This reminds me of the following:

Traveller: Why don't you fix that leaky hole in your roof?

Local: Well, stranger, when it's raining it's too wet, and when it's dry, it's just as good as any man's house.

(from Arkansas Traveller, Woody's Rag--shockingly not on youtube)
 

Just to add some historical background, the major changes in the Constitution since 1791 have mostly come during or as a result of crises: the 12th, 13th, 14th, and 15th Amendments, and the New Deal. The most notable changes which took place in a quieter environment would be the income tax, direct election of Senators, and womens' vote.
 

On a more serious note, recall that, from various sources, the Bush administration had decided going in that they were going to do regime change/invasion of Iraq. Thus, they had planned in periods of calm what they wanted to do. Once there was a crisis, they then started to move the discussion and facts towards their original goal.

Regardless of their handling of the invasion and its aftermath, this was a policy planned in the calm periods. Preparation is not always a good thing.
 

One of the issues in the quote the post keys relates to executive authority to act unilaterally as the leader of the military before even asking congress to approve.

To frame convening a new constitutional convention in the same terms is a bit dissimilar.

However, the concept proposed by the professor is an interesting one to ponder, namely, the issue of ripeness of beginning a wholesale remake of the underpinnings of our experiment in government.

The author also adds the flavor of disapproval of the current lameduck administration's eight year record. This argument includes both the lameduck interregnum as well as subtending tacitly all the other acts which the writer disapproves in these past eight years which have led to the writer's mistrust and misgivings.

Maybe a term, or more, of some different sort of leadership, such as the presidency now beginning, will draw more persons of character into government and constitute a rejuvenation of the best the constitution is intended to foster. I would trust some of those later folks more than some of the ones currently in office, if, indeed, those are the invitees to the putative new constitutional convention.

Looking at who goes to the quadrennial political conventions, and who are the electors in the electoral college, I suspect those are the people likely to receive the call to be the principals at such a new constitutional convention.

My sense is the constitution was designed slyly to keep the politicians in turmoil while allowing the smartest people actually to do the governance. Yet, sometimes it seems like an accretion of decades of US politics has brought our government to face many old world kinds of dilemmas and standoffs. And society seems to be morphing at a decent clip, as well.
 

Sandy, the optimal time for making a decision is whenever the circumstances warrant.

There was never a horse that couldn't be rode, and never a cowboy that couldn't be throwed. Fixed rules are for losers: there is no substitute for understanding what you are doing and sound decision-making.

The problems with the Bush gang and their political supporters couldn't be any more clear:

1) They are unreasoning fanatics and pathological liars.

2) They are fools.

3) They are congenital criminals.

The soultion for those problems is equally clear: vigorous law enforcement. These people MUST be prosecuted and PUNISHED for their crimes. The lawyers among them should be banned from any involement with the legal profession for life.
 

"As Rahm Emanuel apparently has said, "A crisis is a terrible thing to waste." I presume that what he is getting at is precisely that crises, like the prospect of dying the next morning, tends to clarify the mind."

Or maybe that you can get people to agree to things in a panic they'd never consent to after calm reflection. I think that's probably closer.

"Similarly, if we can't engage in a serious discussion now about presidential succession because we're in the midst of a crisis,"

Somebody's engaging in serious discussion of this? Where?

Perhaps we can have a serious discussion of this, once it's possible for you to leave Bush out of it. (I assume, perhaps over-optimistically, that you're not going to blame a world-wide economic crisis decades in the making on Bush.) Now is the time to pursue this, the only time it could happen, in fact: If the rules for transition are changed in the first term of a popular President, they will be neutral to time served, because it can be expected he'll have a second term, and just take over from himself at a different date. So members of neither major party have a partisan motive for opposing reform.

"the major changes in the Constitution since 1791 have mostly come during or as a result of crises: ... and the New Deal."

I'm unaware of any (significant) changes to the Constitution as a result of the New Deal. The New Deal began in January of '33, when FDR took office, and had certainly ended by WWII. The only change to the Constitution during that period was the repeal of Prohibition, proposed and ratified in '33, and I'm having a hard time seeing that as a major change. or accepting that it was a result of the New Deal. Other than that, the New Deal was, if anything, notable for the fact that the Constitution went so long without change.

Perhaps you were referring to major constitutional violations, instead?
 

Brett,

Oh, as if you lying right wing idiots are ever serious about ANYTHING?

Just exactly what do you blame Bush for?
 

At best, governments are slow, inflexible, without foresight and thus utterly reactive. It is the nature of the beast and the reason I laughed at the idea that a regulatory state bureaucracy could have foreseen the problem with mortgage derivatives and nipped it in the bud. The far more invasive EU bureaucracies were no less clueless than our supposedly "deregulated" bureaucratic behemoth concerning this problem.

The idea of sunset provisions for legislation and regulation is a great idea because much legislation and regulation was originally a bad idea reacting to a bad set of facts or political situation

However, I am surprised a proponent of larger government like Sandy would suggest such a remedy. Sunset provisions are a classic small government tool because statutes and regulations are unlikely to survive repeated votes and opportunities to block them. Then again, Sandy only praised a sunset provision applied to legislation he opposed - the Patriot Act.

Sandy, would you apply sunset provisions to all legislation such as your proposed single payer health care entitlement enacted during an economic crisis so a more sober future Gingrich style Congress could end it during good times as they did welfare?
 

I'm unaware of any (significant) changes to the Constitution as a result of the New Deal.

The New Deal corrected the previous misunderstandings of the Constitution and allowed it to function more like it was supposed to.
 

Mark Field said...

Brett: I'm unaware of any (significant) changes to the Constitution as a result of the New Deal.

