4 ms·

I Germany it is also like in the US, except that list is very long and growing (next up is the Autobahn).

int_19h 10y ago
In US, the list is also growing in practice, via creative reinterpretation of existing text of the constitution. For example, the constitution says that the federal government has the right to regulate "interstate commerce". Originally, this was actually supposed to allow the feds to prevent the states from impeding commerce with other states (e.g. enacting tariffs on out-of-state goods etc). Over time, it became used instead by the feds to prevent or regulate the trafficking of some goods between states (e.g. the National Firearms Act did it for guns in 1930s). Then, finally, the meaning of "interstate commerce" was reinterpreted to mean any activity that can have a causal relationship on interstate commerce. The decision that sealed this was in a case of a farmer growing wheat for personal consumption (to feed farm animals), in defiance of the federal law that limited production of wheat. The farmer argued that, since the wheat didn't leave his farm, it was not commerce at all; and most certainly wasn't interstate commerce. The Supreme Court ruled that it was, because growing wheat for himself meant that he wasn't buying it on the market, thereby affecting prices, and that this effect crossed state lines - and that therefore Congress was in its right to enact a federal law prohibiting the farmer from doing that. https://en.wikipedia.org/wiki/Wickard_v._Filburn https://en.wikipedia.org/wiki/Wickard_v._Filburn Since then, this interpretation has been broadly used to regulate a lot of things - obviously, under this interpretation, pretty much anything is "interstate commerce". The most obvious example is the federal drug prohibiting private possession and consumption of drugs.
- smcl 10y ago
  Unless I'm missing something, that Wickard/Filburn example is bonkers! I can picture a Josef Heller/Catch 22 sorta scene: "you are influencing the market" "i'm not taking part in the market!" "yes, by not taking part in the market, you are influencing the market"
  - int_19h 10y ago
    There's one thing to keep in mind about the original Wickard decision: it was made in an era where the courts were still mostly practicing the doctrine of "judicial deference". What this means is that when there's a case where the courts have to rule on constitutionality of some law, they err on the side of ruling it constitutional, if there's any way to twist the wording such that it would allow the law - even if the legislators didn't think of that originally. The idea is that the laws enacted by duly elected legislators represent the will of the majority, which is sacrosanct in a true democracy, while the courts are not elected. Thus, the balance has to be in favor of the elected institution, and the courts have a duty to try to "save" any law by coming up with creative interpretations of the limiting clauses of the constitution. Oliver Wendell Holmes, the Supreme Justice of the Progressive Era (when that concept was at its peak), summed it up as, "a law should be called good if it reflects the will of the dominant forces of the community, even if it will take us to hell". That doctrine has been on the decline since the Civil Rights era, where SCOTUS was striking down state laws left and right as unconstitutional. But it still surfaces occasionally - e.g. in the recent decision on the constitutionality of the Affordable Care Act, and specifically its provision that requires people without insurance to pay a fine (https://en.wikipedia.org/wiki/National_Federation_of_Independent_Business_v._Sebelius https://en.wikipedia.org/wiki/National_Federation_of_Indepen...). The court said that the fine is a kind of tax, even though the text of the law uses the term "penalty" consistently, and the legislators that originally wrote the bill explicitly stated that it's not a tax back when it was under discussion (and its opponents insisted that it was a tax, ironically) So that doctrine kinda explains why they were willing to come up with such an obviously contorted interpretation. What's more interesting is why it stayed with us for so long... Other than that, you aren't missing anything. A significant chunk of federal laws since that decision was based in part or in whole on that interpretation. There is exactly one court case where that power was found insufficient: https://en.wikipedia.org/wiki/United_States_v._Lopez https://en.wikipedia.org/wiki/United_States_v._Lopez "The government's principal argument was that the possession of a firearm in an educational environment would most likely lead to a violent crime, which in turn would affect the general economic condition in two ways. First, because violent crime causes harm and creates expense, it raises insurance costs, which are spread throughout the economy; and second, by limiting the willingness to travel in the area perceived to be unsafe. The government also argued that the presence of firearms within a school would be seen as dangerous, resulting in students' being scared and disturbed; this would, in turn, inhibit learning; and this, in turn, would lead to a weaker national economy since education is clearly a crucial element of the nation's financial health." SCOTUS ruled that it was a connection that is too remote. But even then, the ruling was 5-4 - in other words, 4 judges believed that the rationale above is sufficient to accommodate the Commerce Clause! The problem with getting rid of this ruling is political. Since there's so much federal legislation that is only possible because of it, pretty much every political force (other than perhaps libertarians) has a stake in the game. For the liberals, if Filburn goes away, then so do important parts of the federal Civil Rights Acts (per https://en.wikipedia.org/wiki/Katzenbach_v._McClung https://en.wikipedia.org/wiki/Katzenbach_v._McClung), which prohibit discrimination of customers and employees on the basis of race, gender, religion etc. For many conservatives, overturning Filburn is undesirable because it would gut most federal drug laws (per https://en.wikipedia.org/wiki/Gonzales_v._Raich https://en.wikipedia.org/wiki/Gonzales_v._Raich).

