Please note: because you're not logged in, you may be viewing older cached versions of pages which are served up to reduce server load.
How is there grounding for legislation
I'm actually curious what people think, not trying to state my theory.
Print How is there grounding for legislation | |
|
davidasearles
Graduate Usergroup: Members Joined: Oct 15, 2009 Total Topics: 3 Total Posts: 225 |
 #51
xzJoel: "(the Supreme Court) failed to limit the legislature to its Constitutional bounds" das: Congress regulated interstate commerce. You don't like the particular regulation, it appears. You don't concern yourself with the fact that the interstate travel of black persons was significantly restricted by racial segreation in public accomodations, but in 1964 Congress did. (Admittedly not without some masterful arm twisting by Lyndon Baines Johnson, for which the Democratic Party lost the south, and as a result of that, the Republican Party lost its centrist base.) Somehow the admixture of racial non-discrimination in public accomodations and interstate commerce offends some purist notion that you have taken of "commerce." You'll get over it. Marshall in the steamboat case observed that not one sentence in the constitution suggests that the constitution should be narrowly construed. xzJoel:" 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." das: This is what is called a tautology. (when the power of congress is unlimited, its power is not limited) And I think it would be more gramatically correct if you had stated that "we will have ceased" or "we shall have ceased", or "we cease":-) Edited by davidasearles on Nov 20, 2009 - 4:28 AM |
|
xzJoel
Ennui Elucidator Usergroup: Sponsors Joined: Aug 30, 2005 Location: New Jersey Total Topics: 46 Total Posts: 1626
|
#52
davidasearles wrote: xzJoel: "(the Supreme Court) failed to limit the legislature to its Constitutional bounds" das: Congress regulated interstate commerce. You don't like the particular regulation, it appears. You don't concern yourself with the fact that the interstate travel of black persons was significantly restricted by racial segreation in public accomodations, but in 1964 Congress did. (Admittedly not without some masterful arm twisting by Lyndon Baines Johnson, for which the Democratic Party lost the south, and as a result of that, the Republican Party lost its centrist base.) Somehow the admixture of racial non-discrimination in public accomodations and interstate commerce offends some purist notion that you have taken of "commerce." You'll get over it. Marshall in the steamboat case observed that not one sentence in the constitution suggests that the constitution should be narrowly construed. xzJoel:" 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." das: This is what is called a tautology. (when the power of congress is unlimited, its power is not limited) And I think it would be more gramatically correct if you had stated that "we will have ceased" or "we shall have ceased", or "we cease":-) For some reason you focus on the Civil Rights cases when I am I not. The Civil Rights cases were but a natural progression from the over reaching "substantial effect" test that had been developed by prior Courts. I have consistently taken most issue with the case on personal wheat consumption, but for whatever reason, you refuse to discuss it. There is no doubt that a broad reading of the commerce clause would permit the Civil Rights Act, but the issue is not the Civil Rights Act, it is whether such an expansive reading of the commerce clause is Constitutionally justifiable. You keep putting the cart before the horse and arguing that the CRA was ok because Congress acted within the bounds established by the Supreme Court. If the Supreme Court failed to establish the proper bounds, then what difference does it make that the Congress was within them? “If a person truly believes that God is good and that everything God does is good, that person can’t be sad. Sadness is actually a sign of atheism.” The Baal Shem Tov I must be the biggest atheist of them all. |
|
Hanover
The Highest Rank Possible  Usergroup: Sponsors Joined: Nov 30, 2008 Location: Atlanta Total Topics: 16 Total Posts: 1629 |
#53