The New Deal corrected the previous misunderstandings of the Constitution and allowed it to function more like it was supposed to.

LMMFAO! Good heavens Mark, thanks for the morning belly laugh.

One only needs to read the Federalist Papers to realize that the drafters of the Constitution really intended the President to also be legislator and judge and that the power to regulate interstate commerce really meant Congress had the power to enact any legislation it pleased.
 

Sandy, your respondent wasn't commenting on timing, the optimal time for action or decision making, crises or not, whether 'tis better.

He was reflecting on lying, fabricating, making shit up. I take it he was being cute, as there is never a good time for that, but his point remains good: a crisis is a particularly bad time even while it remains a particularly tempting time to do so.

Bush, it turns out, could resist anything but temptation, crisis or not, and was prone to lying all his life. Ivins warned us of this, but we didn't listen.

So I don't see a Constitutional issue here, outside of the highly tangential you cite.

It is never a good time for a high official to make shit up, to fool himself and/or others, to leave reality behind. Ever.

If you think it's a bad idea to fabricate a crisis when there really isn't one, consider fabricating there isn't onei when in fact there is or shortly will be. The credit crisis comes to mind. How many years were there to spot that one coming down the road? How many of those years was Bush in power?

It's never a good time to make shit up. A crisis is merely worse because it helps get other people to go along with your delusions.
 

It's certainly possible that I misread the posting as jpk has suggested. But I presume that there is never an appropriate time to lie, fabricate, etc. It's simply easier to get away with this when people are scared and the fabricators are "authority figures." I suppose the meaning of the original posting depends on the semantics of "shit," and whether we look to the intention of the author of the meaning assigned the term by the audience.
 

My take on nocasa's comment regarding making shit up was that Sandy's proposals to remove junior early by retiring cheney, appointing obama, and then junior himself retiring, that this scheme smacked of 'making shit up' and stood, at least in nocasa's opinion, in a similar light to many of junior's own half baked schemes. So, nocasa seemed to me to be saying that such a move to retire junior early was itself rather half baked and could quickly become the standard way for a president to leave office early, thus avoiding the lame duck scenario.

That said, crisis is when the iron is hot. An amendment better serves to address the lame duck problem than exploiting a loophole.

If there isn't enough impetus to get an amendment through, then the crisis isn't big enough.
 

One only needs to read the Federalist Papers to realize that the drafters of the Constitution really intended the President to also be legislator and judge and that the power to regulate interstate commerce really meant Congress had the power to enact any legislation it pleased.

Bart's half right here. The framers' views on separation of powers were somewhat incoherent, and as a result you can certainly argue that there is no clear prohibition in the Constitution to creating administrative agencies.

But he's definitely right on the commerce clause. There isn't a single framer who ever even thought that the federal government would have an unlimited power over INTRA-state commerce. You can argue that as a matter of REALITY, there's no way to draw a clear line between interstate and intrastate in an interconnected economy (that's how most liberals justify Wickard and is basically consistent with Scalia's position in Reich as well), but claiming that Wickard "corrected a misunderstanding" is just a baldfaced lie. The BEST one can say for it is that the expansion of the commerce power was inevitable, not that the universally-held understanding of the Constitution as limiting federal power over commerce that didn't cross state lines was incorrect.
 

What Wickard and similar cases did was leave it to Congress to decide what to regulate as interstate commerce and how to regulate it. Critics of the Lochner-era Court like Frankfurter had repeatedly criticized the Court for overstepping its bounds and interfering with majority rule regulation of commerce.

Majority rule was Marshall's rule in McCulloch v. Maryland: "But we think the sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people."

James Madison criticized Marshall's reasoning precisely because the Court’s “latitude” of interpretation created “a Legislative discretion … to which no practical limit can be assigned.”

In short, Marshall had long before established the same rule that Wickard and other cases re-established. IMO, it's the correct rule.
 

In thinking about this more, I realized that my original post was incomplete. When I said "the New Deal" corrected previous misunderstandings, I had in mind the whole process from 1937 to 1969, i.e., including the Civil Rights movement. I shouldn't have limited my comment to the New Deal, because that made it seem like I only had the Commerce Clause in mind. I did have that in mind, but I had other issues in mind also.

In addition, when I said that these decisions "allowed the Constitution to function like it was supposed to", I didn't mean "supposed to" in the sense of "originally intended", but in the sense of "how republican government should operate".*

All that said, I think there's a good historical argument for a broad reading of the Commerce Clause.

*Since I'm not an originalist, and don't even believe that there was such a thing as "an" original meaning, my posts will never claim any "originalist" meaning. The history I refer to above includes the various meanings attached by all parties and the actual application by courts and others, not to some fictitious "meaning" in 1788.
 

This comment has been removed by the author.
 

What Wickard and similar cases did was leave it to Congress to decide what to regulate as interstate commerce and how to regulate it.

Unfortunately, the problem with that is that the commerce clause isn't a political question-- there is nothing in the text or history of the Constitution that indicates that anyone thought that Congress would determine the constitutionality of the limits on its own powers.

If you want to carry your position all the way, i.e., if you want Congress to be able to determine the scope of the First Amendment, the protections on criminal procedure, cruel and unusual punishment, whether or not something is a bill of attainder or ex post facto law, etc., then you'd have a consistent (but very wrong) position.

But I doubt that's your actual position. Rather, you believe that the Constitution's limit on Congress' power to regulate intrastate commerce is WRONG. Which is fine, but doesn't justify Wickard as constitutional law.

Look, honest supporters of the New Deal changes admit that the Court rewrote some longstanding interpretations of the Constitution.