In US, the list is also growing in practice, via creative reinterpretation of existing text of the constitution. For example, the constitution says that the federal government has the right to regulate "interstate commerce". Originally, this was actually supposed to allow the feds to prevent the states from impeding commerce with other states (e.g. enacting tariffs on out-of-state goods etc). Over time, it became used instead by the feds to prevent or regulate the trafficking of some goods between states (e.g. the National Firearms Act did it for guns in 1930s). Then, finally, the meaning of "interstate commerce" was reinterpreted to mean any activity that can have a causal relationship on interstate commerce. The decision that sealed this was in a case of a farmer growing wheat for personal consumption (to feed farm animals), in defiance of the federal law that limited production of wheat. The farmer argued that, since the wheat didn't leave his farm, it was not commerce at all; and most certainly wasn't interstate commerce. The Supreme Court ruled that it was, because growing wheat for himself meant that he wasn't buying it on the market, thereby affecting prices, and that this effect crossed state lines - and that therefore Congress was in its right to enact a federal law prohibiting the farmer from doing that. https://en.wikipedia.org/wiki/Wickard_v._Filburn https://en.wikipedia.org/wiki/Wickard_v._Filburn Since then, this interpretation has been broadly used to regulate a lot of things - obviously, under this interpretation, pretty much anything is "interstate commerce". The most obvious example is the federal drug prohibiting private possession and consumption of drugs.

smcl 10y ago
Unless I'm missing something, that Wickard/Filburn example is bonkers! I can picture a Josef Heller/Catch 22 sorta scene: "you are influencing the market" "i'm not taking part in the market!" "yes, by not taking part in the market, you are influencing the market"
- int_19h 10y ago
  There's one thing to keep in mind about the original Wickard decision: it was made in an era where the courts were still mostly practicing the doctrine of "judicial deference". What this means is that when there's a case where the courts have to rule on constitutionality of some law, they err on the side of ruling it constitutional, if there's any way to twist the wording such that it would allow the law - even if the legislators didn't think of that originally. The idea is that the laws enacted by duly elected legislators represent the will of the majority, which is sacrosanct in a true democracy, while the courts are not elected. Thus, the balance has to be in favor of the elected institution, and the courts have a duty to try to "save" any law by coming up with creative interpretations of the limiting clauses of the constitution. Oliver Wendell Holmes, the Supreme Justice of the Progressive Era (when that concept was at its peak), summed it up as, "a law should be called good if it reflects the will of the dominant forces of the community, even if it will take us to hell". That doctrine has been on the decline since the Civil Rights era, where SCOTUS was striking down state laws left and right as unconstitutional. But it still surfaces occasionally - e.g. in the recent decision on the constitutionality of the Affordable Care Act, and specifically its provision that requires people without insurance to pay a fine (https://en.wikipedia.org/wiki/National_Federation_of_Independent_Business_v._Sebelius https://en.wikipedia.org/wiki/National_Federation_of_Indepen...). The court said that the fine is a kind of tax, even though the text of the law uses the term "penalty" consistently, and the legislators that originally wrote the bill explicitly stated that it's not a tax back when it was under discussion (and its opponents insisted that it was a tax, ironically) So that doctrine kinda explains why they were willing to come up with such an obviously contorted interpretation. What's more interesting is why it stayed with us for so long... Other than that, you aren't missing anything. A significant chunk of federal laws since that decision was based in part or in whole on that interpretation. There is exactly one court case where that power was found insufficient: https://en.wikipedia.org/wiki/United_States_v._Lopez https://en.wikipedia.org/wiki/United_States_v._Lopez "The government's principal argument was that the possession of a firearm in an educational environment would most likely lead to a violent crime, which in turn would affect the general economic condition in two ways. First, because violent crime causes harm and creates expense, it raises insurance costs, which are spread throughout the economy; and second, by limiting the willingness to travel in the area perceived to be unsafe. The government also argued that the presence of firearms within a school would be seen as dangerous, resulting in students' being scared and disturbed; this would, in turn, inhibit learning; and this, in turn, would lead to a weaker national economy since education is clearly a crucial element of the nation's financial health." SCOTUS ruled that it was a connection that is too remote. But even then, the ruling was 5-4 - in other words, 4 judges believed that the rationale above is sufficient to accommodate the Commerce Clause! The problem with getting rid of this ruling is political. Since there's so much federal legislation that is only possible because of it, pretty much every political force (other than perhaps libertarians) has a stake in the game. For the liberals, if Filburn goes away, then so do important parts of the federal Civil Rights Acts (per https://en.wikipedia.org/wiki/Katzenbach_v._McClung https://en.wikipedia.org/wiki/Katzenbach_v._McClung), which prohibit discrimination of customers and employees on the basis of race, gender, religion etc. For many conservatives, overturning Filburn is undesirable because it would gut most federal drug laws (per https://en.wikipedia.org/wiki/Gonzales_v._Raich https://en.wikipedia.org/wiki/Gonzales_v._Raich).