Patterico's Pontifications

11/18/2011

Reducing Judge Silberman’s Interpretation of the Term “Regulate” to Absurdity

Filed under: General — Aaron Worthing @ 8:23 am



[Guest post by Aaron Worthing.  Follow me by Twitter @AaronWorthing.]

As I said on John Smart’s show the other day, I have not been paying as much attention to the different opinions coming down in the various Obamacare cases ever since we had a split in the circuits.  That is because at that point, I came to believe that Supreme Court review was all but guaranteed, and subsequent events have vindicated that belief.

But in the D.C. Circuit version of the case, one part did stick in my craw a bit, and I thought I would take a moment to address it.  One of the most basic arguments against the mandate goes something like this.  The Commerce Clause says that

[t]he Congress shall have Power… [t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

That is found in Article I, Section 8, Paragraph 3.  What opponents of  Obamacare’s mandate have said (including myself) is that this grants only the power to regulate commerce that already exists and not to create it.  But, Judge Silberman writes for the majority in the D.C. Circuit Obamacare case that this is an incorrect reading of the language:

We look first to the text of the Constitution.  Article I, § 8, cl. 3, states: “The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”  (emphasis added).  At the time the Constitution was fashioned, to “regulate” meant, as it does now, “[t]o adjust by rule or method,” as well as “[t]o direct.”  To “direct,” in turn, included “[t]o prescribe certain measure[s]; to mark out a certain course,” and “[t]o order; to command.”  In other words, to “regulate” can mean to require action, and nothing in the definition appears to limit that power only to those already active in relation to an interstate market.  Nor was the term “commerce” limited to only existing commerce.  There is therefore no textual support for appellants’ argument.

First, I think that is a facile reading of those definitions.  Ordinarily to direct a thing is to control it but not to create.  For instance, when a police officer is told by his supervisor to “direct” traffic, we don’t take that as a power to create traffic, only to channel the flow that is already there.

The other reason why this reading is shallow is that it fails to recognize how that interpretation applies to the other words of that provision of the Constitution.  And to a certain extent this is a product of how modern Commerce Clause doctrine has become divorced from the text.  Every lawyer will tell you that the phrase “commerce… among the several states” means that the Congress can only regulate interstate commerce—that is, commerce between states.  Commerce wholly within a state, intrastate commerce, cannot be touched.  The same lawyers will also tell you that the Supreme Court, however, has completely ignored this clear textual command since the 1930’s.  I think the best explanation is that the Court was bullied into making bad precedents by Franklin Roosevelt’s court-packing scheme.  The official explanation in the case law is that any commercial activity that affects interstate commerce can be reached under the Necessary and Proper Clause.  But that logic doesn’t hold up to scrutiny, because the upshot of it is to erase a distinction written into the Constitution itself between intrastate commerce and interstate commerce.  What was the point of inserting that phrase “among the several states” if that distinction was going to be swept away by the Necessary and Proper Clause?

(Indeed, it is a principle of statutory interpretation that one should “[a]void interpreting a provision in a way that would render other provisions of the Act superfluous or unnecessary.”*  That will be important again in a minute.)

Another less feeble explanation for excising the interstate requirement from the interstate commerce clause is to argue that by advances in technology the distinction was erased.  Now there is some truth to that.  When you walk into a Target store, only most a small percentage of the items on the shelves are made within the same state you are living in.  Indeed now and then it is pointed out that many items stamped with the “Made in the U.S.A.” logo in fact are “made” to a significant extent in other countries with debates about how much a thing should have to actually have been made in America to earn that logo.  The reality is that our trade is far more interstate and indeed international than it ever has been before.  But that does not justify throwing out the distinction altogether.

Still, because of modern Supreme Court precedent, it is easy to forget that in the minds of the founders there is such a thing as intrastate commerce that cannot be touched by the Federal Government.  And if the word “regulate” can be read to include creation in relation to the “commerce” element of the interstate commerce clause, then why can’t it also be read to allow the Federal Government to create the “interstate” aspect as well?  That is, if the word regulate means that the government can force you to buy health insurance (or broccoli), why can’t it say to a person engaged in intrastate commerce that they must take their products across state lines?  That is the direct implication of Silberman’s reading of the term “regulate.”  And this interpretation is particularly galling if you buy the “technological” justification for the expansion of federal commerce power.  If you believe that in 1789 transportation was so difficult that most commerce was more intrastate than it is now, then Judge Silberman’s reading would have allowed the federal government to force a person to take their goods across state lines at a time when the trip was much more difficult than it is today.

And to reduce his interpretation of the term “regulate” to even greater absurdity, certainly we would agree that if the purchase of Health Insurance is commerce, surely building a car and selling it is also commerce, right?  The precedents from the modern Supreme Court are especially clear on this point.  So by Judge Silberman’s interpretation of the term “regulate” the Commerce clause grants Congress the power to take a person who is not working, or working in another industry, and force that person to work in the manufacture of automobiles.  Now anyone casually familiar with the Constitution would reasonably pipe up and say, “but wouldn’t that be involuntary servitude in violation of the Thirteenth Amendment?”  And I would say it would be, but the Thirteenth Amendment was only ratified in 1865.  So is it Silberman’s position that in 1864 a random free citizen could be conscripted into a job he didn’t want under the Commerce Clause?

And all of this becomes even more absurd when we also remember that the term “regulate” applies equally to interstate and international commerce.  Again, this is where our reading of the text can be warped by modern precedent, for the Court has never read the international commerce clause half as broadly as the interstate commerce clause.  For instance, in Wickard v. Filburn a wheat farmer was told that he could be prevented from growing wheat for his own personal consumption on the theory that if he did not grow his own wheat he would be forced to buy it from others, and thus his growing of wheat affected interstate commerce.  But no court has held that we could therefore prevent a man living in the Ukraine from growing wheat for his own use because it will affect international commerce with America.  And does anyone believe that our government can command a man in China to buy a certain product?  (Indeed, if Obamacare is upheld, I have a delightfully simple way to solve the problem with our chronic trade deficit: just pass a law requiring everyone in the world to buy more American products.)  But so I suppose Silberman would be forced to claim that to “regulate” meant one thing internationally, and another domestically./

So in short, Judge Silberman’s interpretation of the term “regulate” would lead to the absurd results of forcing a person to travel across state lines against their will, to work at a job not of their own choosing (prior to ratification of the Thirteenth Amendment) and would allow us to command citizens in other countries to buy American.  Although that last possibility definitely has its appeal, it is nonetheless an absurd definition of the term “regulate” and therefore, it is wrong.  And the travesty of it all is that our discussion of the Commerce Clause has become so divorced from the original text and what it plainly meant, that it is hard for modern minds to even recognize the absurdity of Silberman’s interpretation.

And there is one more problem.  It is presumed in the construction of language in the Constitution (or any statute) that the same word has the same meaning in all contexts.  So let me call your attention to Article I, Section 8, Paragraph 14:

The Congress shall have Power… [t]o make Rules for the Government and Regulation of the land and naval Forces;

Now at first glance it seems reasonable to interpret the term “regulation” as allowing for creation.  Certainly Congress has the right to create a military, right?  But here’s the thing; in the two paragraphs before it, the Constitution makes specific reference to that power:

The Congress shall have Power… [t]o raise and support Armies; … [t]o provide and maintain a Navy;

So if the word “regulate” meant to “create” then there would be no need to specify the right to raise an army or provide a navy.  It would be implicit in the term “regulation;” indicating that the founders did not believe that the word “regulate” included creation.  And as I said before, the courts avoid interpreting a provision of the constitution or a statute in a way that renders other parts superfluous or unnecessary.Besides, if regulate meant to create, then what exactly is a well-regulated militia?

No, Judge Silberman, far from there being “no textual support” for the claim that to regulate is not the same as creating, on balance, the opponents of Obamacare have the better textual argument—but particularly if we remember what the Constitution actually says, and not merely what the Supreme Court has said about it.

—————————————-

* That phrase is from William Esckridge, Jr. & Phillip Frickey, The Supreme Court, 1993 Term—Forward: Law as Equilibrium, 108 Harv. L. Review. 26, 97-108 (1994).  I wrote out the full citation because that part of the article is a classic, listing many of the canons of textual interpretation followed by the Supreme Court along with cases applying them.  Bluntly I recommend that every working lawyer keep a copy of it on his desk.

—————————————

Also, you might have noticed I have deployed a similar argument on conscription in the past.  But in that case we were talking about the reach of the necessary and proper clause, so it is similar, but not completely repetitive.

[Posted and authored by Aaron Worthing.]

134 Responses to “Reducing Judge Silberman’s Interpretation of the Term “Regulate” to Absurdity”

  1. “Now anyone casually familiar with the Constitution would reasonably pipe up and say, “but wouldn’t that be involuntary servitude in violation of the Thirteenth Amendment?””

