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How is there grounding for legislation
I'm actually curious what people think, not trying to state my theory.

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How is there grounding for legislation

davidasearles
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Posted 11/19/09 - 12:09 PM:	#41
xzJoel: "I have specifically pointed to the expansion of the commerce clause to wholly intrastate (or even intra-yard) behavior, and yet you persist in the analysis of the dormant commerce clause. I have at no time indicated that I have a problem with the dormant commerce clause." das: Oh that's fine then. Can you give me examples of the main cases where this happened that the courts made a laughing stock of the commerce clause by expanding to wholly intra-state commerce? Was this the problem with the case that you had cited - Daniel v. Paul, 395 U. S. 298 (1969). http://supreme.justia.com/us/395/298/case.html ?? Thank you, Dave Searles

xzJoel
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Posted 11/19/09 - 12:26 PM:	#42
http://supreme.justia.com/us/317/111/case.html Wickard v. Filburn, 317 U.S. 111 (1942) . . . It is well established by decisions of this Court that the power to regulate commerce includes the power to regulate the prices at which commodities in that commerce are dealt in and practices affecting such prices. One of the primary purposes of the Act in question was to increase the market price of wheat, and, to that end, to limit the volume thereof that could affect the market. It can hardly be denied that a factor of such volume and variability as home-consumed wheat would have a substantial influence on price and market conditions. This may arise because being in marketable condition such wheat overhangs the market, and, if induced by rising prices, tends to flow into the market and check price increases. But if we assume that it is never marketed, it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce. The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon. This record leaves us in no doubt that Congress may properly have considered that wheat consumed on the farm where grown, if wholly outside the scheme of regulation, would have a substantial effect in defeating and obstructing its purpose to stimulate trade therein at increased prices. . . .
"For there is such a distance between how one lives and how one ought to live, that anyone who abandons what is done for what ought to be done achieves his downfall rather than his preservation." Niccolo Machiavelli, "The Prince", Chapter XV.

xzJoel
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Posted 11/19/09 - 12:34 PM:	#43
http://supreme.justia.com/us/395/298/case.html#308 Daniel v. Paul, 395 U.S. 298 (1969) . . . Lake Nixon Club, located 12 miles west of Little Rock, is a 232-acre amusement area with swimming, boating, sun bathing, picnicking, miniature golf, dancing facilities, and a snack bar. . . . . . . The Pauls advertise the Lake Nixon Club in a monthly magazine called "Little Rock Today," which is distributed to guests at Little Rock hotels, motels, and restaurants, to acquaint them with available tourist attractions in the area. Regular advertisements for Lake Nixon were also broadcast over two area radio stations. In addition, Lake Nixon has advertised in the "Little Rock Air Force Base," a monthly newspaper published at the Little Rock Air Force Base, in Jacksonville, Arkansas. This choice of advertising media leaves no doubt that the Pauls were seeking broad-based patronage from an audience which they knew to include interstate travelers. Thus, the Lake Nixon Club unquestionably offered to serve out-of-state visitors to the Little Rock area. And it would be unrealistic to assume that none of the 100,000 patrons actually served by the Club each season was an interstate traveler. [Footnote 5] Since the Lake Nixon Club offered to serve and served out-of-state persons, and since the Club's snack bar was established to serve all patrons of the entire facility, we must conclude that the snack bar offered to serve and served out-of-state persons. See Hamm v. Rock Hill, 379 U. S. 306, 379 U. S. 309 (1964); see also Wooten v. Moore, 400 F.2d 239 (C.A.4th Cir.1968). The record, although not as complete on this point as might be desired, also demonstrates that a "substantial portion of the food" served by the Lake Nixon Club snack bar has moved in interstate commerce. The snack bar serves a limited fare -- hot dogs and hamburgers on buns, soft drinks, and milk. The District Court took judicial notice of the fact that the "principal ingredients going into the bread were produced and processed in other States," and that "certain ingredients [of the soft drinks] were probably obtained . . . from out-of-State sources." 263 F.Supp. at 418. Thus, at the very least, three of the four food items sold at the snack bar contain ingredients originating outside of the State. There can be no serious doubt that a "substantial portion of the food" served at the snack bar has moved in interstate commerce. See Katzenbach v. McClung, 379 U. S. 294, 379 U. S. 296-297 (1964); Gregory v. Meyer, 376 F.2d 509, 511, n. 1 (C.A. 5th Cir.1967). . . . The remaining question is whether the operations of the Lake Nixon Club "affect commerce" within the meaning of 201(c)(3). We conclude that they do. Lake Nixon's customary "sources of entertainment . . . move in commerce." The Club leases 15 paddle boats on a royalty basis from an Oklahoma company. Another boat was purchased from the same company. The Club's juke box was manufactured outside Arkansas, and plays records manufactured outside the State. The legislative history indicates that mechanical sources of entertainment such as these were considered by Congress to be "sources of entertainment" within the meaning of § 201(c)(3). . . .
"For there is such a distance between how one lives and how one ought to live, that anyone who abandons what is done for what ought to be done achieves his downfall rather than his preservation." Niccolo Machiavelli, "The Prince", Chapter XV.