Finally, McCulloch doesn't support your position at all. The Bank of the United States transacted interstate business; the issue was whether the power to charter a bank was permitted by the "necessary and proper" clause despite not being specifically mentioned in the Constitution.

However, if Congress had decided to charter a LOCAL bank on Main Street in Schenectady, New York which did solely intrastate business, Marshall would have found it unconstitutional. He did not rule out all judicial review of interstate commerce issues.

Again, just be honest. You don't LIKE limits on Congress' power to regulate local activities. That's why you like Wickard. There's clearly NOT ONE WORD in the text or drafting history of the Constitution that indicates that the framers thought they were giving Congress the power to regulate the activities of subsistence farmers.
 

I should mention one other thing. Wickard DOES NOT adopt the political question rule that you claim McCulloch did. Rather, Wickard pretends there ARE limits on Congressional power, but just eviscerates them in practice by allowing the most tenuous connections to interstate activity to count as sufficient to justify Congress' regulations.

But that's very different from saying it's up to Congress to determine the limits itself.

Again, you aren't telling the truth here. You know damned well that nobody in 1787 thought that Congress would be regulating the activities of subsistence farmers. Nor did John Marshall think that would happen when he issued his opinion in McCulloch.

Instead of pretending that Wickard was what the framers really intended and understood, why don't you just recognize what just about every SUPPORTER of Wickard does-- that Wickard was a product of a perception in the 1930's and 1940's that the country had become more interconnected, that economic problems were national, and that maintaining limits on Congress' power over commerce was thus impractical.
 

Lastly, I don't think your claim about originalism gets you out of your problem. You claim there's a "historical" argument for Wickard, but as I said, you know that's BS.

What your real claim seems to be is that Wickard was the "right" rule all along because that's how republican governments "should" function. Of course, that's wrong on the merits-- we have people in jail for the "crime" of supplying cancer patients with marijuana precisely because of Wickard. Respect for local control of economic regulation that does not produce externalities that harm other states is indeed how republican government should function.

But even if you were right in theory about republican government, has it ever occurred to you that THE FRICKING CONSTITUTION DOESN'T ENACT EVERYTHING MARK FIELD BELIEVES IS NECESSARY FOR A WELL FUNCTIONING GOVERNMENT? Nor does it enact everything I think is necessary, or everything Sandy Levinson or Bart DePalma thinks is necessary.

Rather, the constitution has a lot of things in it you hate. For instance, we know you don't like the inauguration date and electoral college. So why not just let the Supreme Court interpret those things out of the Constitution, on the grounds that the "correct" interpretation is the one that a republican government SHOULD have?

Look, you need to grow up. The Constitution doesn't permit regulation of intrastate commerce. It's in the text. It's in the drafting history. It was specifically discussed by the framers. It was understood for 150 years-- including by John Marshall. It is still paid lip service to even now, as even Wickard and its successor cases don't claim that all local commercial activity is actually subject to federal regulation.

If you don't like it, go live somewhere else. There are plenty of countries with federal governments that have unlimited commerce powers. Ours doesn't. Or you can just be happy that you've won the war in the sense that even though we have limits, they aren't enforced.

But don't pretend that your personal (and totally wrongheaded) conception of an unfederalist system is actually what the Constitution enacted. "Whatever Mark Field thinks SHOULD be in the Constitution" is not a valid form of Constitutional interpretation.
 

We've been through this debate about the Commerce Clause before. I doubt any minds were changed then, but I'll review the record speaking to everyone, not just lawyers.

Congress has the power to regulate “commerce”. In addition, it has the power to pass all laws “necessary and proper” to regulate “commerce”. It didn’t take long for the new government to realize that people might have differing views about what laws might be “necessary” for such regulation, and therefore whether we could identify any “stopping point” in the power allocated to Congress. This dispute necessarily included disagreement about the nature and extent of majority rule under a written constitution.

In 1790, Hamilton introduced a plan for a national bank as part of his economic program and Congress passed the bill creating one. Jefferson immediately opposed the bank on constitutional grounds. President Washington asked each of them for their opinion on the constitutionality of the bank in order to decide whether he should sign the bill or veto it.

Jefferson began by identifying his principal concern:

“I consider the foundation of the Constitution as laid on this ground: That “all powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people.” [10th amendment.] To take a single step beyond the boundaries thus specially drawn around the powers of Congress is to take possession of a boundless field of power, no longer susceptible of any definition. The incorporation of a bank, and the powers assumed by this bill, have not, in my opinion, been delegated to the United States by the Constitution.”

He then pointed out that the creation of a national bank did not, in itself, raise taxes, borrow money, regulate commerce, or satisfy any other of the specifically delegated powers in Article I. This was an easy argument, since nobody really claimed that it did do any of these things. What the supporters did claim was that the bank was a “necessary and proper” means to accomplish the specified goals. Jefferson argued that this proved too much, that such reasoning would give Congress unlimited power, contrary to the very purpose of delegating only specified powers:

“It has been urged that a bank will give great facility or convenience in the collection of taxes. Suppose this were true: yet the Constitution allows only the means which are “necessary,” not those which are merely “convenient” for effecting the enumerated powers. If such a latitude of construction be allowed to this phrase as to give [even a single] non-enumerated power, it will [give every imaginable power], for there is not one which ingenuity may not torture into a convenience in some instance or other to some one of so long a list of enumerated powers. It would swallow up all the delegated powers.... Therefore it was that the Constitution restrained them to the necessary means, that is to say, to those means without which the grant of power would be [worthless].”

In short, Jefferson argued from the very beginning that a broad interpretation of the Commerce Clause would have exactly the impact you've identified in your comments. The people of 1790 understood the consequences we're discussing here.