    Well, since we are talking about absurd interpretations:
    Yes, that is certainly a legitimate question.
    Of course Congress could pass a law making it illegal to “affect” the economy by not filling particular jobs.
    A person could then be convicted of this new crime, let’s call it “Wrecking”, because he refuses to leave his current job, or lack thereof, and take a job Congress has declared “essential”.
    Once convicted of this “Wrecking”, his sentence to involuntary servitude in a job he does not want, in a State he does not want to travel to, would be fully Constitutional.
    “Problem” solved!

    Sam (2fdd3d)

  2. The power to regulate includes the power to compel to purchase. Duh.

    JD (5362b6)

  3. Silberman’s interpretation is absurd. It’s so obviously inconsistent with the plain meaning of the Constitution as to put Silberman in direct opposition to the very words he pretends to explain.

    Actually, Silberman’s interpretation is every bit as absurd as it is dyslexic.

    ropelight (4b1529)

  4. Another less feeble explanation for excising the interstate requirement from the interstate commerce clause is to argue that by advances in technology the distinction was erased. Now there is some truth to that. When you walk into a Target store, only most a small percentage of the items on the shelves are made within the same state you are living in.

    I don’t understand why that matters. So long as I’m in NY, the store is in NY, and the goods I’m buying are in NY, how am I engaging in interstate commerce? What difference does it make where the goods originally came from? The interstate commerce happened when they were imported into NY; I concede Congress’s right to regulate that transaction, but not what happens to them afterwards. I don’t see anything in the commerce clause that authorises Congress to regulate anything that affects interstate commerce.

    Even in 1788, everything ultimately affected interstate and international commerce. I suspect that a greater portion of the USA’s GDP was in international commerce in 1788 than now. The USA was almost exclusively a primary producer; all secondary goods were imported, and paid for by the export of its primary industry. If the international commerce clause meant what the Supreme Court has said it means then George Washington could have imposed almost totalitarian rule had he been so inclined.

    But no court has held that we could therefore prevent a man living in the Ukraine from growing wheat for his own use because it will affect international commerce with America. And does anyone believe that our government can command a man in China to buy a certain product?

    Those people are not subject to USA jurisdiction. Even if US law were to make demands of them, they would be free to ignore those demands. BTW I’m glad to see people still saying “the Ukraine”, and not bowing to the Ukranian government’s attempt to dictate our language.

    Milhouse (ea66e3)

  5. The problem is the overreliance on the Commerce Clause to justify every form of government intrusion, inverts the reason it was put in place,
    ‘to regulate interstate commerce’

    jon corzine (ef1619)

  6. Not only does the power to regulate interstate and international commerce not include the power to require it, I don’t believe it includes the power to prohibit it either. As far as I can see, Congress’s power is merely to regulate those transactions that are already happening; to dictate the time, place, and manner in which those transactions take place. But it may no more forbid, for instance, interstate trade in marijuana, alcohol, or loose women, than it may require it.

    Milhouse (ea66e3)

  7. I think the problem with Silberman’s linguistic analysis is where he looks up “regulate” in the dictionary, and then looks up one of the words used in that definition and incorporates that into the definition. Yes, “regulate” can mean “direct”, and “direct” can mean to order something to happen that wasn’t going to. But that’s not the sense in which “direct” is a definition of “regulate”.

    Milhouse (ea66e3)

  8. Your readers should know, if they don’t already, that Silberman, a Reagan appointee, is one of the most conservative judges in the circuit courts. And (in case it’s not obvious), his approach to constitutional interpretation is one of strict construction.

    Your post unwittingly gives strength to those who think “textualism” is bosh. Given that reasonable minds can differ on the meaning of words (“regulate”, in this case), there really is no such thing as “reading the text of the Constitution and applying it”. At least, not at this level with the hard cases. And the fact that you take issue with Silberman’s dictionary definition of “regulate” just shows that.

    Furthermore, I find it amusing that you write sentences like:

    That is, if the word regulate means that the government can force you to buy health insurance (or broccoli), why can’t it say to a person engaged in intrastate commerce that they must take their products across state lines? That is the direct implication of Silberman’s reading of the term “regulate.”

    Pretty odd for a strict constructionist to look at the implications of decision. Isn’t the point of strict constructionism to interpret the Constitution as written, and let the chips fall where they may?

    But to my main point….

    But that logic doesn’t hold up to scrutiny, because the upshot of it is to erase a distinction written into the Constitution itself between intrastate commerce and interstate commerce. What was the point of inserting that phrase “among the several states” if that distinction was going to be swept away by the Necessary and Proper Clause?

    That argument works both ways, though. What is the point of the Necessary and Proper Clause if it guts the power given to Congress to regulate interstate commerce?

    After all, most regulations on interstate commerce are going to have some impact on intrastate commerce. And you seem to be drawing a bright line between the two. So basically, you are trying to make the N&P Clause act as a limitation of previously enumerated congressional powers, when clearly, it was meant to expand them.

    Kman (5576bf)

  9. rope

    > Actually, Silberman’s interpretation is every bit as absurd as it is dyslexic.

    um as a person who actually has dyslexia…

    Aaron Worthing (e7d72e)

  10. I propose that Silberman’s interpretation (and most recent interpretations) of the commerce clause is fundamentally unsupportable and ridiculous.

    To wit: the commerce clause is phrased identically with respect to the several states and foreign nations. Therefore, if it grants the US Government the power to force me to purchase a product (or eat brocolli), it also grants the US Government the power to force all Egyptians, Syrians, Iranians, and Pakistanis to purchase (or eat) pork.

    QED

    donb (19f50e)

  11. donb, see my earlier comment #4. Egyptians, Syrians, Iranians, and Pakistanis are not subject to USA law. They don’t have to care what USA law says about them.

    Milhouse (ea66e3)

  12. Regulate = compel to purchase. Can’t you get that through your daft heads?!

    JD (bc52c1)

  13. On page 33 of his decision, Silberman recognizes his ruling allows for Congress to exercise limitless power and calls this “troubling” but felt required to defer to Congress’s findings about the nature of health care.

    It reminded me of Justice Holmes’ extreme view of judicial restraint as when he wrote, “[i]f my fellow citizens want to go to hell, I will help them.”

    Crispian (b586f4)

  14. This conflict demonstrates how far current legal “thought” has diverged from the what the Founder’s believed, and wrote.
    The Commerce Clause was written in response to the internal tariffs created by the Several States under the Articles of Confederation that were protectionist in nature, and the varied tariffs created by those States levied against international trade:
    It was to bring uniformity to this area of economic life in the new, fledgling country.
    Silberman should be impeached for incompetence if he refuses to retract this opinion and apologize to the American Public for its issuance.
    Only by such an act, can Congress bring some discipline upon the various courts that it has created (Art-1, Sec-8/8).
    Such a demonstration of a demand for excellence within the judiciary is long overdue.

    AD-RtR/OS! (e69ef4)

  15. 14- … more …

    I should have written: “…should be impeached and removed from the bench for…”

    AD-RtR/OS! (e69ef4)

  16. Regulate = compel to purchase. Can’t you get that through your daft heads?!

    Comment by JD — 11/18/2011 @ 10:23 am

    Isn’t it obvious that this is exactly what the founding fathers had in mind? You can tell because it lines up so well with the bill of rights.

    Government can force me to buy things, huge things that deal with my most private affairs like health care. It’s not like there’s some kind of concept of privacy or autonomy implicit to the concept of ordered liberty, found within the penumbras of the constitution.

    Oh wait, what? I’m confused.

    Dustin (cb3719)

  17. Dustin, your confusion pales in comparison to Silberman’s.
    All of our Federal judges should be as confused as you are.

    AD-RtR/OS! (e69ef4)

  18. Kman

    > Your post unwittingly gives strength to those who think “textualism” is bosh. Given that reasonable minds can differ on the meaning of words (“regulate”, in this case), there really is no such thing as “reading the text of the Constitution and applying it”.

    Lol, so don’t follow the constitution and just make crap up! Just because people might disagree about what the words mean doesn’t mean that you shouldn’t try to honestly figure out what it means and apply it as written. And its really kind of a tired argument you are making: “oh, you can’t figure out what the constitution means with 100% accuracy and 100% agreement by everyone therefore you should just throw the f—ing thing out entirely and just start making sh-t up.”

    > Pretty odd for a strict constructionist to look at the implications of decision.

    Not at all. It is a common method in the interpretation of the law to avoid absurd results. Are you sure you went to law school?

    I mean suppose someone sues in Federal Court challenging the election of every democrat in their state, saying that the Guarantee Clause promises each state a republican form of government, therefore only republicans can legally hold office. There are lots of good reasons to laugh that argument out the door, not the least being that it is an absurd reading of the language.

    The textualists have never argued that you pay absolutely no attention to context or implication. You would reduce the doctrine itself to an absurdity, claiming that the second amendment guarantee of the right to bear arms refers to limbs and not weapons, or that the prohibition in the third amendment means you are not allowed to feed a soldier into a machine for making quarters.

    All you did was murder a helpless straw man. What did he ever do to you?