davidasearles
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Posted 11/19/09 - 12:35 PM:	#44
In the case that you had cited previously - Daniel v. Paul, 395 U. S. 298 (1969). http://supreme.justia.com/us/395/298/case.html is this case an example of where the supreme court supposedly made a laughing stock of the commerce clause by inappropriately expanding it to include wholly intrastate commerce?

xzJoel
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Posted 11/19/09 - 12:44 PM:	#45
davidasearles wrote: In the case that you had cited previously - Daniel v. Paul, 395 U. S. 298 (1969). http://supreme.justia.com/us/395/298/case.html is this case an example of where the supreme court supposedly made a laughing stock of the commerce clause by inappropriately expanding it to include wholly intrastate commerce? Yes, David, each of the five cases cited and identified as cases that make a laughing stock of the commerce clause are examples of cases that make a laughing stock of the commerce clause. Each of them are directed towards activities that take place within a state and have an "effect" on interstate commerce and are thereby found to be within the powers of Congress by virtue of the commerce clause. Mind you, the case did not say that a racist shit could not buy out of state products or advertise in manners likely to be viewed out of state, but that they couldn't disriminate on the bases of race because of wholly seperate activities that affect interstate commerce. In other words, commerce wasn't regulated, racism was. Where is Congress given the power to regulate racism of an individual in his own private contracts? Notice that the 13th, 14th, and 15 amendments are directed towards government action and the existence of slavery, not towards restrictions on the freedom of volitional association. Edited by xzJoel on 11/20/09 - 07:27 AM. Reason: Knew I misspelled as I wrote it
"For there is such a distance between how one lives and how one ought to live, that anyone who abandons what is done for what ought to be done achieves his downfall rather than his preservation." Niccolo Machiavelli, "The Prince", Chapter XV.

davidasearles
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Posted 11/19/09 - 01:45 PM:	#46
xzJoel: "e. Mind you, the case [Daniel v. Paul, 395 U.S. 298 (1969)] did not say that a racist shit could not buy out of state products or advertise in manners likely to be viewed out of state, but that they couldn't discriminate on the bases of race because of wholly seperate activities that effect interstate commerce. In other words, commerce wasn't regulated, racism was. Where is Congress given the power to regulate racism of an individual in his own private contracts? das: I didn't find in Daniel v. Paul any indication that the Supreme Court expanded the meaning of the commerce clause found in the constitution. The court in this case found that the facility in question met the definition IN THE CIVIL RIGHTS ACT that it affected interstate commerce. Read the case. The case was NOT on whether the particular regulation of commerce in the Civil Rights Act of 1964 was constitutional or not constitutional. So you'll have to find some other case where the Supreme Court supposedly misinterpreted the commerce clause. Do you have one? (note - I tried to respond to the im but can't figure out how the damned thing works. just as well. we're doing alright here. dave) Edited by davidasearles on 11/19/09 - 01:51 PM

