every philosophical, economic, existential, historical concern that I have. For another thread at another time. I'll give you some sources too if you're interested in Con theory.

The problem is that what solidsnake is talking about is not his personal views on what Con Law should be but the reality of what Con Law is. He's not justifying anything, he's just talking about discussing the way things are. It doesn't matter what you believe the constitutional structure should be, the only thing that really matters in a discussion when someone has asked for help analyzing a Con Law issue is what the law actually is. Your responses might make good theory, but they have nothing to do with practical or realistic discussion of what constitutional law actually currently is in the United States.

How do you think it got that way? And, I am not denying legal realism nor ignoring it. However, I have the text and historical context that go along with it to make it my common denominator, whereas this "reality" you speak of is ephemeral and dying quickly as a consequence of its own development. We're not Great Britain and we do have a written constitution. So, it does matter what I think it should be and that's called the text (which is brilliant btw). Otherwise we must rely on the existence of what is accepted as "reality," which if whatever is "reality" is accepted than why have a Constitution? The real question is, will this reality die before it kills itself and anything at all that resembles our system along with it or will the Court do it first? I feel it all starts with this generation and the academic paradigm. If this is the case, shall I be expected to just adopt this "reality" now as my own? What good will that do? Do you think reality determines us or we determine reality? The Constitution requires our acceptance, but it does not become whatever we want it to be. This is essentially the reality you are asking me to accept.

No, the reality we are asking you to accept is that if you wrote that on an exam tomorrow, you would get a big fat F. That big fat F translates, most likely, into no job prospects with (presumably) a big fat debt to pay off.

[Learning Hand]

Wickard - not entering into a market is an economic activity.

The court has not ruled out the fact that there may be non-economic activity that is part of interstate commerce. Lopez and Morrison explicitly state this.

If I remember right, they said that they can regulate activity that is non-economic if it is part of a larger scheme of economic regulation. (This is essentially a restatement of Wickard.) That's how they regulated private use of marijuana in Raich; it's not economic in nature to grow something for private use, but it's part of a larger scheme of shutting down the movement of marijuana in interstate commerce.

The Court seems to be drawing a distinction between "commercial" and "economic" activities.

Our case law firmly establishes Congress’ power to regulate purely local activities that are part of an economic 'class of activities' that have a substantial effect on interstate commerce. As we stated in Wickard, 'even if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.'

'Wickard thus establishes that Congress can regulate purely intrastate activity that is not itself 'commercial,' in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.'

. . . .

Unlike those at issue in Lopez and Morrison, the activities regulated by the CSA are quintessentially economic. 'Economics' refers to 'the production, distribution, and consumption of commodities.' Webster’s Third New International Dictionary 720 (1966). The CSA is a statute that regulates the production, distribution, and consumption of commodities for which there is an established, and lucrative, interstate market. Prohibiting the intrastate possession or manufacture of an article of commerce is a rational (and commonly utilized) means of regulating commerce in that product.

As I read it, the Court can regulate economic activities, that is, economic to the extent that they have have economic effect, even if they are not transactional (commercial) in nature. Because of Stevens' broad definition of "economic," he was able to conclude that personal production and consumption of commodities such as marijuana fell within the scope of the CSA. So, it's not that Wickard or Raich stand for the proposition that Congress may regulate non-economic activity if it falls within an regulatory scheme. Rather, Congress may regulate non-commercial economic activity that Congress has a rational basis to believe that it substantially affects interstate commerce. Of course, Scalia proposes that "Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce." And O'Connor rightfully and judicially bench slapped him for this. If I'm reading this right, though, the Court has never held that Congress can regulate noneconomic activity having a substantial effect on interstate commerce.

[bernie shmegma]

How do you think it got that way?

This is what the study of Constitutional Law is. It looks at how things got the way they are now through a historical analysis.

However, I have the text and historical context that go along with it to make it my common denominator, whereas this "reality" you speak of is ephemeral and dying quickly as a consequence of its own development. We're not Great Britain and we do have a written constitution. So, it does matter what I think it should be and that's called the text (which is brilliant btw). Otherwise we must rely on the existence of what is accepted as "reality," which if whatever is "reality" is accepted than why have a Constitution?

You really don't have a solid grasp on "reality".