Hamilton knew this was Jefferson’s strongest argument and he devoted his reply to defeating it. Hamilton very cleverly used Jefferson’s own logic against him. If Jefferson’s position were carried out to its logical conclusion, Hamilton argued, governments would be unable to do much of anything at all:

“Such a construction would beget endless uncertainty and embarrassment. The cases must be ... extreme in which it could be pronounced with certainty that a measure was absolutely necessary, or one without which the exercise of a given power would be [worthless]. There are few measures of any government which would stand so severe a test. To insist upon it would be to make the criterion of the exercise of any implied power a case of extreme necessity...."

Hamilton acknowledged “that difficulties on this point are inherent in the nature of the federal constitution. They result inevitably from a division of the legislative power. The consequence of this division is that there will be cases clearly within the power of the National Government; others clearly without its power; and a third class, which will leave room for controversy and difference of opinion, and concerning which a reasonable latitude of judgment must be allowed.” In his view, “how much is delegated in each case is a question of fact to be made out by fair reasoning and construction upon the particular provisions of the Constitution—taking as guides the general principles and general ends of government.” President Washington agreed with Hamilton and signed the bill creating the bank.

It's in this context that Marshall concluded in favor of a broad construction of the Commerce Clause: “We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people."

In later defending his opinion in McCulloch against criticism by Jefferson and others, Marshall repeated that "[The Constitution] is intended to be a general system for all future times, to be adapted by those who administer it, to all future occasions that may come within its own view." Again, we see that he expected the national majority to decide these questions.

There are two things I'd emphasize at this point. The first is that Marshall and others did very much expect the general outlines of the Constitutional powers to be decided by majority rule in many cases (as did Madison). The second is that they expected the extent of the power to change according to circumstances. Let me elaborate on this.

Probably the single biggest reason for the Convention was that the states were passing commercial regulations which interfered with commerce. Nobody doubted this. Luther Martin, a delegate to the Convention from Maryland who opposed ratification, agreed that “because the States individually are incompetent to the purpose, that the United-States should also regulate the Commerce of the United-States foreign & internal, is I believe a matter of general Consent…”

The delegates to the Convention had a general idea regarding which powers belonged where. The Virginia Plan was a series of resolutions introduced by Edmund Randolph at the beginning of the Convention. In outline form it identified the general principles for the proposed new government. One of those principles stated that Congress should have the power “to legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual Legislation…”

That basic idea never changed, though of course the delegates often hotly debated the details and implementation of that principle. Thus, Madison characterized the Constitution in Federalist 10 as granting “the great and aggregate interests … to the national [legislature], the local and particular to the State legislatures.” Similarly, in Federalist 14 he reminded his readers that “the general government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects, which concern all the members of the republic, but which are not to be attained by the separate provisions of any [single State].” In the Pennsylvania ratifying convention, James Wilson paraphrased this particular resolution in explaining the basis on which the Convention allocated power between the state and federal governments: “On this point a general principle readily occurred, that whatever object was confined in its nature and operation to a particular State ought to be subject to the separate government of the States; but whatever in its nature and operation extended beyond a particular State, ought to be comprehended within the federal jurisdiction.”

The Convention adopted this particular resolution of the Virginia Plan -- that Congress should have power to legislate in all cases where the individual states were incompetent -- on July 17, 1787, and again on July 26 as part of a series of general principles. It then appointed a “committee of detail” to make these resolutions more specific. Massachusetts delegate Nathaniel Gorham, referring to this particular resolution, explained the procedure: “We are now establishing general principles, to be extended hereafter into details which will be precise & explicit.”

The detail committee came back with a list of powers for Congress which appears in Article I, Section 8. That list presumably consisted of all the particular things the committee could think of to which the states were individually incompetent or which might disturb the harmony of the Union. The power to regulate “commerce among the several states” is one of those powers.

If the whole point of the Commerce Clause was to enable Congress to legislate in all cases in which the states, individually, were incompetent, or which might disturb the harmony of the Union, it would make no sense to allow each state to interfere with that regulation. In addition, any attempt to define “interstate commerce” must include those activities which, if Congress didn’t regulate them, might disrupt the harmony of the Union. It’s pretty obvious that that can best be decided in the legislature which represents the nation as a whole. Congress – in the long run, that’s us – pretty much has to be the judge of its power; any other rule would defeat the very reason for the Clause in the first place. That's how I read what Marshall was saying.

Any originalist argument against this reasoning has to focus on the specific facts of 1790 and ignore the general principles at stake. It's very true that an individual growing wheat didn't have any impact on "commerce among the states" in 1790. That's irrelevant in my view. The key point is not the specific factual application, it's the general principle. Just as the right to own a gun, say, wouldn't be limited to the guns of 1790, so the application of the Commerce Clause can't be restricted to the economic conditions of that era.

It certainly is true that the post-1937 Court changed the interpretation of the Commerce Clause from what it had been for some time before. There was a good reason for that -- the Court had gotten too activist and was intervening constantly in the legislative process. That's what Jefferson had wanted it to do, and it's what Marshall rejected.
 

I'll use this separate post to add some additional comments to specific points.

If you want to carry your position all the way, i.e., if you want Congress to be able to determine the scope of the First Amendment, the protections on criminal procedure, cruel and unusual punishment, whether or not something is a bill of attainder or ex post facto law, etc., then you'd have a consistent (but very wrong) position.

I don't see it as an all-or-nothing proposition like that. I think someone -- say, John Hart Ely -- could argue that some cases should be decided by majority rule but others should not. There's nothing inconsistent in that. In fact, it's pretty much the position everyone takes in practice, though they disagree on where to draw the line.

