Dissents in Morrison

Holding: page 164: 

"With these principles underlying our Commerce Clause jurisprudence as reference points, the proper resolution of the present cases is clear. Gender-motivated crimes of violence  are not, in any sense of the phrase, economic activity. While we need not adopt a categorical rule  against aggregating the effects of any noneconomic activity in order to decide these cases, thus  far in our Nation’s history our cases have upheld Commerce Clause  regulation  of  intrastate   activity  only  where  that  activity  is  economic in nature. . . ."

Souter dissent page 168:

"politics, not judicial review, should mediate between state and national   interests   as   the   strength   and   legislative   jurisdiction   of   the   National  Government   inevitably   increased   through   the   expected   growth   of   the   national economy. . . ."

Breyer dissent page 171:

"Since judges cannot change the world, the “defect” means that, within the bounds of the rational, Congress, not the courts, must remain primarily responsible for striking the  appropriate state/federal balance. . . . Moreover, Congress often can better reflect state concerns for autonomy in the details of sophisticated statutory schemes than can the  judiciary, which cannot easily gather the relevant facts and which must apply more general legal rules and categories. . . ."

 

What are your thoughts? If federalism is really about protecting liberty from concentrated power, who is best able to protect us from that power? Congress which is wielding that power? Or courts applying constitutional safeguards?

National Power versus 10th Amendment

The 10th Amendment provides: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."   

In my opinion, the 10th Amendment is the source of more real liberty than the rest of the Bill of Rights added together. It protects the right of the people in the states to be governed locally (by their friends and neighbors in the state legislature) rather than remotely in the District of Columbia by Congress and the deep bureaucratic state.

 I want to make sure that you all understand what we talked about yesterday when I observed that those who argue for broad interpretations of federal power create a zero sum game between the national government and the reserved powers and liberties of we the people in the states under the 10^th Amendment. To add power to the national government under an expansive interpretation of the Necessary and Proper Clause or the Commerce Clause is to subtract the power and liberty protected the 10th Amendment.

So, suppose you were arguing on behalf of the national government for an expansive interpretation of say the Commerce Clause, and a Justice asked you "Counsel, how would this interpretation affect the scope of the 10th Amendment?" 

What would your answer be? 

Now suppose you were arguing against the expansion of national power. Now what would your answer be?

Newsweek Article on Court Packing

 Link

Money Excerpt:

 President Franklin D. Roosevelt tried to pack the Court in 1937. Many in his own party fiercely opposed him, including some who had been loyal supporters of the New Deal. One of them, Montana senator Burton K. Wheeler, declared to the president, "Create now a political court to echo the ideas of the executive and you have created a weapon...that can extinguish your right of liberty, of speech, of thought, of action, and of religion."

 

 

Assignments for Week Five (6): September 25-27

 

--Casebook p. 115-136 

Video:

https://unl.yuja.com/V/Video?v=6828195&node=29033625&a=97147432&autoplay=1

 

--Casebook p. 136-160; Wickard (link)  

Video:

https://unl.yuja.com/V/Video?v=6828498&node=29033955&a=148041785&autoplay=1

 

--Casebook p. 160-183

Video:

https://unl.yuja.com/V/Video?v=6827997&node=29033388&a=6006489&autoplay=1

The impact of Wickard on the 10th Amendment and Reserved Powers

                                             Schecter & Carter Coal

Federal Power --------     ----------------------------------------------------------------------State Power (10A)
                                   10                                                                                                   90





                                                             Wickard
Federal Power ---------------------------------------------------------------------   ----------State Power (10A)
                                                                                                                99.5                  0.5


     
Notice how as Federal enumerated power increases, the reserved powers of the states shrink. Every time the Court allows the Commerce power of Congress to increase, the 10th Amendment is diminished accordingly. This is why I call it the Incredibly Shrinking Tenth Amendment. Madison wept. And I weep!   

     

The modern approach to the Commerce Clause has been stated by the Court (in Hodel v Indiana) as follows:

“A court may invalidate legislation enacted under the Commerce Clause only it if is clear that there is no rational basis for a congressional finding that the regulated activity affects interstate commerce...."

                                                                                           

Recent Poll on Support For Wickard

A recent Rasmussen poll found that only 7% of the public supports the reasoning of Wickard. (link)

Although the poll itself is only available to subcribers, Rasmussen did post the following explanation:

Tuesday, July 10, 2012

In 1942, the U.S. Supreme Court ruled that the federal government could regulate how much wheat a farmer could grow on his own property for his own use. That ruling dramatically enhanced the power of the federal government by making almost all economic activity subject to federal regulation as “interstate commerce." However, voters today overwhelmingly reject that underlying argument. 

Our law library was able to get a little more clarification from the pollster:

Only 7% Support Legal Reasoning That Led to Greater Government Regulation

Tuesday, July 10, 2012

In 1942, the U.S. Supreme Court ruled that the federal government could regulate how much wheat a farmer could grow on his own property for his own use. That ruling dramatically enhanced the power of the federal government by making almost all economic activity subject to federal regulation as "interstate commerce." However, voters today overwhelmingly reject that underlying argument.

If a farmer grows wheat on his own land for his own use, just seven percent (7%) of Likely U.S. Voters believe the federal government should be able to limit and regulate how much he can grow. A new Rasmussen Reports national telephone survey finds that 86% disagree and reject this federal regulatory authority....

In 1938, Congress passed a law limiting how much area farmers could devote to wheat production. The purpose of the law was to keep wheat prices higher for farmers, but its constitutionality was challenged by a farmer named Roscoe Filburn. A District Court upheld Filburn's challenge, but the Supreme Court's 1942 decision overruled it in a case known as Wickard v. Filburn . Filburn was ordered to destroy his crops and pay a fine.

Today, only five percent (5%) believe the federal government should be able to keep prices high by preventing others from growing farm products on their own land. Eighty-eight percent (88%) disagree.


This national survey of 1,000 U.S. Likely Voters was conducted on July 7-8, 2012 by Rasmussen Reports. The margin of sampling error is +/- 3 percentage points with a 95% level of confidence....

Rasmussen Reports

Cooley Takeaway

 

Takeaway: Here is how one commentator summarizes the so-called “Cooley Rule:”

“The Cooley doctrine looks to the nature of the subject of the challenged regulation as the crucial factor in determining its validity. The doctrine of selective exclusiveness [of national power to regulate commerce] states that, if the item is such that national uniformity is necessitated, then Congressional power is exclusive. If, on the other hand, the item is a matter of a peculiarly local concern…allowing a diversity of treatment, then states may regulate the area, in the absence of congressional preemption.” [Nowak & Rotunda, at 177-178]