The "reality" is that the Constitution is a very flexible and open framework, and it's been the role of the three branches of government to fill in the gaps over the years. That is what the study of constitutional law is; it's the study of how those gaps have been filled in. Everything that is done in constitutional law is (arguably) done within that framework. The court often disagrees over which interpretation is correct, but the whole point is there's more than one way to interpret the document.

Once you actually study Con Law you will start to realize this. Or you will fail. One of the two, I have no idea which at this point.

The real question is, will this reality die before it kills itself and anything at all that resembles our system along with it or will the Court do it first?

You just have no clue what you're talking about. The system has worked this way for over 200 years now. It has survived some truly horrible decisions; one of them helped trigger a massive and bloody civil war, another disenfranchised blacks and enabled mass discrimination for about 60 years, and many voided a huge number of economic regulations under a doctrine that is no longer considered sound or valid. But the thing is, none of this is new. The court, the government, and the Constitution have functioned this way for a long time.

I feel it all starts with this generation and the academic paradigm. If this is the case, shall I be expected to just adopt this "reality" now as my own? What good will that do? Do you think reality determines us or we determine reality? The Constitution requires our acceptance, but it does not become whatever we want it to be. This is essentially the reality you are asking me to accept.

I think that "reality" is something you have to accept, even if you desire change. Your believing things should be different does not make it so. You can advocate for change, but you must do it within the current system. What you are seeking to accomplish is actually something you can accomplish that way; there are people who agree with your general viewpoint. However, they are also people who respect the authority of the Court to conduct judicial review, and to act as supreme constitutional interpreter, and in stare decisis.

We have a written Constitution. However, it is a very short document and we are a very complex nation. A system has developed to fill in those gaps, and that system, whether you like it or not, is what is currently used.

I'm aware of our history thank you. I'm also aware if those experts who share my viewpoint as they are whom I learn from. Your 200 years rant is something we all take for granted and should be very very careful about. I don't quite think you see the difference between since 1791 and 1937. BIG difference. Perhaps it IS this way, but it only IS this way because we accept it as such. Yes, no matter what opinions will vary, but the scope and shift has been profoundly disconcerting.

[Llewellyn]

I'm aware of our history thank you. I'm also aware if those experts who share my viewpoint as they are whom I learn from. Your 200 years rant is something we all take for granted and should be very very careful about. I don't quite think you see the difference between since 1791 and 1937. BIG difference. Perhaps it IS this way, but it only IS this way because we accept it as such. Yes, no matter what opinions will vary, but the scope and shift has been profoundly disconcerting.

Or is it? CJ Marshall made a number of decisions in which he opined, obiter dictum, about a bunch of shit, and in that dictum, what he wrote about what he thought the reaches of the Constitution w/r/t to the commerce clause could extent to are more in line with the current interpretation than what was being touted during the pre-New Deal.

[bernie shmegma]

I'm aware of our history thank you. I'm also aware if those experts who share my viewpoint as they are whom I learn from. Your 200 years rant is something we all take for granted and should be very very careful about. I don't quite think you see the difference between since 1791 and 1937. BIG difference. Perhaps it IS this way, but it only IS this way because we accept it as such. Yes, no matter what opinions will vary, but the scope and shift has been profoundly disconcerting.

Or is it? CJ Marshall made a number of decisions in which he opined, obiter dictum, about a bunch of shit, and in that dictum, what he wrote about what he thought the reaches of the Constitution w/r/t to the commerce clause could extent to are more in line with the current interpretation than what was being touted during the pre-New Deal.

Fucking Federalist screwed up everything. Alright, go back to the early 1800's. I thought if I brought that up I'd surely get an earful. At least you're understanding me now.

[vanwinkle]

I'm aware of our history thank you. I'm also aware if those experts who share my viewpoint as they are whom I learn from. Your 200 years rant is something we all take for granted and should be very very careful about. I don't quite think you see the difference between since 1791 and 1937. BIG difference. Perhaps it IS this way, but it only IS this way because we accept it as such. Yes, no matter what opinions will vary, but the scope and shift has been profoundly disconcerting.

I see the difference between 1791 and 1937. However, that is one of many differences which are visible. How about 1905 and 1937? 1937 and 1995? The doctrines have been shifting constantly, ebbing and flowing back and forth, as different forces have caused things to start moving one way or the other. Post-1995 things are moving back against Congress regarding the Commerce Clause, but post-1968 things are moving forward toward stronger enforcement of the 14th Amendment against the states, and post-2008 the court is moving toward a new broader reading of the Second Amendment.