Wickard DOES NOT adopt the political question rule that you claim McCulloch did. Rather, Wickard pretends there ARE limits on Congressional power, but just eviscerates them in practice by allowing the most tenuous connections to interstate activity to count as sufficient to justify Congress' regulations.

I wouldn't quibble with this, but I don't think it matters. The bottom line is the same.
 

Congress has the power to regulate “commerce”.

I'm just going to stop right here, because this is simply a knowing falsehood.

Congress DOES NOT have the power to regulate all commerce. It has the power to regulate commerce AMONG THE SEVERAL STATES (and in a couple of other instances not germane to our argument).

THAT'S what the Constitution says. Not ALL commerce. Commerce among the several states.

Everything you say assumes a GENERAL power of Congress to regualate all commerce which is completely contrary to the expressed text of the Constitution.

If you are willing to read that out of the Constitution, you should be willing to read out of the Constitution anything else you don't like, like the electoral college or the inauguration date.

At bottom, as I said, you are interpreting a Constitution that you wished existed but which does not.
 

It's very true that an individual growing wheat didn't have any impact on "commerce among the states" in 1790. That's irrelevant in my view. The key point is not the specific factual application, it's the general principle. Just as the right to own a gun, say, wouldn't be limited to the guns of 1790, so the application of the Commerce Clause can't be restricted to the economic conditions of that era.

This is worth addressing too. The problem isn't that we might need to expand the conception of "commerce" from 1791 until 2008. The problem is writing "among the several states" out of the Constitution entirely.

The reason for this is one of the most widely accepted canons of construction, which is that words in a statute must be given meaning. In other words, one can come up with different arguments as to how broad the Second Amendment right to bear arms is, running from a claim that only those guns around at 1791 were protected all the way to an argument that just about all weaponry is. You can draw any line in that range. But if you draw a line that says "the Second Amendment was written for a society that needed an armed populace, now an armed populace would be bad for society, therefore we are going to give the Second Amendment no meaning", that would be an illegitimate argument. You can construe, you can adjust to present circumstances, you can anaologize. But you just can't repeal.

If you want "among the several states" out of the Constitution, that's what amendments are for. But until then, it's there and the decision to vitiate it in Wickard stands as both a sea change in constitutional law and the imposition of a constitutional doctrine that was clearly wrong because it was entirely contrary to the text. The Mark Field constitution was never ratified, and the one that WAS ratified prohibits congressional regulation of purely local commercial activities and empowers the judiciary to strike them down.
 

And one more. Marshall clearly believed that there were limits (albeit not as strong limits as I might argue for) on the commerce power when it came to regulation of local activities. The key passage is from Gibbons v. Ogden, which unlike McCulloch is actually a commerce clause case:

"The word “among” means intermingled with. A thing which is among others, is intermingled with them. Commerce among the States, cannot stop at the external boundary line of each State, but may be introduced into the interior…. Comprehensive as the word “among” is, it may very properly be restricted to that commerce which concerns more States than one."

Thus, unlike you, Marshall recognized that wholly intrastate commerce was outside of Congress' power to regulate.
 

I'm just going to stop right here, because this is simply a knowing falsehood.

It was shorthand.

The key passage is from Gibbons v. Ogden, which unlike McCulloch is actually a commerce clause case:

"The word “among” means intermingled with. A thing which is among others, is intermingled with them. Commerce among the States, cannot stop at the external boundary line of each State, but may be introduced into the interior…. Comprehensive as the word “among” is, it may very properly be restricted to that commerce which concerns more States than one."

Thus, unlike you, Marshall recognized that wholly intrastate commerce was outside of Congress' power to regulate.

The key phrase in the passage you bolded is "concerns more states than one." In the context of 1790, wheat grown by an individual farmer didn't do that. In the context of 1940, it did. The principle stays the same, the facts to which it applies differ.

I can tell that you don't like Wickard. I think it's correctly decided. Whether it is or not, though, is beyond the point of the original post, namely when is the best time to engage in reform. I merely pointed out that many important changes "in the Constitution" did occur during a time of crisis. In your view the change then was illegitimate; fine, but it was still, for all practical purposes, a change in the Constitution.
 

FWIW, the element of the Court's unconstitutional expansion of Congress' Commerce Clause power that most insulted common sense IMHO was the "interpretation" of the term "commerce" far beyond its common meaning. The Commerce Clause was meant to plainly meant to provide Congress the power to regulate trade between the states, not to legislate on any subject that could theoretically affect the economy.

It is the redefinition of the term commerce rather than the inter vs. intra state argument that caused the most mischief.
 

I've probably said way too much on this subject, but hey, in for a dime in for a dollar.

In considering what was intended by the commerce clause, it's important to keep in mind ALL the commercial problems the Constitution tried to fix. In April 1787, Madison drew up a document he called "Vices of the Political System of the United States". Here's what he wrote in relevant part:

"4. Trespasses of the States on the rights of each other.

These are alarming symptoms, and may be daily apprehended as we are admonished by daily experience. See the law of Virginia restricting foreign vessels to certain ports--of Maryland in favor of vessels belonging to her own citizens--of N. York in favor of the same.

Paper money, instalments of debts, occlusion of Courts, making property a legal tender, may likewise be deemed aggressions on the rights of other States. As the Citizens of every State aggregately taken stand more or less in the relation of Creditors or debtors, to the Citizens of every other States, Acts of the debtor State in favor of debtors, affect the Creditor State, in the same manner, as they do its own citizens who are relatively creditors towards other citizens. This remark may be extended to foreign nations. If the exclusive regulation of the value and alloy of coin was properly delegated to the federal authority, the policy of it equally requires a controul on the States in the cases above mentioned. It must have been meant 1. to preserve uniformity in the circulating medium throughout the nation. 2. to prevent those frauds on the citizens of other States, and the subjects of foreign powers, which might disturb the tranquility at home, or involve the Union in foreign contests.