xzJoel
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Posted 11/19/09 - 02:04 PM:	#47
davidasearles wrote: xzJoel: "e. Mind you, the case [Daniel v. Paul, 395 U.S. 298 (1969)] did not say that a racist shit could not buy out of state products or advertise in manners likely to be viewed out of state, but that they couldn't discriminate on the bases of race because of wholly seperate activities that effect interstate commerce. In other words, commerce wasn't regulated, racism was. Where is Congress given the power to regulate racism of an individual in his own private contracts? das: I didn't find in Daniel v. Paul any indication that the Supreme Court expanded the meaning of the commerce clause found in the constitution. The court in this case found that the facility in question met the definition IN THE CIVIL RIGHTS ACT that it affected interstate commerce. Read the case. The case was NOT on whether the particular regulation of commerce in the Civil Rights Act of 1964 was constitutional or not constitutional. So you'll have to find some other case where the Supreme Court supposedly misinterpreted the commerce clause. Do you have one? (note - I tried to respond to the im but can't figure out how the damned thing works. just as well. we're doing alright here. dave) The Court cites Katzenbach, which was mentioned earlier by both Hanover and I. It was in the Heart of Atlanta case that the Civil Rights Act was found constitutional under the Commerce Clause. I don't mean to be a jerk, but are you familiar with how case law develops? If you want me to explain it, I can, but I'd rather not go case by case backwards when I can more easily just say what happened. Daniel cites Katzenback which cites Heart of Atlanta and Wickard. "Article I, § 8, cl. 3, confers upon Congress the power "[t]o regulate Commerce . . . among the several States" and Clause 18 of the same Article grants it the power [p302] "[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers. . . ." This grant, as we have pointed out in Heart of Atlanta Motel, extends to those activities intrastate which so affect interstate commerce, or the exertion of the power of Congress over it, as to make regulation of them appropriate means to the attainment of a legitimate end, the effective execution of the granted power to regulate interstate commerce. . . ." http://www.law.cornell.edu/supct/h.../USSC_CR_0379_0294_ZO.html The holding from Heart of Atlanta: We, therefore, conclude that the action of the Congress in the adoption of [Title II of the Civil Rights Act of 1964] as applied here to a motel which concededly serves interstate travelers is within the power granted it by the Commerce Clause of the Constitution, as interpreted by this Court for 140 years. http://caselaw.lp.findlaw.com/scri...court=US&vol=379&invol=241 Edited by xzJoel on 11/19/09 - 02:16 PM
"For there is such a distance between how one lives and how one ought to live, that anyone who abandons what is done for what ought to be done achieves his downfall rather than his preservation." Niccolo Machiavelli, "The Prince", Chapter XV.

xzJoel
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Posted 11/19/09 - 02:08 PM:	#48
By the by, here is your Ogdin quote from Katzenbach: The activities that are beyond the reach of Congress are those which are completely within a particular State, which do not affect other States, and with which it is not necessary to interfere, for the purpose of executing some of the general powers of the government. Gibbons v. Ogden, 9 Wheat. 1, 195 (1824). This rule is as good today as it was when Chief Justice Marshall laid it down almost a century and a half ago. ____________- And as a total aside, you may wish to give this article a read. http://www.constitution.org/lrev/bork-troy.htm Even if you doubt my credentials, I'm sure you can find it in your heart to accept that Bork is qualified to write on the topic even if you don't like what he has to say. He writes, (referring to the Commerce Clause) "Recall for a moment, after this condensed journey through the case law, the actual language of the Clause and its purpose. The Clause grants Congress the power to make interstate trade regular, to smooth out the burdensome discrepancies of interstate buying and selling. The Court's interpretation has strayed from the original understanding of the Clause. The extent of this wandering may be questioned, but the essential fact is not debatable. The question then is how to recover the original understanding and how to respect it today to the extent feasible, given the state of our economy and the law." Edited by xzJoel on 11/19/09 - 03:48 PM
"For there is such a distance between how one lives and how one ought to live, that anyone who abandons what is done for what ought to be done achieves his downfall rather than his preservation." Niccolo Machiavelli, "The Prince", Chapter XV.