davidasearles wrote: I think that is exactly the point of xzjoel's statement, namely that if every act by definition satisfies the commerce clause, the commerce clause will have ceased to have any relevance. You haven't really responded to this particular criticism of the commerce clause, but you have instead diverted away from it and have gotten lost in the particulars of the Civil Rights Act. A direct response to xzjoel's comments would be to cite cases where federal legislation was deemed unconstitutional for failing to satisfy the commerce clause as that would contradict any claim that the commerce clause was meaningless. Of course, I would expect the counter to any cases you may cite to be that the commerce clause offers no predictable or consistent restraint on Congressional power, but that there only a few anamolous examples of judicial control over Congressional power. xzJoel:" 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." das: This is what is called a tautology. (when the power of congress is unlimited, its power is not limited) And I think it would be more gramatically correct if you had stated that "we will have ceased" or "we shall have ceased", or "we cease":-) The reason I anticipate the result I have outlined is because it's the way things really are. I think a strong argument can be made that the courts have tremendous respect for our democratic procedures and they are very reluctant to strike down any legislation, but they reserve those judgments to only the most obvious cases. I think, though, that the courts turned a blind eye to Congressional over-reaching during the civil rights era because they were looking to bring about a final end to the North/South divide that had continued to plague the US. "Certain things they should stay the way they are. You ought to be able to stick them in one of those big glass cases and just leave them alone. I know that's impossible, but it's too bad anyway." Holden Caulfield |
|
davidasearles
Graduate Usergroup: Members Joined: Oct 15, 2009 Total Topics: 3 Total Posts: 225 |
#54
xyJoel to das: "For some reason you focus on the Civil Rights cases when I am I not. " das: Daniel v. Paul, 395 U.S. 298 (1969) was picked by you: Posted 11/19/09 - 08:34 PM You also chose to discuss Katzenbach v. McClung, 379 U.S. 294 (1964): Posted 11/19/09 - 10:04 PM & 11/19/09 - 10:08 PM xyJoel: "The Civil Rights cases were but a natural progression from the over reaching "substantial effect" test that had been developed by prior Courts." das: now don't get ahead of yourself. The Katzenbaum decision may have used the term substantial effect but that is not a test for the court to apply. Instead it would be a political decsion. Where the constitution gives a power to congress, the supreme court has repeatedly held the power is "plenary". "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." Congress determines what is a significant concern worthy of commerce clause regulation. A majority of both houses of congress and the President of the United States (or two thirds of both houses of congress) deciding to regulate some aspect of interstate commerce makes it significant. The judges do not have a veto. Let's forget interstate for a moment, lets look at commerce with Indian tribes. Wouldn't a majority of both houses of congress and the president of the US (or 2/3 of both houses of congress) be constitutionally competent to decide whether to regulate commerce concerning even something which most people would consider mundane, and regulate it concerning even a single Indian tribe? All congress needs is a rational basis for finding a chosen regulatory scheme necessary to the protection (or promotion) of commerce, and in a rational basis test the legislature almost always wins. If anyone thinks that congress has over reached on the commerce clause their complaint is almost always with congress, not the courts. I'm sorry, could you tell me about the wheat consumption thing again? Edited by davidasearles on Nov 20, 2009 - 9:24 PM |
|
davidasearles
Graduate Usergroup: Members Joined: Oct 15, 2009 Total Topics: 3 Total Posts: 225 |
#55
Hanover: "if every act by definition satisfies the commerce clause, the commerce clause will have ceased to have any relevance." das: Again this is a mere tautology. You are saying nothing more than, if everything meets a definition then the definiton does not distinguish. |
|
davidasearles
Graduate Usergroup: Members Joined: Oct 15, 2009 Total Topics: 3 Total Posts: 225 |
#56
xyJoel: "You keep putting the cart before the horse and arguing that the CRA was ok because Congress acted within the bounds established by the Supreme Court." das: The rational basis test is not something the supreme court invented to adjudge commerce clause actions. "Rational basis" is at the heart of the way the judiciary in all the 50 states and federal govt. restrains itself when looking at legislation of any body or the rules of any administrative agency. |
|
xzJoel
Ennui Elucidator Usergroup: Sponsors Joined: Aug 30, 2005 Location: New Jersey Total Topics: 46 Total Posts: 1626
|
#57