    > And you seem to be drawing a bright line between the two. So basically, you are trying to make the N&P Clause act as a limitation of previously enumerated congressional powers, when clearly, it was meant to expand them.

    No, you are failing reading comp or logic—not sure which. I am saying that by itself the commerce clause has implicit limitations, which cannot be obliterated by the N&P clause. So in my argument the N&P is adding less to it, but also isn’t taking away from it either. I believe in fact that the N&P clause can allow for some intrastate commerce to be regulated incidentally to the power to regulate interstate commerce, but as it stand right now, the Supreme Court thinks all commerce can be regulated and that is plainly against the meaning of the constitution.

    Again, why would the framers put this limitation on Congress’s power in one clause and then obliterate it in another clause? it is classic textual analysis to assume that framers did not put words in idly. And if you actually learned to see things from other people’s point of view—even if you disagree with them—you would understand that. You must be a remarkably poor lawyer and actor given your inability to do so even slightly.

    Aaron Worthing (e7d72e)

  19. Kman, as a proponent of original intent rather than strict constructionalism, all well and good.

    But, here’s the nub of it all: Silberman’s opinion essentially means Congress has unlimited power. (If there are any limits left, please clue us in.). In other words, the enumerated powers in Article I Section 8 are rendered superfluous — essentially unenumerated. Care to outline the manner of interpretation that squares with this? And, attach a label to it?

    foxbat (b6c9b5)

  20. Comprehension has never been part of the kmart syllabus.

    AD-RtR/OS! (e69ef4)

  21. foxbat

    kman is not an original intent guy. he is a “let the judges make up whatever sh-t they want and i will support it as long as it is a liberal outcome” kind of guy.

    He has been on record saying that the constitution is whatever the SC thinks it is. which makes you wonder how he can then criticize a SC decision…

    Aaron Worthing (e7d72e)

  22. AW, check your email!

    AD-RtR/OS! (e69ef4)

  23. Ad

    thanks. it can be confusing going intra- inter- intra- inter- like that.

    Aaron Worthing (e7d72e)

  24. Lol, so don’t follow the constitution and just make crap up! Just because people might disagree about what the words mean doesn’t mean that you shouldn’t try to honestly figure out what it means and apply it as written.

    Disagree with his interpretation all you like, but I don’t think he was being “dishonest” or “making crap up”. He provided support for his interpretation.

    Me: Pretty odd for a strict constructionist to look at the implications of decision.

    Not at all. It is a common method in the interpretation of the law to avoid absurd results.

    For statutes, perhaps. But not in the constitutional context.

    And (unlike the examples you give) the result here isn’t “absurd” — you just don’t like it.

    Again, why would the framers put this limitation on Congress’s power in one clause and then obliterate it in another clause?

    You and others have already touched upon this. At the time of the framing of the Constitution, you could have purely intrastate commerce that did not touch upon interstate commerce. The line was far more bright, particularly in a society where commerce was much more agarian. Put another way, you didn’t have much by way of industries, which are typically (if not definitionally) interstate in nature. (Those came about during the aptly named Industrial Revolution). The framers wrote what they wrote for a different world.

    The simple answer is that the framers didn’t envision the mostly interstate industrial world that was to come. If they did, they may have wrote the commerce clause differently (or the N&P Clause). But at the time, the N&P Clause wasn’t an “obliteration” of the limitation of the Commerce Clause (to answer your question).

    So the question then becomes…. Do we interpret the Constitution differently in light of the massive shifts in commerce between 1787 and 2012? No, says the textualist; you just look to the language the framer used. Congress, everyone concedes, can regulate the healthcare industry. Without the individual mandate, Congress cannot make the changes that it is constitutionally empowered to make; therefore, the individual mandate is necessary and proper. That’s essentially what Silberman writes. You don’t even need to get into the weeds of Wickard v. Filburn.

    Are the results “absurd” from the perspective of what the framers would have wanted? I don’t know and neither do you.

    Kman (5576bf)

  25. Aaron, I thought as much.

    Too bad. I thought Kman had some kickass legal theory about how the enumerated powers are superseded by penumbras and emanations. Oh well.

    foxbat (b6c9b5)

  26. Foxbat:

    But, here’s the nub of it all: Silberman’s opinion essentially means Congress has unlimited power. (If there are any limits left, please clue us in.).

    Well, the Supreme Court has struck down statutes as being overreaching under the Commerce Clause (Lopez and Morrison cases). So clearly there are still limits on congressional power.

    But to answer a related concern: Does this mean that Congress can compel me to buy a Big Mac in order to prop up the hamburger industry?

    I think it can, constitutionally. And I think that is troubling (and it troubled Silberman, too).

    But I think the Constitution limits that absurd possibility in that it allows for us to re-elect our representatives every X years. So even though there is no legal prohibition, there is at least a systemic buffer to congressional overreaching within the Constitution. And I have little patience with “the sky is falling” arguments that such a thing is likely to happen. The health industry, unlike any other industry, is an industry with which we are virtually guaranteed to have some “commerce” with at some point in our lives.

    Kman (5576bf)

  27. You know Kman doesn’t have time to mention to us peons what he thinks.

    DohBiden (ef98f0)

  28. At the time of the framing of the Constitution, you could have purely intrastate commerce that did not touch upon interstate commerce. The line was far more bright, particularly in a society where commerce was much more agarian

    Bulldust. What do you think happened to most of what America produced? Do you think it was consumed within the same state?!

    Milhouse (ea66e3)

  29. Congress, everyone concedes, can regulate the healthcare industry.

    I don’t concede that.

    Milhouse (ea66e3)

  30. For instance, in Wickard v. Filburn a wheat farmer was told that he could be prevented from growing wheat for his own personal consumption on the theory that if he did not grow his own wheat he would be forced to buy it from others, and thus his growing of wheat affected interstate commerce.

    .

    I am going to quible slightly with you comment regarding Filburn/Wickard. I believe based on my numerous reading of wickard is that the court only held that he was limited to how much wheat he could grow under the act. The language in the case did not say he could not grow wheat to feed his family. Unfortunately, subsequent courts have interpreted the holding to say the Commerce clause could limited the wheat grown to feed his own family. See Silberman’s statement at oral arguments.

    This incorrect believe and misconstruction of the actual holding is partly due to the terminology used in the opinion (such as home-grown) which was unique to the period and unique to the local/regional dialect of Jackson. Filburn was alloted 11 acres to grow wheat, but planted 23 acres of wheat which was used to feed hiscattle/dairy operations with a small portion used to feed the family. Because the amount of wheat used to feed the family was trivial in comparison to the extra 11 acres of wheat grown, the portion grown for the family was not even addressed.

    The second unfortunate item is that scalia apparantly believes that wickard does apply to the wheat grown for personal use. See Raich

    Joe-Dalals (5e0a70)

  31. I believe based on my numerous reading of wickard is that the court only held that he was limited to how much wheat he could grow under the act. The language in the case did not say he could not grow wheat to feed his family.

    Huh? Are you saying that if Fillburn’s quota were smaller the court would have found for him? That it only found against him because his quota happened to be big enough that if he were to grind it all and make bread out of it his family could live off it? Does that mean that a constitutional quota would become unconstitutional if his wife had another baby, or that an unconstitutional one could become constitutional if one of his kids left home?!

    Milhouse (ea66e3)

  32. Everybody agrees Congress has the power to regulate automobile manufacturing, therefore they have the power to mandate the purchase of specific automobiles.

    JD (bc52c1)

  33. Joe-Dalals, you may not be aware that most people don’t eat wheat. They eat products that are made from flour which is milled from wheat. The main use for wheat on the farm is to feed livestock, which is what Fillburn was doing with it. That is personal use. How can you possibly distinguish feeding his cows from feeding his family? How is one more like interstate commerce than the other?

    Milhouse (ea66e3)

  34. Kman

    > Disagree with his interpretation all you like, but I don’t think he was being “dishonest” or “making crap up”.

    I didn’t say the judge was making crap up. That is your approach to the law, which you were pushing with one of the most tired arguments from the liberal lawyer playbook. I don’t know enough about the judge to know what his approach is. I will give the judge the benefit of the doubt and assume this is an honest disagreement.

    > For statutes, perhaps. But not in the constitutional context.

    Apparently you were asleep in your first semester of Constitutional law:

    “The case being within the words of the rule, must be within its operation likewise, unless there be something in the literal construction, so obviously absurd or mischievous, or repugnant to the general spirit of the instrument, as to justify those who expound the constitution in making it an exception.”

    (emphasis added.) If you are competent or just take good notes as you stalk me (or know how to use google), you will know exactly where that passage comes from.

    > And (unlike the examples you give) the result here isn’t “absurd” — you just don’t like it.

    If you don’t find anything absurd in saying that we can force a Chinese person to buy American products using the commerce clause… well, is this like Bizarro Superman, where everything normal to us is weird to him and vice versa?

    > At the time of the framing of the Constitution, you could have purely intrastate commerce that did not touch upon interstate commerce.

