The Key Issue for the Court Isn't Abortion

[A18]

A month old, but relevant again given the nomination of Miers:

http://www.cato.org/pub_display.php?pub_id=4724

Two recent infamous Supreme Court decisions -- one on property rights, the other on federalism -- may serve as wake-up calls for those who believe in limited government and individual liberty. For too long conservatives who understand the Enumerated Powers doctrine and the role the Constitution plays in limiting the power of government have allowed the religious right and Planned Parenthood to control the debate over the future of the judiciary in America. The litmus test for any judge must always be his or her view on Roe v. Wade, as though abortion and abortion alone should determine who sits on the federal bench.

Now, abortion is a serious issue -- one in which I've always believed neither side gave due credit to the valid arguments of the other. And I am a pro-choice advocate (up until the fetus is viable outside the womb) who nevertheless believes Roe was wrongly decided, giving a police power to the federal government that the Constitution denies the federal government. But the fact that the abortion debate so controls the debate over judicial philosophy is unfortunate. There are more important issues out there, such as federalism and private property rights, the cornerstones of our liberty.

The decision that provoked the loudest protests was Kelo v. City of New London, where in a 5-to-4 vote the Supremes ruled it was fine for a local government to use the frightening power of eminent domain, not for public use as stated plainly in the Fifth Amendment, but for private gain that would generate added tax revenues for the city. Fifteen private residences are to be destroyed to make room to an office building and upscale housing for corporate executives. Never mind if your house has been in the family for generations, you're out of luck. As Justice Sandra Day O'Connor put it in a stinging dissent, the fallout of this decision will not be "random." The little guy will get hit for the benefit of the wealthy and politically powerful -- in virtually every instance.

The good news with Kelo is that the reaction has been so strong that federal legislation has been introduced that would prevent the federal government from using economic development as a rationale for employing eminent domain. It would also apply to states and localities that planned to use federal funds for their development projects. Good for Congress if they pass this legislation. They are overdue to do something right. Further, the Institute for Justice, which fought the good fight in the Supreme Court, is taking the battle to the states where, it is hoped, state legislatures or the voters will reassert the primacy of private property in America. The first fruits of this effort came last week, when the Alabama legislature voted to restrict eminent domain takings by local governments. Lawmakers in dozens of states are considering similar protections.

The disappointing federalism case was Gonzales v. Raich, in which the Supremes, by a 6-to-3 vote, ruled in a California medical marijuana case that the federal War on Drugs trumped a state law that allowed the sick and dying to ease their pain through the use of marijuana. This shameful decision undermines the essence of federalism. Governance within our constitutional framework is to occur primarily at the state and local level. The national government is there to protect our liberties and to leave the states pretty much alone.

Granted, federalism has taken a good beating for some time -- at least since Franklin Roosevelt threatened to pack the Court if it didn't go along with his extraconstitutional initiatives. But this ruling came from the Rehnquist Court, the one that breathed new life into federalism in Lopez, telling Congress it didn't have the power to tell the people of Texas what kind of gun laws they had to have. So, the Raich decision was a real blow to those of us who believe in federalism.

Justice Antonin Scalia voted with the majority in Raich, prompting my colleague Roger Pilon to call him a "fair-weather federalist." Scalia evokes federalism when it suits him, but failed to recognize federalism when it was staring him in the face. That's unfortunate, because, without Scalia's assent, both cases would have had the so-called liberal bloc voting in lockstep and the conservative justices in principled opposition. His yea helped to obscure debate about the future of the Court -- something the hearings on Judge John Roberts' nomination will hopefully help clarify.

The truth is that liberals prefer having the debate over judicial philosophy center on abortion rights, which they view as peripheral to the debate over the proper role of government. They will not win an open debate on property rights (many low and moderate income Americans were outraged by the Kelo decision), nor do they want to resurrect the debate over federalism, which they thought the New Deal had put to rest.