The practice of many States in restricting the commercial intercourse with other States, and putting their productions and manufactures on the same footing with those of foreign nations, though not contrary to the federal articles, is certainly adverse to the spirit of the Union, and tends to beget retaliating regulations, not less expensive & vexatious in themselves, than they are destructive of the general harmony.

5. want of concert in matters where common interest requires it.

This defect is strongly illustrated in the state of our commercial affairs. How much has the national dignity, interest, and revenue suffered from this cause? Instances of inferior moment are the want of uniformity in the laws concerning naturalization & literary property; of provision for national seminaries, for grants of incorporation for national purposes, for canals and other works of general utility, wch. may at present be defeated by the perverseness of particular States whose concurrence is necessary."

At the same time, Madison wrote to Washington a letter with his general thoughts on the upcoming Convention. He said that "the national Government should be armed with positive and compleat authority in all cases which require uniformity; such as the regulation of trade...."

Note that Madison, in describing the "vices", considered as "aggressions on the rights of other states" many things which occurred solely within the boundaries of single states: tender laws, import duties, paper money, etc. Consistent with this, the Constitution bans these practices. This was accomplished directly in some cases (Art. I, Sec. 10) and indirectly in others (for example, Marshall held in Gibbons v. Ogden that the Congressional power to regulate "commerce among the several states" was exclusive and that states could not regulate it).

In total, the new Constitution took a great deal of "commercial" power away from the states and transferred it to Congress. That was one of the principal purposes of the Constitution.
 

The key phrase in the passage you bolded is "concerns more states than one." In the context of 1790, wheat grown by an individual farmer didn't do that. In the context of 1940, it did. The principle stays the same, the facts to which it applies differ.

No Mark. Subsistence farming is still a local activity.

I don't, by the way, reject your point that the meaning of interstate commerce can change over time. It surely has. But it's utterly stupid to argue that a farmer producing his own wheat for his own consumption on his own farm is engaging in any interstate commercial activity.

Under Wickard, a children's lemonade stand is interstate commerce.

And this isn't an academic discussion. As I mentioned, we have people serving serious sentences in jail here in California because the federal government illegitimately seized our authority to decide how to regulate people producing marijuana in the state of California for in-state consumption as a medicine. That's a pretty horrible price for them to pay (as well as for the California voters who voted for medical marijuana), all so that FDR could impose some really dumb regulations on subsistence farmers who could have been readily exempted from the agricultural adjustment act.

Finally, you also aren't wrong about the commerce power being intended to address (what we would now call) externalities and lack of concert among the states. But that's a lot different from the position you took earlier in the thread, which is that the commerce power was intended (or must be interpreted in any "republic" whether intended or not) to exnted to ANY commercial activity, even those wholly within state borders.

Again, I am not where Bart is (or Thomas is), although I would indicate that they aren't totally wrong either in that manufacture, without downstream effects in other states, wouldn't constitute commerce. Bart's position would leave the federal governemnt unable to impose child labor laws on goods crossing state lines, which can't be right.

But your position (and Wickard's) is that even if the regulation is imposed on purely intrastate activity, there's no externality at all, no need for states to act in concert, and no state interst whatsoever justifying the regulation (seriously, you can make a strong argument that imposing production limits on subsistence farmers violates the rational basis test and infringes on the protected personal autonomy of farmers), it is nonetheless a constitutional exercise of the commerce power.

So when are you going to propose federal regulation of lemonade stands?
 

So when are you going to propose federal regulation of lemonade stands?

True story: In the early 90s we had a Commerce Clause case in front of the Supreme Court. The single issue in the case was the extent of Congressional power under the Clause. The AGs of a number of states filed amicus briefs on behalf of our client, and the SG did too. The SG asked for argument time, and we of course agreed. During the argument Scalia (I believe; could have been Rehnquist) asked the SG how far the power extended. The SG responded that in his view, teenage babysitters could not be regulated. I just about had a stroke in the courtroom.

This was, btw, the Bush I SG.

The argument which I've always found most persuasive when it comes to Wickard is the enforcement problem. It's indisputable that Congress has the power to set the price of wheat sold "in" interstate commerce (whether that's wise is a whole nother question). The problem arises when it comes to enforcing that price. Practically speaking, such a regulation can't be enforced unless Congress can also control the price of wheat grown and consumed entirely inside a state.

We therefore have a situation in which actions by individuals (or by states) can undermine national policy. How do we interpret the Congressional power in such a case? To me, it's easy -- we extend the enforcement power to cover the evasion. I see it as similar to implying the power of Congress to criminalize robbing the mail.

I've heard, btw, that Wickard was a "constructed" case, i.e., that it was deliberately designed and brought for the political purpose of having the courts undo the New Deal economic regulations. Do you know if that's true? If it is, I'm not saying that such a tactic should cause anyone to change his mind -- after all, people get up cases all the time for similar purposes -- I just find it interesting.
 

The argument which I've always found most persuasive when it comes to Wickard is the enforcement problem. It's indisputable that Congress has the power to set the price of wheat sold "in" interstate commerce (whether that's wise is a whole nother question). The problem arises when it comes to enforcing that price. Practically speaking, such a regulation can't be enforced unless Congress can also control the price of wheat grown and consumed entirely inside a state.

2 points:

1. I don't necessarily buy the argument that for a national regulation to work, there needs to be no exception. How many people are going to grow wheat and sell it exclusively within state lines? That's pretty hard to do. Further, the national price set by regulation would probably affect the price charged in-state, given that wheat is a basically homogenous good.