    And you can’t now? It’s physically impossible? Why is that? I mean give me an example in 1789 of purely intrastate commerce and then explain to me why it is impossible today.

    > The line was far more bright, particularly in a society where commerce was much more agarian. Put another way, you didn’t have much by way of industries, which are typically (if not definitionally) interstate in nature.

    Um, you do realize how paralyzing stupid that comment was, right?

    Like for instance, you know what was a big crop in your state? Tobacco. Do you think all of that tobacco was consumed in-state, or do you think maybe they shipped it out of state? And the whiskey rebellion was all about farmers who were angry at being penalized in their often interstate trade. It was exceedingly difficult for corn farmers to trade their corn as corn, but if they converted it to whiskey it became much easier to transport, so the whiskey tax hit them particularly hard. And as for industries, most of the time manufacture stayed close to the source of materials and often only shipped locally. There is nothing inherent about agriculture or industry that is interstate or intrastate.

    I know the argument for the technological differences better than your facile hand waving demonstrates, which is why I know it is crap.

    > Congress, everyone concedes, can regulate the healthcare industry.

    Actually in 1789 they didn’t concede that congress could regulate anything but the movement of goods. Insurance and services didn’t count.

    So by everyone you mean anyone who doesn’t know crap about what commerce meant to the founders.

    > Without the individual mandate, Congress cannot make the changes that it is constitutionally empowered to make

    Well, first, then you are implicitly conceding that the judge is wrong. He was claiming that “regulate commerce” meant that congress could command you to engage in commerce. And since you are falling back to necessary and proper, you are conceding that the commerce clause by itself is not enough.

    Which doesn’t mean I win the whole argument on obamacare, but it does mean that you have implicitly admitted that I was right that the word “regulate” does not mean “create” in the constitution. And yet you refuse to admit that… why?

    Second, congress can make the changes in the law, but it will be a fiscal disaster. You are confusing the term “impossible” with the term “really stupid.” It would be really stupid to try to pass things like the pre-existing condition rule if congress can’t also pass a mandate. But that doesn’t render it impossible.

    > Are the results “absurd” from the perspective of what the framers would have wanted? I don’t know and neither do you.

    Lol you don’t know if the founders intended to give the Federal Government the power to enslave all free men?

    Well, given your dearth of knowledge about history generally, it’s not surprising.

    Aaron Worthing (e7d72e)

  35. Feeding his cows wheat gives them gas which contains methane which may waft over State lines. Duh.

    JD (bc52c1)

  36. JD

    don’t laugh. The EPA has used arguments somewhat similar to this when trying to justify our laws on commerce clause grounds. As in, this species of rare bird travels from one state to another and thus travels in interstate commerce, allowing us to outlaw the non-commercial killing of them.

    Aaron Worthing (e7d72e)

  37. But they’re not charging for the methane

    Milhouse (ea66e3)

  38. Kman: “Are the results “absurd” from the perspective of what the framers would have wanted? I don’t know and neither do you.”

    So, I guess the perspective of the framers is relevant to Kman — or, is it? Who knows? Who’s perspective is relevant? Kman doesn’t say– which says so much.

    foxbat (b6c9b5)

  39. So much of what passed for breakthrough jurisprudence in the after-math of the “Packing Threat”, was just plain cowardice, nothing more.
    “Profiles in Courage Jello”

    AD-RtR/OS! (e69ef4)

  40. AW – in it’s essence, Kmart is arguing that once it reaches necessary and proper, there is no limit to what the Fed govt can compel citizens to do. It is a noxious idea. Mrs Doubtfire is a clown.

    JD (bc52c1)

  41. 30.I believe based on my numerous reading of wickard is that the court only held that he was limited to how much wheat he could grow under the act. The language in the case did not say he could not grow wheat to feed his family.

    Huh? Are you saying that if Fillburn’s quota were smaller the court would have found for him? That it only found against him because his quota happened to be big enough that if he were to grind it all and make bread out of it his family could live off it? Does that mean that a constitutional quota would become unconstitutional if his wife had another baby, or that an unconstitutional one could become constitutional if one of his kids left home?!

    Comment by Milhouse —

    Milhouse – All I am saying is that the issue of growing wheat to feed his own family was never actually addressed in the opinion. (though I conceed that numerous courts believe that it did address that issue). The issue addressed was whether Filburn could grow wheat in excess of his allotment for consumption on the premises for his commercial cattle/dairy operation. Due to the language/terminology used, later courts have reached the conclusion that it did address growing wheat for his family. Terminology such as “home grown for consumption” was meant to mean “wheat grown on the farm for consumption in the cattle/dairy operations”. (When read in that light, the case clearly make sense that commerce clause applied to the growing of wheat for commerce.

    Joe-Dallas (5e0a70)

  42. Kman

    > But to answer a related concern: Does this mean that Congress can compel me to buy a Big Mac in order to prop up the hamburger industry?

    > I think it can, constitutionally. And I think that is troubling (and it troubled Silberman, too).

    So let’s review the constitution according to Kman.

    According to him if you would like to abort a fetus or have gay sex, hey its your body your choice.

    But, if you don’t want a big mac, too bad.

    Nope, nothing at all absurd about that.

    Aaron Worthing (e7d72e)

  43. Kman, just curious. Did you agree with both Lopez and Morrison? If yes, then say so. If not, you’re evading.

    foxbat (b6c9b5)

  44. At the heart of this matter is the question of does the Commerce Clause truly invest Congress with a “central planning” power, in that they proceeded to allocate the ability to – in this instance – grow wheat?
    If, in fact, they have that power, then they have all power; and can dictate the distrubution of resources and labor across all boundaries of the economy.

    AD-RtR/OS! (e69ef4)

  45. JD

    “Mrs Doubtfire”

    *milk is spurting out of my nose.*

    Aaron Worthing (e7d72e)

  46. And Kman, the “systemic buffer” to which you refer is called the amendment process. The Founders, to the extent you consider their views relevant, largely viewed deciding constitutional issues through the “every X years” type of elections as mob rule — and it is.

    foxbat (b6c9b5)

  47. Well, there you go foxbat, bringing up that inconvenient “republic” thingey –
    you know kmart just doesn’t understand such concepts.
    Every aspect of the country needs to be run like a New England Town-Meeting,
    look at how well Vermont has turned out.

    AD-RtR/OS! (e69ef4)

  48. Ad

    sure, Kman believes that the people should get what they want.

    unless it is a ban on gay sex. then it is the end of the republic if we allow that, don’t you know we have a constitution that carefully limits what the government can do?

    In short he is utterly unprincipled in his analysis. he wants us to ignore the constitutional limitations that are written, and strictly enforce the ones that are pulled from the justices’ posterior.

    Aaron Worthing (e7d72e)

  49. Don’t you know we have a constitution that carefully limits what repubs do?

    More like it Aaron.

    DohBiden (ef98f0)

  50. Well, telling me that kmart is unprincipled is not a new revelation.
    His reputation, such as it is, is well deserved; but why work that hard to gain so little?

    AD-RtR/OS! (e69ef4)

  51. Seriously, Kman, don’t pretend you believe in following the constitution even if you don’t like the outcome of a particular case… when you are on record supporting the outcome in Lawrence v. Texas (the case finding a right to gay sex). If there was ever a case where the court let its policy preferences distort their interpretation, that is it.

    And indeed, every time i point that out to you, you whine back to me (paraphrase) “so you want gay people to be arrested for having sex?” You can’t separate your policy preference from your interpretation of the constitution.

    No, i don’t want gay people to be arrested for (just) being gay. i think that any police dept that has enough resources to enforce that kind of law is ripe for some budget cuts. but unlike you, i can separate my policy preferences from my interpretation of the constitution.

    Indeed you have such a woody for this health care law, that you can’t even admit that if it is upheld that it would nullify lawrence.

    Which ironically is why i believe Kennedy will strike down obamacare. i wish i could say he would just follow the constitution, but Kennedy v. Louisiana put that idea to rest.

    Btw, exit question. You said that the government can force you to buy a big mac. Really, then? What if you didn’t want to buy it because you were boycotting the company for one reason or another? Too bad?

    Aaron Worthing (e7d72e)

  52. What do we know Aaron we’re just rednecks like Bush

    /Sarcasm off

    Bush had an education though.

    DohBiden (ef98f0)

  53. If you don’t find anything absurd in saying that we can force a Chinese person to buy American products using the commerce clause… well, is this like Bizarro Superman, where everything normal to us is weird to him and vice versa?

    I find that absurd, although the absurdity arises not from the Commerce Clause, but from you apparently thinking that a Chinese person is subject to the laws of the United States.

    At the time of the framing of the Constitution, you could have purely intrastate commerce that did not touch upon interstate commerce.

    And you can’t now? It’s physically impossible? Why is that?

    As I explained, back then you didn’t have the advances in transportation, goods preservation (refrigeration, etc.), the Internet, etc. You didn’t have corporations and industries which were multi-state in character. At best, you had supply lines of individual proprietors, and there wasn’t (in many instances) a national market for products.

