From: cramer@optilink.COM (Clayton Cramer)
Newsgroups: talk.politics.misc,misc.legal
Subject: Re: Necessary and Proper
Date: 27 Jan 93 18:56:59 GMT
Organization: Optilink Corporation, Petaluma, CA

In article <1993Jan26.061051.8119@midway.uchicago.edu>, thf2@ellis.uchicago.edu (Ted Frank) writes:
> In article <14058@optilink.COM> cramer@optilink.COM (Clayton Cramer) writes:
> >In article <1993Jan23.104902.25898@midway.uchicago.edu>, thf2@ellis.uchicago.edu (Ted Frank) writes:
> ># Congress unquestionably had the power to regulate the interstate sale
> >                                                        ^^^^^^^^^^^^^^^
> ># of wheat.  Allowing individuals to escape the regulation would have
> >  ^^^^^^^^
> ># eviscerated the regulation.  Therefore, the Court chose not to reach
> ># the absurd result you would have them reach, which is that Congress
> ># can only regulate interstate commerce when it is ineffectual in doing
> ># so.
> >
> >You mean, the Court decided that wheat that was never sold, never
> >left the farm, and so, never was part of "interstate sale of wheat,"
> >was within the federal government's authority to regulate.  LOOK WHAT
> >YOU WROTE!  The Court would have had to say, "There's no interstate
> >commerce here -- you can't tell the guy what he can do."
> 
> The Court noted that the farmer in question was affecting the
> interstate sale of wheat by growing over his quota.
> 
> Does Filburn by himself make a difference?  No.  If a thousand similarly 
> situated did the same thing?  Yes, the cumulative effect would have a 
> substantial impact on interstate commerce.  

There are two separate issues here:

1. Does it exceed the authority granted to the Federal Government by
the Constitution?

2. Why are we passing laws that have so little support that we have
to worry about the cumulative effect of so many people breaking the
law?

You seem to admit that there is something questionable about the
action as applied to Mr. Filburn, but argue that without it, the
whole system of price controls would collapse.  A law that has to
deal with such wholesale violation, should be a signal that maybe
something was fundamentally wrong with the law.  If the law requires
such a broad and expansive reading of "interstate state" commerce
as well, doesn't this suggest that perhaps the Feds had gone off
the deep end?

> >Mr. Frank, you are an intelligent person.  Why have you so utterly
> >accepted the Big Government Can Do No Wrong viewpoint?  This is a
> >clear case of stretching the federal government's authority FAR
> >beyond any rational definition of "interstate commerce" and you
> >STILL defend it.
> 
> I dispute the notion that the definition is irrational.  It may not
> be correct, but it is wholly internally consistent.  Which is one

Many things are internally consistent, and still stupid.

> reason that it has been the only Commerce Clause doctrine to survive
> as long as it has, for the other definitions were unworkable.  This

Unworkable for WHOM?  Unworkable for a government that was unwilling
to face reality about the unworkability of its price regulations.

> is a situation where we settle for political checks on the government's
> power because (1) they're possible, while (2) judicial checks really
> aren't.  If voters are concerned with Congressional excess in its

What?  You mean the courts don't have the power to restrain governmental
abuse?  This will doubtless be news to the various people hollering
at each other about Roe v. Wade.  As for political checks -- I've
yet to see evidence that such exist.  Our system is so hopelessly
corrupted by special interest power, that it is beyond reform.

> Commerce Clause findings, they can elect a Congress that will interpret
> the Commerce Clause narrowly.  Note the difference between this and
> a First Amendment case -- there's no effective political check when 
> speech is regulated, and judicial review is the only possible resort. 

Why not?  What distinguishes these two?  "If voters are concerned
with Congressional excess it is First Amendment findings, they
can elect a Congress that will interpret the Commerce Clause narrowly."
What if the majority is oppressing the minority, with either price
controls or censorship laws?  What if the majority benefits from that
abuse?

> Given that the Commerce Clause is a buffer between state government
> and federal government, and that the majority of Congress is made up

A buffer?  No, a limit on federal power.

> of people who have served in state government, I think the states'
> interests are adequately represented, and no Constitutional harm has 
> come from Congress's expansive interpretation of the Commerce Clause.

So why doesn't the same "politicians have served in state government"
idea work with the First Amendment?

> It'd be nice to throw out some of the Congressional interstate commerce
> regulation that I don't like on Commerce Clause grounds -- but that would
> be judicial legislation and activism, a big no-no, right?  

No, throw out all regulation of commerce that is entirely contained
within a state.  This is the proper role of state governments, under
the Constitution.  I'm not thrilled with state regulation of intrastate
commerce either, but at least they have that authority.

> ted frank                     | thf2@ellis.uchicago.edu 
-- 
Clayton E. Cramer {uunet,pyramid}!optilink!cramer  My opinions, all mine!
"When freedom destroys order, order will destroy freedom." -- Eric Hoffer
Not a goal, just a statement of reality.
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