You're a fool and an idiot if you think what's going on with Constitutional interpretation in the last 60 years is something new or radically different from the time before it. It's not like anyone has ever just accepted things the way they are, either; there are always forces reacting, pushing on both sides. Post-1995 Commerce Clause jurisprudence is a pushback of the very nature you're desiring. It's also a refinement, not a massive overhaul that would severely disrupt the current functions of the government.

If you truly understand constitutional law, then you should understand that for the most part these movements are slow, and intentionally so. The 1934-1937 turnaround was pretty dramatic, but the court's actions up until then were pretty radical also, what would often be called judicial activism today. It's not like things were all great and peachy up until 1937 and then they torched the Constitution in a pile of burning Bibles and American flags.

[Action Jackson]

It's not like things were all great and peachy up until 1937 and then they torched the Constitution in a pile of burning Bibles and American flags.

No, that's exactly what they did. I saw a photo of that on Fox News. SRSLY!

[bernie shmegma]

I'm aware of our history thank you. I'm also aware if those experts who share my viewpoint as they are whom I learn from. Your 200 years rant is something we all take for granted and should be very very careful about. I don't quite think you see the difference between since 1791 and 1937. BIG difference. Perhaps it IS this way, but it only IS this way because we accept it as such. Yes, no matter what opinions will vary, but the scope and shift has been profoundly disconcerting.

I see the difference between 1791 and 1937. However, that is one of many differences which are visible. How about 1905 and 1937? 1937 and 1995? The doctrines have been shifting constantly, ebbing and flowing back and forth, as different forces have caused things to start moving one way or the other. Post-1995 things are moving back against Congress regarding the Commerce Clause, but post-1968 things are moving forward toward stronger enforcement of the 14th Amendment against the states, and post-2008 the court is moving toward a new broader reading of the Second Amendment.

You're a fool and an idiot if you think what's going on with Constitutional interpretation in the last 60 years is something new or radically different from the time before it. It's not like anyone has ever just accepted things the way they are, either; there are always forces reacting, pushing on both sides. Post-1995 Commerce Clause jurisprudence is a pushback of the very nature you're desiring. It's also a refinement, not a massive overhaul that would severely disrupt the current functions of the government.

If you truly understand constitutional law, then you should understand that for the most part these movements are slow, and intentionally so. The 1934-1937 turnaround was pretty dramatic, but the court's actions up until then were pretty radical also, what would often be called judicial activism today. It's not like things were all great and peachy up until 1937 and then they burned the Constitution in a pile of Bibles and American flags.

Its an aggregate view of the focus of the Courts. Structure vs. rights. Since 1937, SOP and federalism have been steadily shifting toward federal centralization and largely ignored as the major points at issue for the court. This wasn't because they didn't need to because our system is so great, but because we democratized, which was not a good thing. I don't think this is about a micro analysis of the Court, but a macro one. The ebb and flow is relative within the confines of a greater shift. The point is that when we misidentify the impact of Constitutional evolution, we misidentify the underlying causes during crises and can't deliberate on long-term solutions. I really fear this day is coming in the first halves of our life. I hope I am wrong, but I attribute whatever this may be to a culmination of things (entitlements, centralization, lack of state autonomy, federal programs in local matters, prospect of bailing out states, presidential power, administrative state) that would not have existed prior to the New Deal Era and the progressive Court. These are all things that the Court is responsible for and necessarily so. Their decisions incrementally build and when principles are not consistent to a certain degree and its instead breached, we have no theoretically enduring safeguard on all other democratic-republican safeguards.

[Action Jackson]

I'm aware of our history thank you. I'm also aware if those experts who share my viewpoint as they are whom I learn from. Your 200 years rant is something we all take for granted and should be very very careful about. I don't quite think you see the difference between since 1791 and 1937. BIG difference. Perhaps it IS this way, but it only IS this way because we accept it as such. Yes, no matter what opinions will vary, but the scope and shift has been profoundly disconcerting.