    Nowadays, of course, if I milk my cow for example, that milk can be sold anywhere in the world, given the advances in food preservation and transportation.

    But that was then. And no, I’m hard-pressed to think of any purely intrastate commercial action that doesn’t touch upon interstate commerce.

    Actually in 1789 they didn’t concede that congress could regulate anything but the movement of goods. Insurance and services didn’t count.

    Well, if the framers wanted everything to be the way it was in 1789, they could have said so in the Constitution. Textualism has never meant “do what they did in 1789″; it means “what did they write in 1789″.

    Well, first, then you are implicitly conceding that the judge is wrong. He was claiming that “regulate commerce” meant that congress could command you to engage in commerce.

    Sorry, I meant to concurring justice, not Silberman.

    …but it does mean that you have implicitly admitted that I was right that the word “regulate” does not mean “create” in the constitution.

    Hey, you want to put words in my mouth and then debate me on it? I don’t have that kind of time.

    No, “regulate” doesn’t MEAN “create”. Even Silberman doesn’t say that. That’s your spin. “Regulate” means “to prescribe the rule by which commerce is to be governed”. The ACA, including the individual mandate, is exactly that — a set of rules by which healthcare in this country is to be governed.

    It would be really stupid to try to pass things like the pre-existing condition rule if congress can’t also pass a mandate. But that doesn’t render it impossible.

    Fortunately, possible/impossible isn’t the threshold under the N&P clause. As Scalia himself puts it, Congress can do what it needs toward the “attainment of the legitimate end” of an objective under the commerce clause. That’s Raich, I believe.

    > Are the results “absurd” from the perspective of what the framers would have wanted? I don’t know and neither do you.

    Lol you don’t know if the founders intended to give the Federal Government the power to enslave all free men?

    “Enslavement”?!? Is that what the individual mandate is?

    The more you resort to hyperbole and insults, the more difficult it is to have a serious legal discussion with you. If you’re not up for that and just want to serve raw meat to your readers, that’s fine. But it wastes my time and I would rather engage in a discussion with your more thoughtful commentators (who, thankfully, exist)

    Kman (5576bf)

  54. “But that logic doesn’t hold up to scrutiny, because the upshot of it is to erase a distinction written into the Constitution itself between intrastate commerce and interstate commerce. What was the point of inserting that phrase “among the several states” if that distinction was going to be swept away by the Necessary and Proper Clause?”

    I think its fine to say that the founders were working with a different economy than we have. As commerce has grown — and what affects it has grown — so, naturally, does the power to regulate it and what affects it.

    Clever of Silberman to use an originalist argument, but it seems pretty simple to regulate the huge, national health insurance market with a mandate, given the impact that not having a mandate would have. Preventing that impact is within the power to regulate commerce, and within the necessary and proper clause.

    “But, here’s the nub of it all: Silberman’s opinion essentially means Congress has unlimited power. (If there are any limits left, please clue us in.).”

    They’re in Lopez and Morrison.

    mays (a91e4e)

  55. You said that the government can force you to buy a big mac. Really, then? What if you didn’t want to buy it because you were boycotting the company for one reason or another? Too bad?

    Too bad. Just as it was too bad for the hotel owners who didn’t want to serve “colored people” (as they were called then) in Heart of Atlanta Motel. Just as it was too bad for conscientious objectors and pacifists to register for the draft (which is different from actually serving).

    I’d buy the Big Mac, or (if I was really committed to the boycott) pay the penalty to the government (like they have in the Affordable Care Act for those who refuse to health insurance).

    Kman (5576bf)

  56. One of the ironies is the young voted enmasse for obama and the Obamacare mandate is a massive shift of the health care costs from the old to the young (due to the limitations on premium differentials, etc.)

    Image if a young individual was mandated to buy homeowners insurance, even though they lived in an apartment and were mandated to pay homeowners insurance premium on a $300k-$400k house, not withstanding that their first house which they are 3-4 years away from buying will only cost $150k. This homeowners insurance mandate is based on the premise that they will someday buy a $300k house.

    Joe-Dallas (5e0a70)

  57. If there were no, or such a small amount as to be irrelevant, interstate commerce at the time of the Founding, why did “Mr. Madison” feel a need to include in Art-1, Sec-8, the authority to regulate commerce between the States, and Internationally?
    That there must have been a “need” for such “regulation”, puts a lie to your line of discourse.
    Will you now support Congressional Regulation of the Internet, since the writers of the Constitution had no way of knowing about such expanded forms of communication, and would never conceive of it as being a “press”?

    AD-RtR/OS! (e69ef4)

  58. Obamacare mandate is a massive shift of the health care costs from the old to the young

    And comopared to all other systems, from high earners to low earners, except for the very poor, if they can prove it.

    Sammy Finkelman (d3daeb)

  59. “But, here’s the nub of it all: Silberman’s opinion essentially means Congress has unlimited power. (If there are any limits left, please clue us in.”

    Lopez and Morrison has your limits.

    As for the absurdity argument, its not that convincing. You can take congresses power to set a minimum wage to an absurdity. If congress can set it at 8 dollars, why not 8 million? Absurd!

    The constitution isn’t meant to prohibit or limit all absurd laws. There’s still a political process. And nothing that absurd about the fact that the political branches have the ability to solve the absurd level of problems that a lack of mandate would cause.

    mays (ebdeaf)

  60. Milhouse – All I am saying is that the issue of growing wheat to feed his own family was never actually addressed in the opinion. (though I conceed that numerous courts believe that it did address that issue). The issue addressed was whether Filburn could grow wheat in excess of his allotment for consumption on the premises for his commercial cattle/dairy operation.

    What’s the difference between feeding his cows and feeding his family? Neither one was in interstate commerce, and the possibility that he might one day sell the cows to someone from another state never entered into the decision. The distinction you’re drawing is irrelevant. As I asked you earlier, what if his family were bigger?

    Due to the language/terminology used, later courts have reached the conclusion that it did address growing wheat for his family. Terminology such as “home grown for consumption” was meant to mean “wheat grown on the farm for consumption in the cattle/dairy operations”.

    Of course it meant that! What the heck else did you think it meant? Do you think you’ve discovered some sort of language drift here? Did you think his family boiled the wheat and ate it themselves? The fact is that he grew the wheat for his own consumption, not for sale.

    Milhouse (ea66e3)

  61. As I explained, back then you didn’t have the advances in transportation, goods preservation (refrigeration, etc.), the Internet, etc. You didn’t have corporations and industries which were multi-state in character. At best, you had supply lines of individual proprietors, and there wasn’t (in many instances) a national market for products.

    Bulldust. As I explained, there was not just a national but an international market for nearly everything produced in America. America was a primary producer for the world. Preservation was sufficiently advanced for nearly everything produced.

    Nowadays, of course, if I milk my cow for example, that milk can be sold anywhere in the world, given the advances in food preservation and transportation.

    Milk was barely a commercial product at all then. There wasn’t really any such thing as a dairy farm. People had milk-cows. What Americans did produce, they could preserve with the technology of the day, and they did produce and preserve and export it.

    Milhouse (ea66e3)

  62. Kman

    > I find that absurd, although the absurdity arises not from the Commerce Clause, but from you apparently thinking that a Chinese person is subject to the laws of the United States.

    Why not? Their failure to buy American products is having an effect on our economy! The logic fits. As for jurisdiction, we didn’t give the Federal Government jurisdiction over all commerce, just the interstate commerce and its incidents. So we the people consented to this arrangement about as much as this hypothetical citizen of china.

    > As I explained, back then you didn’t have the advances in transportation

    As I explained your understanding of commerce at the time was ignorant, something you don’t even discuss. Have you never heard of the term “cash crops?”

    And notice you skipped over this question:

    > I mean give me an example in 1789 of purely intrastate commerce and then explain to me why it is impossible today.

    And this time, when you answer, remember this: there is such a thing as Amish people.

    > Well, if the framers wanted everything to be the way it was in 1789, they could have said so in the Constitution.

    Again, another false argument. They didn’t specify everything in our society had to remain the same. You are not required to use powdered wigs and quill pens, as you love to pretend we are arguing because there is nothing in the constitution on that subject, but they did specify certain things that the Federal Government could not do and they did intend for those words to remain in effect until repealed by another amendment. One of them was the limits of Congressional power to regulate commerce.

    > Hey, you want to put words in my mouth and then debate me on it? I don’t have that kind of time.

    > No, “regulate” doesn’t MEAN “create”.

    So I was putting that in your mouth, but I was right anyway. Okay…

    > Even Silberman doesn’t say that.

    Its sad that a dyslexic like me has so much better reading comprehension than you do.

    > Fortunately, possible/impossible isn’t the threshold under the N&P clause.

    True. But you are the one arguing that impossibility was the standard demonstrating you didn’t know what necessary and proper means or what impossible means. To quote you:

    > Without the individual mandate, Congress cannot make the changes that it is constitutionally empowered to make; therefore, the individual mandate is necessary and proper.