davidasearles wrote: xyJoel: "You keep putting the cart before the horse and arguing that the CRA was ok because Congress acted within the bounds established by the Supreme Court." das: The rational basis test is not something the supreme court invented to adjudge commerce clause actions. "Rational basis" is at the heart of the way the judiciary in all the 50 states and federal govt. restrains itself when looking at legislation of any body or the rules of any administrative agency. For the time being I am done with this. The rational basis test is not at issue. The Civil Rights Act is not at issue. The comments I made are directed at whether a certain type of Congressional regulation is in fact regulation of interstate commerce. If you continue to refuse to address the issue of interstate commerce, there is nothing more for me to say. you see the cases I've cited. Either argue that personal consumption of home grown wheat is interstate commerce or we are done. “If a person truly believes that God is good and that everything God does is good, that person can’t be sad. Sadness is actually a sign of atheism.” The Baal Shem Tov I must be the biggest atheist of them all. |
|
davidasearles
Graduate Usergroup: Members Joined: Oct 15, 2009 Total Topics: 3 Total Posts: 225 |
#58
You said it yourself - it's the issue of interstate commerce. You think that the courts should have a veto over congress - "Oh that doesn't affect interstate commerce enough to justify intervention." E.g. as part of interstate commerce regulation congress requires life jackets be avilable for all passengers on ferries engaged in interstate commerce. Well, how often does a damned ferry boat sink? Would not having the life jackets actually hurt interstate commerce to a significant degree? This is apparently a type of question you think that courts should take up, while at the same time you decry "judical activism". I accept your concession. Edited by davidasearles on Nov 21, 2009 - 2:55 AM |
|
xzJoel
Ennui Elucidator Usergroup: Sponsors Joined: Aug 30, 2005 Location: New Jersey Total Topics: 46 Total Posts: 1626
|
#59
davidasearles wrote: You said it yourself - it's the issue of interstate congress. You think that the courts should have a veto over congress - "Oh that doesn't affect interstate commerce enough to justify intervention." E.g. as part of interstate commerce regulation congress requires life jackets be avilable for all passengers on ferries engaged in interstate commerce. Well, how often does a damned ferry boat sink? Would not having the life jackets actually hurt interstate commerce to a significant degree? This is apparently a type of question you think that courts should take up, while at the same time you decry "judical activism". I accept your concession. I accept that you don't believe in delegated authority or that it is the duty of the Court to keep Congress within its delegated authority. What more is there to be said? You won't discuss the issue because you know you are wrong and you are engaged in judicial apologetics. “If a person truly believes that God is good and that everything God does is good, that person can’t be sad. Sadness is actually a sign of atheism.” The Baal Shem Tov I must be the biggest atheist of them all. |
|
davidasearles
Graduate Usergroup: Members Joined: Oct 15, 2009 Total Topics: 3 Total Posts: 225 |
#60
xzJoel wrote: I accept that you don't believe in delegated authority or that it is the duty of the Court to keep Congress within its delegated authority. What more is there to be said? You won't discuss the issue because you know you are wrong and you are engaged in judicial apologetics. Oh I accept that C-O-N-G-R-E-S-S- was delegated A-U-T-H-O-R-I-T-Y to regulate interstate commerce; that it is up to the elected representatives of the people in the political branch to decide just what aspect or aspects of interstate commerce that congress wishes to regulate. Look at my life jacket example. Do you think that it is the job of the judiciary to look at each regulation that congress couches in terms of interstate commerce to determine if interstate commerce as a whole is sufficiently affected for the regulation to be valid under the constitution? You are thinking that life could turned back to a simpler time if we had some dampening mechanism that would prevent congress from using the commerce clause as the basis for certain regulations it has enacted over the last 100 years or so. What you are not seeing are the unintended consequences of inviting courts to in general have a significantly broader role in reviewing legislative and administrative acts. I am an apologist for the judiciary? ROTFLOL!!!! I am however an apologist for the separation of powers. The legitimate functioning of courts would be destroyed if they were saddled with the roll of second guessing the legislature, essentially making the entire judiciary a third house of congress. I can see the newspaper lead in such a case: "Today a federal magistrate judge threw out a charge by the Coast Guard that the ferry between Long Island, N.Y. and Connecticut failed to have sufficient life preservers because Congress when it passed the requirement failed to have sufficient data to show that the ferry not having the the required number of life preservers would affect interstate commerce to a significant degree." Edited by davidasearles on Nov 22, 2009 - 9:50 AM |
Sorry, you don't have permission to post. Log in, or register if you haven't yet.