[Emsworth]

The author makes a very good point. Although abortion is certainly important politically, its legal significance is not particularly great. Much more significant is the travesty of the destruction of federalism. Since Justice Owen Roberts' "switch in time to save nine," since Chief Justice Hughes' decision in NLRB v. Jones & Laughlin, the commerce clause has been interpreted as giving Congress carte blanche. In many cases, Congress has regulated activities that are commerce but not interstate; in others, it has regulated activities that are interstate but do not commerce; and in some, it has regulated activities that are neither commerce nor interstate.

Commerce clause powers have been carried to ridiculous extremes. In one instance, Congress passed a law that made rape a federal crime, on the grounds that it frightens women, thereby discouraging them from engaging in interstate commerce. In another, it passed a law punishing the possession of guns within school zones, on the grounds that, if the school environment were unsafe, students would have difficulty learning, and would in the future be unable to engage in high-quality interstate commerce by virtue of their lack of education.

These ridiculous extensions of congressional power have been struck down, but others have not. The war on drugs, labor laws, the minimum wage, federal restrictions on assisted suicide, federal environmental legislation--all of these are undoubtedly unconstitutional at the federal level, but the Supreme Court has done nothing as yet.

There were but three Justices who held reasonable interpretations on federalism issues: Rehnquist, O'Connor, and Thomas. Rehnquist's replacement seems to be pro-federal government; O'Connor's replacement is likely to be. This leaves only one Justice, Clarence Thomas, as a principled federalist.

[A18]

These ridiculous extensions of congressional power have been struck down, but others have not. The war on drugs, labor laws, the minimum wage, federal restrictions on assisted suicide, federal environmental legislation--all of these are undoubtedly unconstitutional at the federal level, but the Supreme Court has done nothing as yet.

Under the Commerce Clause, if the federal government has jurisdiction, the states do not. If Congress has power, for example, to impose a minimum wage, then all state minimum wages are clearly unconstitutional.

[○∙◄☻¥tπ[╪AV┼cVê└]

all state minimum wages are clearly unconstitutional.

LOL

[A18]

If Congress has power ... to impose a minimum wage, then all state minimum wages are clearly unconstitutional.

I do not agree that Congress has power to impose a minimum wage.

[○∙◄☻¥tπ[╪AV┼cVê└]

If Congress has power ... to impose a minimum wage, then all state minimum wages are clearly unconstitutional.

Yes, that's clearly an invalid argument.

[Peter]

Under the Commerce Clause, if the federal government has jurisdiction, the states do not. If Congress has power, for example, to impose a minimum wage, then all state minimum wages are clearly unconstitutional.

Whilst I agree that this dichotomy is true: something is either interstate commerce or intrastate commerce, never both, it is worth noting that this restriction does not extend to the other powers - nobody would seriously suggest that only the federal government may build roads.

Anyway, I would argue that the federal minimum wage can be upheld in a very few limited circumstances - jobs that genuinely involve interstate commerce. One of the prime examples of this is long distance truck drivers.

The rest of the minimum wage legislation is at best a suggestion to be taken up by the States - oddly enough, I believe that a few States, e.g. Maryland, have actually delegated their legislative authority (via referencing the federal minimum wage act) to set their minimum wage effectively to the federal government. I personally view this as taking up the suggestion.

[○∙◄☻¥tπ[╪AV┼cVê└]

I'd be interested in how the federal minimum wage makes state minimum wages unconstitutional. The federal minimum wage reads that for most people $5.15 is the minimum wage, although agriculture workers and those that rely on tips can be paid less. How is it then unconstitutional for Alaska to make their minimum wage be $7.15 an hour? It's perfectly consistant with the federal law.

[Emsworth]

If Congress has power ... to impose a minimum wage, then all state minimum wages are clearly unconstitutional.

Yes, that's clearly an invalid argument.

On the contrary, jfern, A18's argument is completely correct.