    Moving on:

    > “Enslavement”?!? Is that what the individual mandate is?

    No, and if you actually read the post you would know what I was saying (hint: I mention the thirteenth amendment when discussing it.)

    > The more you resort to hyperbole and insults, the more difficult it is to have a serious legal discussion with you.

    When have you ever attempted to be serious? You throw out tired facile liberal clichés. You take positions in direct contradiction from your prior positions. You don’t bother to read what you are responding to so badly that once you criticized my critique of an Iowa supreme court decision, without knowing which constitution we were talking about. On what planet is that serious discussion?

    (for those in the peanut gallery, here’s that bit on the iowa supreme court: http://patterico.com/2010/11/03/iowa-voters-to-gay-marriage-justices-%E2%80%9Cyou%E2%80%99re-fired%E2%80%9D/#comment-716354)

    I mean you spent years arguing that the right to boycott was a valuable first amendment freedom so much so that if a school wished to “boycott” military recruiters they cannot be deprived Department of Defense funding for doing so. That is you felt that if the Department of Defense was being boycotted by a school, they couldn’t boycott them right back. But then in another thread you argue that its perfectly appropriate for the Federal Government to punish people who boycott private companies by increasing their taxes: http://patterico.com/2010/12/01/boycotting-abortion-has-obamacare-been-sunk-by-citizens-united-and-the-naacp-v-claiborne-hardware/ There is no way to reconcile those two positions you took. And you talk to me about having a serious discussion? You are only pretending to be serious when you come here.

    Aaron Worthing (e7d72e)

  63. Kman

    > [me] You said that the government can force you to buy a big mac. Really, then? What if you didn’t want to buy it because you were boycotting the company for one reason or another? Too bad?

    > [you] Too bad.

    Ah, so Congress can outlaw the Montgomery bus boycott. What a perfect fascist you are. apparently the only freedoms you respect are the ones the constitution DOESN’T guarantee.

    Aaron Worthing (e7d72e)

  64. As long as Kmart agrees with the policy, there is no limit whatsoever to what the Federal govt can force citizens to do.

    JD (bc52c1)

  65. JD

    that’s pretty much Mrs. Doubtfire’s position.

    Aaron Worthing (e7d72e)

  66. 58.Milhouse – All I am saying is that the issue of growing wheat to feed his own family was never actually addressed in the opinion. (though I conceed that numerous courts believe that it did address that issue). The issue addressed was whether Filburn could grow wheat in excess of his allotment for consumption on the premises for his commercial cattle/dairy operation.

    What’s the difference between feeding his cows and feeding his family? Neither one was in interstate commerce, and the possibility that he might one day sell the cows to someone from another state never entered into the decision. The distinction you’re drawing is irrelevant. As I asked you earlier, what if his family were bigger?

    Due to the language/terminology used, later courts have reached the conclusion that it did address growing wheat for his family. Terminology such as “home grown for consumption” was meant to mean “wheat grown on the farm for consumption in the cattle/dairy operations”.

    Of course it meant that! What the heck else did you think it meant? Do you think you’ve discovered some sort of language drift here? Did you think his family boiled the wheat and ate it themselves? The fact is that he grew the wheat for his own consumption, not for sale

    Milhouse – please go back and read the case – The consumption was for consumption in his commercial cattle/dairy operation. In your response to the question of feeding his family or feeding his cattle dairy operation – one is for his personal use, the other is for his commercial cattle dairy operations. If you read the case carefully, the one sentence that implies that the personal growing of wheat (and quoted in the Raich opinion) is clarified by the subsequent sentence.

    Even though other courts have interpreted as such, it is a strained reading to say the Wickard limited the wheat that could be grown to feed his own family. See Oconner’s dissent in Raich.

    Joe-Dallas (5e0a70)

  67. Joe

    You are basically right about the facts. but i think you just read a little less into what i was saying about the case than i meant to convey. which is pretty much my fault.

    Aaron Worthing (e7d72e)

  68. kmart should remember the advice of “Col. Troutman”:
    Be sure and bring lots of body-bags!

    AD-RtR/OS! (e69ef4)

  69. “You said that the government can force you to buy a big mac. Really, then? What if you didn’t want to buy it because you were boycotting the company for one reason or another? Too bad?”

    Are the limits here because of the commerce clause or the first amendment? Your “fascist” comment makes me think it’s the latter.

    Apropos boycotts, the labor law already prohibit some types of boycotts.

    mays (833efb)

  70. I find that absurd, although the absurdity arises not from the Commerce Clause, but from you apparently thinking that a Chinese person is subject to the laws of the United States.

    Why not? Their failure to buy American products is having an effect on our economy! The logic fits. As for jurisdiction, we didn’t give the Federal Government jurisdiction over all commerce, just the interstate commerce and its incidents. So we the people consented to this arrangement about as much as this hypothetical citizen of china.

    Actually, it’s a logical fallacy. Goes by the name of “false analogy”. Just because the Chinese don’t buy our products doesn’t make them subject to our laws.

    Also, you seem to be confusing personal jurisdiction (jurisdiction over the person) with subject matter jurisdiction.

    …but they did specify certain things that the Federal Government could not do and they did intend for those words to remain in effect until repealed by another amendment. One of them was the limits of Congressional power to regulate commerce.

    Well, I don’t want to get bogged down in semantics, but Art I. Section 8 is a GRANT of powers, not a limitation thereof. One should start from the premise (particularly if one believes that the framers wanted a limited federal government) that government had NO power until the Constitution specifically gave it to Congress. You seem to start from the premise that the federal government had unlimited powers until Article I, Sec 8 takes it away.

    So the Commerce Clause is actually a grant of power. And admittedly, a big one. And admittedly, a grant of power that got bigger as a result of progress and technical innovation. But “interstate commerce” is “interstate commerce”. And the entire nationwide healthcare industry IS “interstate commerce”. Them’s the raw deal.

    And notice you skipped over this question:

    > I mean give me an example in 1789 of purely intrastate commerce and then explain to me why it is impossible today.

    I skip over lots of things you write. Especially when you set up strawmen (putting words in my mouth). Or want to talk about Lawrence v Texas (not a Commerce Clause case, by the way — not even a case about federal powers). Or want to re-live what you consider to be your triumphs against me to impress “the peanut gallery” (as you call them), before I get put back in moderation.

    That said, I should think the answer is obvious. In 1789, for example, there wasn’t a cohesive interstate market for milk, since there wasn’t things like refrigeration, swift transportation, etc. Can’t say that today. Any sale of intrastate milk today necessarily touches on a thriving interstate milk market.

    Kman (5576bf)

  71. mays

    well, you’re right to say i am now talking about the first amendment. Sort of. In my way of thinking, the two are not necessarily hermetically sealed from each other. Madison famously said that in writing the bill of rights he thought the whole thing was unneccessary–that every one of them were already implied in the original constitution. so its wrong to say that “but for the first amendment, boycotts can be banned.” instead the proper way to say it is that because of the existence of the first amendment, the commerce clause was never meant to be read so broadly as to prohibit boycotts in the first place.

    If that makes sense.

    Aaron Worthing (e7d72e)

  72. Kmart – what limits would you place on Fed govt power? Can they compel purchase of a car? Specific car? House? Where would you draw a line, if any? Nevermind. Mrs Doubtfire has no principles, so any answer would be based on ideological policy desires.

    JD (bc52c1)

  73. “so its wrong to say that “but for the first amendment, boycotts can be banned.” ”

    The text of the first amendment seems very clear on the fact that it is the part of the constitution that would limit speech restrictions. Your analysis seems completely unfamiliar with how the constitutionality of things is determined. Can you find an example where the court reasoned like you do?

    mays (833efb)

  74. Kman

    > Also, you seem to be confusing personal jurisdiction (jurisdiction over the person) with subject matter jurisdiction.

    Jurisdiction is jurisdiction.

    > Art I. Section 8 is a GRANT of powers, not a limitation thereof.

    The grant of power contains within it a limitation thereof. Duh.

    > You seem to start from the premise that the federal government had unlimited powers until Article I, Sec 8 takes it away.

    You are the one arguing for unlimited power (except over abortion and gay sex) not me.

    > And admittedly, a big one.

    These are not arguments but assertions.

    > I skip over lots of things you write.

    Including facts necessary to understand what I am saying, arguments that you will later fail to notice refuted your point before you made it… Yes, we know you often write without reading what you are responding to.

    > Lawrence v Texas [is] not a Commerce Clause case, by the way — not even a case about federal powers

    So what? It is an example of the supreme court pulling a right out of thin air and you supporting it, and it completely undermines your dishonest stance as a person who believes the constitution should be followed even if you don’t like the outcome. If you really believed that, you would realize that Lawrence was wrongly decided. If you believe it was rightly decided, then just admit we are not talking about rule of law, but only the rule of our 9 robed masters.

    And then finally you answer the question (or try to). First my question:

    > give me an example in 1789 of purely intrastate commerce and then explain to me why it is impossible today.

    And your alleged answer.

