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While I can begin to understand (though do not necessarily agree with) the interpretation of "commerce" as just about any activity, and that being possibly unde

by jspiros 14y ago

While I can begin to understand (though do not necessarily agree with) the interpretation of "commerce" as just about any activity, and that being possibly understood at the time the Commerce Clause was written, I would still argue that the Commerce Clause has been "perverted" more recently by cases that allow for interpreting purely intrastate activities as interstate commerce. The earliest explicit justification of that trend in interpretation (that I'm aware of) is Wickard v. Filburn, in 1942[1]. The prevailing interpretation today applies a sort of "butterfly effect" perspective on activity, such that any human activity (even flapping one's arms) will inevitably at some point affect interstate commerce, and can therefore be regulated by the federal government. So, where your average American in 1824 could go weeks without engaging in interstate commerce, more modern interpretations suggest that every American, even if living a lifestyle otherwise identical to that of their 1824 predecessor, engages in interstate commerce with practically every action. This interpretation makes the 10th amendment pointless, which is why I consider it "perverse". [1]http://en.wikipedia.org/wiki/Wickard_v._Filburn http://en.wikipedia.org/wiki/Wickard_v._Filburn

rayiner 14y ago
Look at the date of Wickard v. Filburn: 1942. It's a war-time case. It hasn't been overruled, but it's not really appropriate to cite it as the state of Commerce Clause jurisprudence today. The most appropriate statement is the one in U.S. Lopez (1995): Congress may regulate (1) use of the channels of interstate commerce, (2) the "instrumentalities" used in interstate commerce, and (3) activities that substantially affect interstate commerce. (lifting Wikipedia's paraphrasing) That's really very similar to the scope given in Gibbons. Remember, the individual mandate was struck down on Commerce Clause grounds, and only upheld on taxation authority grounds. That's where the Commerce Clause stands today after Rehnquist and Roberts. > So, where your average American in 1824 could go weeks without engaging in interstate commerce, more modern interpretations suggest that every American, even if living a lifestyle otherwise identical to that of their 1824 predecessor, engages in interstate commerce with practically every action. This isn't actually true. If you're a subsistance farmer using 1824 technology and consuming all the food you produce, Wickard aside there isn't much that the federal government asserts the right to regulate you over. The major issues to the contrary are things that were always latent in the Commerce Clause and exposed by technology. E.g. if you use modern fertilizer, which leaches off your farm into the waterways, then you can be federally regulated over that, but such regulation is consistent with the reasoning in Gibbons itself. Also, the 10th amendment is a nullity on its face. It basically boils down to "the federal government doesn't have any power it doesn't have." If a federal action falls within a reasonable reading of the Commerce Power, then the 10th amendment isn't implicated.

by jspiros 14y ago

rayiner 14y ago

Look at the date of Wickard v. Filburn: 1942. It's a war-time case. It hasn't been overruled, but it's not really appropriate to cite it as the state of Commerce Clause jurisprudence today. The most appropriate statement is the one in U.S. Lopez (1995): Congress may regulate (1) use of the channels of interstate commerce, (2) the "instrumentalities" used in interstate commerce, and (3) activities that substantially affect interstate commerce. (lifting Wikipedia's paraphrasing) That's really very similar to the scope given in Gibbons. Remember, the individual mandate was struck down on Commerce Clause grounds, and only upheld on taxation authority grounds. That's where the Commerce Clause stands today after Rehnquist and Roberts. > So, where your average American in 1824 could go weeks without engaging in interstate commerce, more modern interpretations suggest that every American, even if living a lifestyle otherwise identical to that of their 1824 predecessor, engages in interstate commerce with practically every action. This isn't actually true. If you're a subsistance farmer using 1824 technology and consuming all the food you produce, Wickard aside there isn't much that the federal government asserts the right to regulate you over. The major issues to the contrary are things that were always latent in the Commerce Clause and exposed by technology. E.g. if you use modern fertilizer, which leaches off your farm into the waterways, then you can be federally regulated over that, but such regulation is consistent with the reasoning in Gibbons itself. Also, the 10th amendment is a nullity on its face. It basically boils down to "the federal government doesn't have any power it doesn't have." If a federal action falls within a reasonable reading of the Commerce Power, then the 10th amendment isn't implicated.