To quote Justice Story, "It has been settled upon the most solemn deliberation, that the power [to regulate interstate commerce] is exclusive in the government of the United States... A grant of a power to regulate necessarily excludes the action of all others, who would perform the same operation on the same thing. Regulation is designed to indicate the entire result, applying to those parts, which remain as they were, as well as to those, which are altered. It produces a uniform whole, which is as much disturbed and deranged by changing, what the regulating power designs to have unbounded, as that, on which it has operated."

The power to regulate interstate commerce is not a concurrent power. It is vested completely and absolutely in Congress alone. Whatever Congress may regulate under the commerce clause, no state may interfere with, in any way whatsoever. This was settled (correctly) by the Supreme Court under John Marshall.

Therefore, if wages are subject to congressional regulation under the commerce clause, then it follows that they cannot be subject to state regulation.

[Peter]

I'd be interested in how the federal minimum wage makes state minimum wages unconstitutional. The federal minimum wage reads that for most people $5.15 is the minimum wage, although agriculture workers and those that rely on tips can be paid less. How is it then unconstitutional for Alaska to make their minimum wage be $7.15 an hour? It's perfectly consistant with the federal law.

Commerce is either interstate/international or intrastate .

The first is the sole purview of the federal Government, and solely regulable by the feds.

The second is the sole purview of the Staes, and is solely regulable by the States.

If we were on crack, we might suppose that the minimum wage was a part of interstate commerce, and thus is only regulable by the feds, and therefore not by the States at all.

Of course, thats ultimately ridiculous since we aren't on crack except in a very few limited circumstances. The minimum wage is imo a positive thing, but I wholly recognise that it has to be passed at the State level under the Constitution.

[A18]

Jfern,

The congressional power to regulate interstate commerce is exclusive. See: Justice Story's Exposition on the Commerce Clause.

[○∙◄☻¥tπ[╪AV┼cVê└]

If Congress has power ... to impose a minimum wage, then all state minimum wages are clearly unconstitutional.

Yes, that's clearly an invalid argument.

On the contrary, jfern, A18's argument is completely correct.

To quote Justice Story, "It has been settled upon the most solemn deliberation, that the power [to regulate interstate commerce] is exclusive in the government of the United States... A grant of a power to regulate necessarily excludes the action of all others, who would perform the same operation on the same thing. Regulation is designed to indicate the entire result, applying to those parts, which remain as they were, as well as to those, which are altered. It produces a uniform whole, which is as much disturbed and deranged by changing, what the regulating power designs to have unbounded, as that, on which it has operated."

The power to regulate interstate commerce is not a concurrent power. It is vested completely and absolutely in Congress alone. Whatever Congress may regulate under the commerce clause, no state may interfere with, in any way whatsoever. This was settled (correctly) by the Supreme Court under John Marshall.

Therefore, if wages are subject to congressional regulation under the commerce clause, then it follows that they cannot be subject to state regulation.

Let me guess, you're also against states having stricter environmental laws? What's the point of having states if they can't do anything useful?

Clearly multiple levels of government can have laws that must be followed.  Just because the feds regulate cars doesn't mean that you won't get a parking ticket for violating local laws. If two laws exist with different minimums, clearly they are not contradictory, and the higher minimum is the law.

[A18]

It's not about being "for" or "against" something. You can disagree with the Constitution.

What kind of environmental laws? Most (if not all) federal environmental laws are unconstitutional.

[○∙◄☻¥tπ[╪AV┼cVê└]

We've got a bunch of crazies on this forum. Given that a federal minimum wage exists, "OMG Alaska's minimum wage is unconstitutional".

It's only unconstitutional if it violates the Alaska constitution.

[○∙◄☻¥tπ[╪AV┼cVê└]

What kind of environmental laws? Most (if not all) federal environmental laws are unconstitutional.

You're just a crazy. Let me guess, you think that no enivironmental laws should apply to National Parks?

[ATFFL]

We've got a bunch of crazies on this forum.

Stopped clock theory in action right there.