    > That said, I should think the answer is obvious. In 1789, for example, there wasn’t a cohesive interstate market for milk, since there wasn’t things like refrigeration, swift transportation, etc. Can’t say that today. Any sale of intrastate milk today necessarily touches on a thriving interstate milk market.

    And amazingly you forgot my advice: to remember that there were such thing as Amish people. Yes, in 1789 it was probably impossible to transport milk over long distances before it went bad. But you have failed to demonstrate that today it is IMPOSSIBLE to produce and consume milk without engaging in interstate commerce. You don’t HAVE TO use refrigeration and diesel milk trucks and ship the milk over long distances. You can in fact just own a few cows, go out in the morning, yank on their teets and have a drink.

    So here you have an Amish farmer. His life is exactly like his father’s, his father’s life was just like HIS father’s, and so on going back to shortly after the founding. They have done the same thing, with the same technology for around 200 years and yet somehow magically you think that suddenly they are engaged in interstate commerce by drinking milk from their own cow.

    Aaron Worthing (e7d72e)

  75. JD:

    Kmart – what limits would you place on Fed govt power? Can they compel purchase of a car? Specific car? House? Where would you draw a line, if any?

    Well, I didn’t write the Constitution. But since you asked…

    As a general rule, I don’t think the federal government should compel anyone to buy anything.

    However, when you get to the specifics of health care, which is unique, I don’t think my health care costs should be heightened because others refuse to buy insurance. Others’ “right” not to purchase health care ends when it compels me to subsidize and absorb their healthcare costs (costs which, unlike Big Macs or a car or a house, you will have at some point in your life). That’s where I draw the line.

    Kman (5576bf)

  76. For instance, in Wickard v. Filburn a wheat farmer was told that he could be prevented from growing wheat for his own personal consumption on the theory that if he did not grow his own wheat he would be forced to buy it from others, and thus his growing of wheat affected interstate commerce.
    You are basically right about the facts. but i think you just read a little less into what i was saying about the case than i meant to convey. which is pretty much my fault.

    Comment by Aaron Worthing

    Aaron – I may have read your statement too quickly and interpreted to match Silberman’s comment. Silberman’s comment at oral arguments was that Wickard held that filburn could not grow wheat to feed his family.

    Joe-Dallas (bbbdbb)

  77. Kman

    Btw, i know you don’t want to relitigate all our past disagreements. Lord knows, if i said anything as stupid as what you said about that Iowa case, i wouldn’t want to revisit the issue, either.

    But would you care to explain how you reconcile your position in Fair v. Rumsfeld with your belief that the government can penalize you with higher taxes for engaging in a boycott?

    I mean i am starting to get the feeling that you just have such a woody for gay rights that you are willing to bend the constitution any which way to accommodate it. would you care to explain why i shouldn’t believe that? would you like to explain why it is that you should have the right to boycott the DOD without losing DOD money but not the right to boycott mcdonalds without having your taxes increased?

    Aaron Worthing (e7d72e)

  78. joe

    fair enough. sometimes we all misunderstand each other. the fault is very much mine.

    Aaron Worthing (e7d72e)

  79. Jurisdiction is jurisdiction.

    Ow. Yale weeps.

    Seriously, I think even the layman here understand that the U.S. Constitution and the Commerce Clause doesn’t apply to Chinese citizens. You really want to keep that horse on the track?

    You are the one arguing for unlimited power (except over abortion and gay sex) not me.

    No, I’m really not arguing for unlimited power at all. Neither constitutionally or politically.

    It [Lawrence v. Texas] is an example of the supreme court pulling a right out of thin air and you supporting it, and it completely undermines your dishonest stance as a person who believes the constitution should be followed even if you don’t like the outcome.

    That’s the difference between you and me. Just because I disagree with the outcome of a case, I don’t think the judges are “dishonest”. For example, I hardly agree with Scalia, but I understand his reasoning. I don’t just shrug my shoulders and say “He’s just pulling it out of thin air”. He writes an opinion! His reasoning is right there in black and white.

    Same with Lawrence v. Texas. You want to discuss it, discuss it. But what you do…. it’s akin to Godwin’s law. When you resort to saying that the majority in the Supreme Court just made it up, or are being dishonest, you’re negating the opinion that they actually wrote. You pretty much lose the intellectual high ground, and in the process, lose the debate. You may not think you’re better than that, but I sure as hell know I am.

    But you have failed to demonstrate that today it is IMPOSSIBLE to produce and consume milk without engaging in interstate commerce. You don’t HAVE TO use refrigeration and diesel milk trucks and ship the milk over long distances.

    And why should I demonstrate that, since I never held that position? This is why I ignored your question the first time. A strawman, asking me to support a position I never took. Waste of my time, and (I suspect) a diversion on your part.

    I never said it was “impossible” to “engage in” intrastate commerce. I said I was hard-pressed to think of an example of purely intrastate commerce that didn’t touch upon (or affect in some way) interstate commerce. Even your Amish farmer’s actions, while not engaging in interstate commerce himself, has an effect on interstate commerce, just like the wheat farmer in Wickard.

    Kman (5576bf)

  80. Kman

    > As a general rule, I don’t think the federal government should compel anyone to buy anything.

    Well, except that you wrote this:

    > But to answer a related concern: Does this mean that Congress can compel me to buy a Big Mac in order to prop up the hamburger industry?

    > I think it can, constitutionally. And I think that is troubling (and it troubled Silberman, too).

    So are you admitting that maybe you got something wrong?

    Yeah, it seems like you are. And as usual you are too small to admit it.

    But then you write:

    > However, when you get to the specifics of health care, which is unique, I don’t think my health care costs should be heightened because others refuse to buy insurance. Others’ “right” not to purchase health care ends when it compels me to subsidize and absorb their healthcare costs (costs which, unlike Big Macs or a car or a house, you will have at some point in your life). That’s where I draw the line.

    Well, then health care is only unique because no one has made those other things like healthcare, yet. After all, the reason why you are subsidizing other people’s health care is BECAUSE FEDERAL LAW FORCES YOU TO. Federal law creates this problem that you think is so special for health care that we can exercise this power that you seem to finally be admitting is kind of extraordinary.

    I mean we could easily create the same situation for food, for instance. Everyone needs to buy food, right? So imagine first the federal government said that all restaurants had to give people food whether they could afford to pay or not. Then bam, now all the people who pay for their food are subsidizing all the people who don’t. and according to you, that means we can do all sorts of things we can’t normally do.

    And yes, you won’t necessarily have a big mac in your life. I hate many of the ingredient in it, so I never have. But you will eat. And that means most of us will have to buy food. And unless you live in NYC or downtown Washington, D.C. you almost have to own a car…

    > Seriously, I think even the layman here understand that the U.S. Constitution and the Commerce Clause doesn’t apply to Chinese citizens. You really want to keep that horse on the track?

    Oy, there is so much wrong with that its hard to know where to begin. Its not a matter of the United States constitution applying or not applying, but the power of the federal government. A Chinese man growing wheat for his own consumption has no more consented to the federal government’s control over his conduct than anyone engaged in intrastate commerce has in America.

    Second, I will scratch this up as inadvertent, but you do know that if a Chinese citizen is living in America, they are very much subject to United States power, right? Right?

    Third, in fact we do apply federal power to foreign nationals living in foreign countries all the time. If a French citizen living in france conspires to monopolize the wine and cheese markets in a manner that affects American commerce, he can then be sued in American court. I have seen it done.

    But we do not extend the international commerce clause nearly as far as we do the interstate commerce clause.

    > No, I’m really not arguing for unlimited power at all.

    Well, maybe not now since you concede the Federal Government does not have the power to force you to buy a big mac.

    > That’s the difference between you and me. Just because I disagree with the outcome of a case, I don’t think the judges are “dishonest”.

    Good, point to me the part of the constitution where it says there is a right to gay sex that apparently no one noticed for 200 years.

    > And why should I demonstrate that, since I never held that position?

    Because you purported to do exactly that.

    > Even your Amish farmer’s actions, while not engaging in interstate commerce himself, has an effect on interstate commerce, just like the wheat farmer in Wickard.

    But that exact argument could have been made 200 years ago. While milk was not traded interstate very much, as I mentioned up thread whiskey was big business int[er]state. And the dirty secret of the early republic is we drank a sh-tload of alcohol back then. some have theorized that people drank it as a substitute for water, which often was not fit for human consumption. So every gulp of milk that the farmer drank form his cow was one cup we might have instead drunk of whiskey. Okay maybe not in the Amish case, but people who had a similar agrarian lifestyle. So by the argument in Wickard, a man drinking milk from his own cow affects the interstate market for whiskey.

    Wickard was not really a change in law prompted by changes in technology. It was just a change in law, pure and simple. And yes, I believe due to bullying by FDR, or you could argue they just “saw the light.” But they were not applying the commerce clause in the way it had been.