davidasearles
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Posted 11/19/09 - 06:55 PM:	#49
xzJoel quotes Katzenbach v. McClung which in turn quoted Gibbons v. Ogdin: (Gibbons v. Ogden) The activities that are beyond the reach of Congress are those which are completely within a particular State, which do not affect other States, and with which it is not necessary to interfere, for the purpose of executing some of the general powers of the government. (Uopn which which Katzenbach v. McClung commented) This rule is as good today as it was when Chief Justice Marshall laid it down almost a century and a half ago." das writes: excellent. It was precisely for this observation by Marshall that I fed you the Steamboat case in the first place. And not long into the decision after Justice Clarke in Katzenbach v. McClung cited Marshall he wrote of the Supreme Court's limited role in applying the rational basis test by which to judge the action of the co-equal branch in adopting the legislation: "Congress has determined for itself that refusals of service to Negroes have imposed burdens both upon the interstate flow of food and upon the movement of products generally. Of course, the mere fact that Congress has said when particular activity shall be deemed to affect commerce does not preclude further examination by this Court. But where we find that the legislators, in light of the facts and testimony before them, have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end. The only remaining question -- one answered in the affirmative by the court below -- is whether the particular restaurant either serves or offers to serve interstate travelers or serves food a substantial portion of which has moved in interstate commerce." das continues: The very heart of jurisprudence is judicial restraint. If the constitution gives congress the authority to regulate interstate commerce, as long as the action taken by congress passes the rational basis test the court must refrain from second guessing the political branch. For the court not to have refrained from second guessing Congress, ironically, would be considered: (I'll spell it out for you:-) *J-U-D-I-C-I-A-LA-C-T-I-V-I-S-M**

xzJoel
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Posted 11/19/09 - 07:41 PM:	#50
davidasearles wrote: das writes: excellent. It was precisely for this observation by Marshall that I fed you the Steamboat case in the first place. And not long into the decision after Justice Clarke in Katzenbach v. McClung cited Marshall he wrote of the Supreme Court's limited role in applying the rational basis test by which to judge the action of the co-equal branch in adopting the legislation . . The very heart of jurisprudence is judicial restraint. If the constitution gives congress the authority to regulate interstate commerce, as long as the action taken by congress passes the rational basis test the court must refrain from second guessing the political branch. For the court not to have refrained from second guessing Congress, ironically, would be considered: (I'll spell it out for you:-) *J-U-D-I-C-I-A-LA-C-T-I-V-I-S-M** This, indeed, is one definition of Judicial Activism, but I've said earlier that there are multiple definitions. You talk about Judicial Restraint, but fail to remember these words: "Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? if it is closed upon him and cannot be inspected by him. If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime. It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank. Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument." Marbury v. Madison, 5 U.S. 137 (1803). When the Supreme Court fails to do its duty to uphold the limited powers delegated to the legislature, it violates its solemn oath to the people. That some would call thwarting the legislature "activist" is of no moment, even if the description is appropriate. Whether the Court in the commerce clause cases were activist or exercising judicial restraint is secondary to the core issue - they failed to limit the legislature to its Constitutional bounds. I criticize the Court on that ground, not on a label. When a sitting Supreme Court Justice writes that the Court has made a mockery of the delegated powers of Congress, that comment should be taken seriously and seen for what it is: an accurate description of what has become of the Commerce Clause. When no act is beyond the reach of congress under the guise of the commerce clause, we've ceased to have a congress with limited powers, but a congress with unlimited powers save the few instances where the court is brave enough to assert "enough". You seem unduly attached to labels and not firmly enough attached to the notion of a constitutional republic that exists within the confines set by the express written document which the governed have expressed their consent. The question of this thread was the legitimacy of the legislation in the absence of god. Hanover's comment that it derives from the constitution was admirable and idealistic, but factually inaccurate given the current state of the law on many points. Our laws derive their legitimacy not from the Constitution, but from the process established over the course of the history of the US and presumptively ratified by the continued participation of the people.
"For there is such a distance between how one lives and how one ought to live, that anyone who abandons what is done for what ought to be done achieves his downfall rather than his preservation." Niccolo Machiavelli, "The Prince", Chapter XV.

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