[A18]

National parks are unconstitutional, but the federal government has plenary power over its property.

James Madison and John Marshall were crazies, I presume?

[○∙◄☻¥tπ[╪AV┼cVê└]

National parks are unconstitutional, but the federal government has plenary power over its property.

It's time for the Teddy Roosevelt wing of the Republican party to reclaim it from people like you.

[Emsworth]

Let me guess, you're also against states having stricter environmental laws? What's the point of having states if they can't do anything useful?

Clearly multiple levels of government can have laws that must be followed.  Just because the feds regulate cars doesn't mean that you won't get a parking ticket for violating local laws. If two laws exist with different minimums, clearly they are not contradictory, and the higher minimum is the law.

The power to regulate does not involve merely the power to impose rules. It also involves the power to keep something free from rules.

Regulation is designed to indicate the complete effect, the total result, of the rules relating to a particular activity. A state disturbs regulations just as much by adding to them, as by subtracting from them.

As it so happens, the federal government does not have the power to regulate wages, or pass environmental legislation, under the commerce clause. If it did, then state action in these areas would be forbidden.

National parks are unconstitutional, but the federal government has plenary power over its property.

Of course, there is no power to acquire property for the purpose of constructing a national park in the first place.

[○∙◄☻¥tπ[╪AV┼cVê└]

Let me guess, you're also against states having stricter environmental laws? What's the point of having states if they can't do anything useful?

Clearly multiple levels of government can have laws that must be followed.  Just because the feds regulate cars doesn't mean that you won't get a parking ticket for violating local laws. If two laws exist with different minimums, clearly they are not contradictory, and the higher minimum is the law.

The power to regulate does not involve merely the power to impose rules. It also involves the power to keep something free from rules.

Regulation is designed to indicate the complete effect, the total result, of the rules relating to a particular activity. A state disturbs regulations just as much by adding to them, as by subtracting from them.

As it so happens, the federal government does not have the power to regulate wages, or pass environmental legislation, under the commerce clause. If it did, then state action in these areas would be forbidden.

Umm, no, the federal government can pass said regulations, which require a minimum of certain standards. It says nothing about whether a state can impose tougher standards. If the federal government wanted to prevent that, then they'd pass a law stating the minimum wage was $5.15 an hour everywhere in the United States, regardless of locality.

[Emsworth]

Umm, no, the federal government can pass said regulations, which require a minimum of certain standards. It says nothing about whether a state can impose tougher standards. If the federal government wanted to prevent that, then they'd pass a law stating the minimum wage was $5.15 an hour everywhere in the United States, regardless of locality.

Congress cannot delegate the power to regulate commerce to other bodies. The very first clause of the Constitution is, "All legislative Powers herein granted shall be vested in a Congress of the United States." Congress may not confer its power on other authorities, even states.

Thus, if Congress has the power to regulate commerce among the states, it may not transfer such power to the states. Therefore, if wages fell under "commerce ... among the states," then Congress, and Congress alone, may regulate them.

[○∙◄☻¥tπ[╪AV┼cVê└]

Congress may not confer such its power on other authorities, even states.

Where do you get that?

[A18]

He already said: All legislative Powers herein granted shall be vested in a Congress of the United States. (Article I, Section 1)

Congress can not delegate its power to regulate interstate commerce to the states any more than it can delegate that power to the president, or to France.

[○∙◄☻¥tπ[╪AV┼cVê└]

He already said: All legislative Powers herein granted shall be vested in a Congress of the United States. (Article I, Section 1)

Congress can not delegate its power to regulate interstate commerce to the states any more than it can delegate that power to the president, or to France.

Sounds like an activist reading of the constitution to me. Nowhere does it say that Congress has to be the one to do perform all types of regulation. It just says they have the power to.

[Peter]

Congress may not confer such its power on other authorities, even states.

Where do you get that?

http://en.wikipedia.org/wiki/Clinton_v._City_of_New_York

Concurred by some of your favourite Justices I might add.