Think about Raich v. Ashcroft. Is the government really right that a cancer patient growing her own stash undermines the entire federal marijuana regulatory scheme? Does the fact that there are exceptions that allow the usage of morphine, amphetimines, and barbituates with a prescription undermine the enforcement scheme for those drugs?

In other words, why, exactly, can't Congress simply draw an exception for those few people whose activities really don't reach into interstate commerce? I really have my doubts that ANY regulatory scheme is airtight anyway, or that drawing such an exception will undermine a federal regulation.

Further, it seems to me that we could wait and see. In other words, why not let Filburn have his exemption and see how many others claim it? If it turns out to be a lot and they start affecting the price of wheat, then you can go in based on that factual record and expand the reach of the regulation. But why not preserve federalism and force the government to show that an exception is actually needed to ensure the functionality of a national regulatory scheme?

2. It's also worth noting that one of the aspects of the Commerce Clause is that it doesn't guarantee airtight federal regulations. Again, take medical marijuana. Maybe it's true that drug prohibitionists would LIKE a regulation that makes all marijuana illegal everywhere. Maybe they can even establish that this is a good idea. But that's not the same as saying it is within the power grant. As I said, the terms of the Constitution have to mean something, and especially when you consider that the Constitution itself was a careful trade-off between state and federal power where the states gave away some powers that they had under the unworkable Articles of Confederation but insisted on retaining other powers. So we don't have a Constitution that permits universal national regulation of all activities in a particular form of commerce. That may be frustrating, but it's no more frustrating than having a Constitution that permits the death penalty or has an electoral college or grants small states disproportionate representation in the Senate.

Indeed, if I can close on one point, it would be this. One of the reasons why Wickard is so bad is precisely that it intertwines with the control that "swing states", the South, and smaller states have on the federal governemnt. It is precisely because California is denied the full weight of its population in terms of federal representation that the federal medical marijuana prohibition has come about. People in other states are more powerful than we are, and they are also very narrow-minded about some of the lifestyles that are led out here.

This plays itself out not only in the medical marijuana fight, but also in such issues as federal preemption of pollution regulations, safety laws and consumer protections. More conservative states are using the commerce clause and their disproportionate power in the federal government to shove their ideology down the throats of Californians who would like to go a different direction.

Thus, we need federalism more than ever. Not that federalism doesn't protect bad things too, or that it doesn't frustrate good federal initiatives. But it's the deal that was enshrined in the Constitution, and it's a deal that benefits liberals as well as conservatives. It needs to be respected.
 

I've already said enough, so I'll just close with 2 tangential points.

First, I personally hate the outcome in Raich. I voted for the law and I thought it was a good one. But I think Raich was correctly decided.

Second, the debate on this (not just the two of us, but everyone) has eerie overtones of the debate regarding the Stamp Act and the Townshend Acts. The colonists originally took the position that Parliament could regulate "external" matters, but not "internal" ones. They eventually abandoned the argument because they couldn't make intellectually convincing distinctions between them. Besides, "self-evident truths" sounded so much more, well, evident.
 

The argument which I've always found most persuasive when it comes to Wickard is the enforcement problem. It's indisputable that Congress has the power to set the price of wheat sold "in" interstate commerce (whether that's wise is a whole nother question). The problem arises when it comes to enforcing that price. Practically speaking, such a regulation can't be enforced unless Congress can also control the price of wheat grown and consumed entirely inside a state.

I don't think it's true that NO line can be drawn. Like many lines in the law ("reasonable" searches,
"explaining" a contract with parol evidence vs. "contradicting" it, etc.), it's not a bright line. But you can nonetheless draw one.

Further, though, let's assume you are right and you can't draw a line. What then, do we do about the inconvenient fact that the text of the Constitution (and indeed, the original federalist bargain that it was based on) insists that such a line be drawn?

It seems to me that at the very least honoring the commerce clause of the Constitution requires that we ATTEMPT to draw such a line. If, as I said, we actually discover that there's no way to maintain a particular national regulation without exempting purely local activity, that becomes a different case from Wickard. But if you simply buy the assertion of the federal government, then the commerce clause's limitation on the grant of Congressional power has been written out of the Constitution.

And I honestly don't think the Wickard or Raich courts were trying. Do you really, really, truly in your heart believe that the entire marijuana prohibition scheme gets destroyed if Angel Raich gets her pot? I don't. Nor do I believe that allowing subsistence farmers to farm rather than forcing them to buy grain destroys the farm price supports system.

I certainly don't believe it just because the Roosevelt Administration said so. This was the same administration that swore up and down that there was evidence that Japanese and Japanese-Americans on the West Coast were security risks and said that only a mass, no individualized consideration evacuation and internment would protect the public safety.
 

Well gee Dilan,

1) It is entirely obvious that the PRIMARY motivation for federalism and a number of other glaring defects in the Constitution was to protect commerce in human slaves.

2) It is equally obvious that racists, religious bigots, and greedy rich people have been using such things to oppress and tyrannize other people ever since.
 

Just when I think I'm out, they pull me back in.

Like many lines in the law ("reasonable" searches,
"explaining" a contract with parol evidence vs. "contradicting" it, etc.), it's not a bright line. But you can nonetheless draw one.

Further, though, let's assume you are right and you can't draw a line. What then, do we do about the inconvenient fact that the text of the Constitution (and indeed, the original federalist bargain that it was based on) insists that such a line be drawn?

In my view, we solve a number of problems by leaving it to Congress to enforce the terms of the commerce clause. It's the only way that works. If we let the courts do it, the counter-majoritarian problem is immense (just look at how much trouble the Court had coming up with definitions of terms like "commerce" in the 70 years before 1937, and consider the volume of business there would be). By letting Congress do it, we let representatives from each state bargain among themselves. Especially in cases like wheat, which is extremely widespread, there's no reason to think that the national majority will be unfair.