I see the difference between 1791 and 1937. However, that is one of many differences which are visible. How about 1905 and 1937? 1937 and 1995? The doctrines have been shifting constantly, ebbing and flowing back and forth, as different forces have caused things to start moving one way or the other. Post-1995 things are moving back against Congress regarding the Commerce Clause, but post-1968 things are moving forward toward stronger enforcement of the 14th Amendment against the states, and post-2008 the court is moving toward a new broader reading of the Second Amendment.

You're a fool and an idiot if you think what's going on with Constitutional interpretation in the last 60 years is something new or radically different from the time before it. It's not like anyone has ever just accepted things the way they are, either; there are always forces reacting, pushing on both sides. Post-1995 Commerce Clause jurisprudence is a pushback of the very nature you're desiring. It's also a refinement, not a massive overhaul that would severely disrupt the current functions of the government.

If you truly understand constitutional law, then you should understand that for the most part these movements are slow, and intentionally so. The 1934-1937 turnaround was pretty dramatic, but the court's actions up until then were pretty radical also, what would often be called judicial activism today. It's not like things were all great and peachy up until 1937 and then they burned the Constitution in a pile of Bibles and American flags.

Its an aggregate view of the focus of the Courts. Structure vs. rights. Since 1937, SOP and federalism have been steadily shifting toward federal centralization and largely ignored as the major points at issue for the court. This wasn't because they didn't need to because our system is so great, but because we democratized, which was not a good thing. I don't think this is about a micro analysis of the Court, but a macro one. The ebb and flow is relative within the confines of a greater shift. The point is that when we misidentify the impact of Constitutional evolution, we misidentify the underlying causes during crises and can't deliberate on long-term solutions. I really fear this day is coming in the first halves of our life. I hope I am wrong, but I attribute whatever this may be to a culmination of things (entitlements, centralization, lack of state autonomy, federal programs in local matters, prospect of bailing out states, presidential power, administrative state) that would not have existed prior to the New Deal Era and the progressive Court. These are all things that the Court is responsible for and necessarily so. Their decisions incrementally build and when principles are not consistent to a certain degree and its instead breached, we have no theoretically enduring safeguard on all other democratic-republican safeguards.

You are the reason law school sucks.

[vanwinkle]

You are the reason law school sucks.

QFT.

[Learning Hand]

what the hell is everyone going on about? don't answer that.

[BunkMoreland]

Just like his buddy Justice Thomas, bernie will consistently file a concurrence or dissent based on which side of the majority he's on in which he snidely remarks that Commerce Clause jurisprudence should go back to the days of E.C. Knight and Carter Coal

[LateNight]

Just like his buddy Justice Thomas, bernie will consistently file a concurrence or dissent based on which side of the majority he's on in which he snidely remarks that Commerce Clause jurisprudence should go back to the days of E.C. Knight and Carter Coal

I don't think that is a fair assessment of Bernie's belief. I think that Bernie stated he believes the 9th amendment includes a privacy right. Justice Thomas would never say that!

Justice Thomas is probably the most bat-shit-insane Justice ever.

For Christ's sake, Thomas doesn't think that the 14th Amendment applies to Establishment and Exercise Clauses! However, he probably will rule that the 14th obviously incorporates the 2nd.

Just to reiterate Bernie: Your hero, Thomas, thinks that it is perfectly fine for the state of California to tax all of its citizens and set up a church. He sees no constitutional problem with this, because the 1st amendment (as it relates to religion) only applies to the Federal Government.

[24secure]

Seriously, the Commerce Clause is not this controversial...

[vanwinkle]

Seriously, the Commerce Clause is not this controversial...

But... but... Their decisions incrementally build and when principles are not consistent to a certain degree and its instead breached!! Can't you SEE that?!?!?

[Matthies]

Seriously, the Commerce Clause is not this controversial...

But... but... Their decisions incrementally build and when principles are not consistent to a certain degree and its instead breached!! Can't you SEE that?!?!?

its all about mudflaps

[KibblesAndVick]

ITT: we learn why adcoms consider political science a bad prelaw major

[Antipodean]

I'm not sure what you've been reading to prepare for law school, Bernie, but I suggest that you drop it and start reading this. The way that you currently express your ideas is not doing you any favours.

[mikeytwoshoes]

I'm not sure what you've been reading to prepare for law school, Bernie, but I suggest that you drop it and start reading this. The way that you currently express your ideas is not doing you any favours.

Are you from Britain?

WTF are you talking about? Law profs love it when you pretend you know more than them.