From: thf2@ellis.uchicago.edu (Ted Frank)
Subject: Re: Necessary and Proper
Reply-To: thf2@midway.uchicago.edu
Organization: University of Chicago
Date: Tue, 26 Jan 1993 06:10:51 GMT

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:
># Yes.  It was a stupid law, to be sure, but stupidity does not equal
># constitutionality.
>
>Very true.

Pardon my typo -- "unconstitutionality" that should read.

># 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.  

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

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

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?  

># ## And indeed, none of this has happened in the field of taxation.
># ## The interpretation of "necessary and proper" in Court history has
># ## followed Hamilton's guidelines.
># #
># #Gee, do you suppose Hamilton's statement was intended to cover
># #any possibility besides taxation?
># 
># I'm open to other examples.
>
>You mean, his example was only intended to refer to taxation,
>and nothing else?  Are you serious?

I'm open to other examples where the Court has not arguably followed
Hamilton's guidelines outside of the field of taxation.
-- 
ted frank                     | thf2@ellis.uchicago.edu 
standard disclaimers          | void where prohibited
the university of chicago law school, chicago, illinois 60637
Newsgroups: talk.politics.misc