It is entirely obvious that the PRIMARY motivation for federalism and a number of other glaring defects in the Constitution was to protect commerce in human slaves.

This is, unfortunately, all too true. It's also true that the principal use of states rights after the Civil War was to protect segregation. I've always liked this quote from the old Negro Leagues star James "Cool Papa" Bell:

"In the Negro Leagues the audience was mixed but mostly colored. Even down South there were some white people at the games. When we played the Birmingham Black Barons in their park, there were always lots of whites in the crowd, but they were separated by a rope. You could be sitting right next to a white man, but that rope was always there. That was the system they had in those days. That’s what they called states’ rights. States’ rights doesn’t mean much to the Negro. You don’t get justice with states’ rights. Which is a bad thing to happen."

There are good theoretical reasons against it also (Federalist 10), but its hard to beat the emotional punch of a quote like that.
 

1. The problem with leaving it to Congress (besides the fact that there is no text or history that shows that anyone believed that commerce clause questions were political questions exempt from judicial review) is the evidence is that Congress can't be trusted. Congress didn't respect Filburn's right to feed his family and his hogs. Congress didn't respect Angel Reich's right to self-medicate. Congress preempts state economic regulations willy-nilly to protect big business at the expense of consumers.

Plus, thanks to the Electoral College, the Senate, and Presidential primaries, the federal government is dominated by people who don't give a crap what Californians (or residents of other big, urban, cosmopolitan states) think.

2. I have a couple of observations about slavery and Jim Crow. First, just because federalism can be used for bad ends doesn't mean it's a bad principle. You can also impose slavery at the national level (see, e.g., Stalin's Soviet Union). That's why we have strong rights in our Constitution which are federally enforceable. And we abolished slavery and Jim Crow on the federal level.

But federalism also protects against tyranny imposed by the federal government. You guys may not think it is such a bad thing that the federal government is imprisoning people to ensure that California's cancer patients suffer. I think it is horrifying. And it occurs because contrary to Mark Field's statement, in fact regional interests do dominate the federal government and use that power to stomp on Californians and their lifestyle.

The other thing I would say about Jim Crow and slavery is that we removed those portions of our laws while keeping the commerce clause. So eviscerating the commerce clause because, in the past, it could have been put to a purpose that it no longer can be put to is not persuasive.
 

Dilan,

What I think is that the drug laws are:

1) Fundamentally tyrannical.

2) Absolutely stupid.

And it's got nothing to do with federalism.
 

The problem with leaving it to Congress is the evidence is that Congress can't be trusted.

There is plenty of evidence that no completely trustworthy political structure has ever been discovered. Tinkering with structures can only take us so far. Eventually we have to rely on debate and persuasion. My belief is that debate and persuasion will eventually win the result you desire vis-a-vis marijuana laws.
 

Richard Primus' "Limits of Interprtivism," available via SSRN:

http://ssrn.com/abstract=1318640

lists an interesting table at the beginning of the article:

Introduction
I. Interpretivism and Textualism
II. Textualism and Rules
III. Textualism and Originalism
IV. Originalism and Constraint
V. Originalism and Tradition
Conclusion

This 19 page article appears in Vol 32, No. 1 of the Harvard Journal of Law & Public Policy. I don't expect that it will resolve disputes; but it may raise some doubts and levels of debate. Primus' closing paragraph begins:

"Constitutional law is not that easy."
 

Matt:

The point that legislatures can't be trusted is why we have judicial review. And it's why the political question doctrine is very narrow and restricted to disputes that are textually committed in the Constitution to other branches than the judiciary.

So, saying that there's no such thing as a trustworthy branch of government misses the point that in our system, the judiciary is supposed to be around when Congress oversteps, including when it oversteps its authority under the Commerce Clause.

Shaq:

I agree that constitutional interpretation is not easy. Indeed, my biggest, most fundamental problem with conservatives is that they pretend it is. People like Scalia are really simpletons who assume that they are right and the rest of the world is wrong because they don't understand the nuances and complexities of what they are doing.

But saying interpretation isn't easy is not the same thing as saying that it's impossible to determine that things are indeed in the Constitution. The limitation on Congress' commerce power to commerce "among the states" is in the text and was a fundamental part of the original bargain. Interpretations that say that it shouldn't be enforced or that it doesn't really limit Congress' power to commerce among the states are therefore self-evidently wrong. The difficult question is where one draws the line, but the easy question is that Congress has no power to regulate purely local activities.
 

The problem with leaving it to Congress, is that it strips that portion of the Constitution of it's status as law. You know "law", it's rules you have to obey even if you don't LIKE them?

The Constitution is the law which binds the federal government, even as it's statutes bind the citizenry. If it's up to Congress whether they have to comply with any given part of the Constitution, it's not law anymore, it's just a list of helpful hints to be ignored at whim.

You don't want to have a constitution, say so. Don't resort to rules of 'interpretation' which strip that constitution of it's effective status as law without acknowledging what has taken place.
 

The problem with leaving it to Congress, is that it strips that portion of the Constitution of it's status as law. You know "law", it's rules you have to obey even if you don't LIKE them?

If the original intent was that Congress should be the body to enforce the limits of the clause, do you still feel that way?

If you want government by judiciary, just treat the commerce clause the same way we treat, say, equal protection law. There is no clause in the Constitution which would require more judicial intervention than the commerce clause. We could save a lot of money dispensing with Congress altogether.
 

Sweet is the memory of distant friends! Like the mellow rays of the departing sun, it falls tenderly, yet sadly, on the heart.
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