    [Edited after the fact for clarity. –Aaron]

    Aaron Worthing (e7d72e)

  81. Unbelievable the number who actually agree with the judge that “regulate” equal the right to compel someone to purchase something. If that were true, then Congress has really been slow at the wheel in solving the down economy. They apparently can pass all the laws they want under the Commerce Clause and require all the citizens to buy things. Just force everyone to buy cars, clothes, furniture, etc. under the guise of “regulating commerce among the states” and sales picks up, employment then picks up and all our economic woes go away.

    They don’t do that because they can’t. They can’t force citizens to purchase something just for being alive. That is different from compelling the purchase of auto insurance if they want to enjoy the privilege of being able to drive a car.

    Greg (0b393d)

  82. Just like the federal government shouldn’t force me to watch Rosie O’Donnell naked covered in sludge.

    DohBiden (ef98f0)

  83. Comment #9 by Aaron Worthing @ 10:04 am

    Yeah, me too.

    ropelight (19a74e)

  84. Kman

    and i forgot the most obvious example of the international application of the international commmerce clause: drug laws. you can be sitting down in panama, and a citizen of that country, but if you ship drugs up here, you are a criminal in America and we might extradite you or simply grab you (as has been done now and then). but oddly when talking about the international commerce clause we don’t apply the gonzalez v. raich [rule]. whereas wholly intrastate growth and use of MJ is still supposedly in violation of the interstate commerce clause, growing and selling your drugs in your home country has not been treated as something we can reach under the international commerce clause.

    [Edited after the fact for clarity. –Aaron]

    Aaron Worthing (73a7ea)

  85. 60 yrs ago, here in L.A. County, 18-miles from Los Angeles City-Hall, in a in an un-incorporated community of 40K people,
    I grew up on a milking/bottling dairy that had one of the largest networks of home-delivery in the county, even spilling over into Orange County.
    There aren’t very many milking dairies left in L.A.Co., but there are still a few bottlers,
    and they are dealing in strictly INTRA-state commerce (at least as it concerns milk).

    kmart is a fool.

    AD-RtR/OS! (e69ef4)

  86. How in the hell do Cars cause waste to go into the ocean?

    DohBiden (ef98f0)

  87. Kman claims that the mandate is necessary and Constitutional so we won’t have to subsidize those who won’t buy medical insurance. Just because an action can be claimed to be a solution to a big problem does not make it Constitutional. The proper (and Constitutional) solution to Kman’s stated problem is to withhold medical service to people who won’t buy insurance. This applies to any other product in the economy; if you don’t want to pay for it, you don’t get to have that product. Another Constitutional solution is for states to incorporate medical insurance as part of the welfare benefits given to legitimately low income or no income people.

    Kman doesn’t seem to have disciplined thinking. It is hard to believe he might be an attorney when he seemingly is clueless about how hard the founders worked to make a Constitution that would keep the federal government from becoming all encompassing and oppressive. Saying that we can ensure protections as citizens by voting people out every so many years (making the Constitution less important in protecting our rights) is mind-numbingly stupid.

    Ken in Camarillo (645bed)

  88. Ken in Camarillo is a wise man. Kmart, not so much. Kmart as about as many principles as jellyfish have spines.

    JD (318f81)

  89. Comment by DohBiden — 11/18/2011 @ 5:54 pm

    It is the residue that they leave on the streets:
    Tire dust, oil droppings, coolant, etc.
    It lays there until the next rain, then gets flushed into the storm drains, and out into the ocean;
    along with all the Starbucks coffee cups, McDonald’s wrappers, and the rest of the Urban Detritus that our “Civilization” deposits willy-nilly.

    AD-RtR/OS! (503ea7)

  90. Once again, feeding the wheat he grew to his own cows and chickens is his own consumption. How else did you think he was consuming unprocessed wheat? Did you think he was milling it and making his own baked goods and pasta? You still haven’t explained what conceivable difference there is between feeding his cows and feeding his family. Both cows and family were in the same state, and in neither case was there a commercial transaction.

    However Wickard is easily distinguishable from the health insurance mandate, because even after he lost the case Mr Fillburn didn’t have to buy any wheat if he didn’t want to. He could instead cut his wheat consumption. Obamacare doesn’t provide any such option.

    Milhouse (ea66e3)

  91. foxbat vs moonbat: Guess who won!

    Icy (b33de9)

  92. Just like the federal government shouldn’t force me to watch Rosie O’Donnell naked covered in sludge.
    Comment by DohBiden — 11/18/2011 @ 3:57 pm

    — Yeah, but you WOULD watch if she was covered in fudge, wouldn’t you, ya sick bastage!

    Icy (b33de9)

  93. Colombia is not corrupt just because the left says so.

    Anyway the commerce clause can be used for everything

    /Liberal media

    DohBiden (ef98f0)

  94. Kman likes it when The Guvmint tells him what to do.

    Icy (b33de9)

  95. Give mays this much: at least this time he stuck around and argued his incorrect opinions, instead of merely being another drive-by.

    Icy (b33de9)

  96. That is one of the biggest problems America faces, Icy: people who refuse to “grow-up”, refuse to take responsibility for their own choices and who are content to be told what to do. It is anti-American in nature, in that historically, the American people have had a profound distrust of expanded government.

    Colonel Haiku (7b2efb)

  97. I had this dream once wherein a profound distrust of expanded government led to something called a Tea Party, which was then followed by a Revolution, the result of which was the creation of a new nation founded on the blessings of liberty . . .

    Silly dream.

    Icy (b33de9)

  98. Oooooooooooooooooooops.

    Anyway the commerce clause can be used for anything

    /Liberal Media

    Sorry for that long uninspiring speech.

    DohBiden (ef98f0)

  99. Again.

    The Commerce Clause can be used for anything

    /Liberal media

    DohBiden (ef98f0)

  100. But no, Colonel. For people like Kman it is all about “equality,” not liberty. Even if this so-called ‘equality’ must be enforced at the end of a federal statute gun.

    Icy (b33de9)

  101. Kman is like a pile of turd Icy.

    No offense to turds.

    DohBiden (ef98f0)

  102. Gee, maybe the reason that the commerce clause specifies “among the several States,” aka ‘interstate commerce’ is because intrastate commerce is one of those “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.” And since states ARE allowed to impose their own taxes & regulations on commerce —

    As a staunch defender of states rights, Kman will now reverse his previous position in 3, 2, 1 . . .

    Icy (b33de9)

  103. AW> What was the point of inserting that phrase “among the several states”

    Well, I think the idea here really was, the type of commerce or the type of laws that could not effectively be regulated or be done by a single state. River navigation and long distance roads maybe. The Post Office was specific provision. the possibility of a single national bankruptcy was in there.

    But what we have here is 1) Giving privileges or an oligopoly to certain private companies – there is long precedent for that in the form of chartering banks 2) Mandatory participation, at least in theory. There are lot of tie-in provisions on the books – if you do X, you must also do Y – but I don’t know if there anything like this.

    Note: In theory. Not always reality. Take Auto insurance. In Michigan it includes complete medical coverage for auto accidents, and as usual is mandatory for automobile owners in Michigan.

    But in Detroit, where the median income is $15,000, the annual cost of auto insurance is $5,000, and 17% of drivers do not carry insurance.
    Of course many people don’t own cars or, contrary to law, don’t register them in that county. One of the issues the Supreme Court will consider is if forcing states to expand Medicaid, which is supposed to take care of the unaffordability problem, is actually legal.

    See, if Congress can mandate doing something it could also mandate doing or buying something unaffordable and/or worthless. And in fact this very law might turn out to mandate something unaffordable the first year if this Medicaid expansion is not constitutional.

    Of course Congress can also pass an unaffordable tax. As the Supreme Court once famously said “the power to tax is the power to destroy.” Is the power to regulate, also the power to destroy? And destroy not businesses but an individual’s financial footing, without any prior acts by the individual?

    One thing: if something is called a tax people understand what it is. The argument of Mark Levin’s Landmark Legal Foundation is that Congress in passing this law, did not call the penalty a tax (and the mandate something that exempted you from the tax) and they can’t change things around now. By the way, one issue the supreme Court will hear argued is whether or not a law that says that tax laws cannot be challenged until they are collected applies here – maybe nothing could be challenged until April 15, 2015. I don’t know what the detailed argument is here.

    Sammy Finkelman (2d0c86)

  104. Kman believes in states rights as much as Pimps oppose sexual enslavement…………………which means Kman doesn’t believe in States Rights.

    DohBiden (ef98f0)

  105. As a general rule, I don’t think the federal government should compel anyone to buy anything.

    However, when you get to the specifics of health care, which is unique, I don’t think my health care costs should be heightened because others refuse to buy insurance.

    You are logically inconsistent here. You’re saying the federal government can’t compel anyone to buy anything, except that the government can compel everyone to buy something.

    Actually, it’s a logical fallacy. Goes by the name of “false analogy”

    You’re certainly the resident expert on false analogies, you create them so often. Here’s an example of your handiwork:

    Too bad. Just as it was too bad for the hotel owners who didn’t want to serve “colored people” (as they were called then) in Heart of Atlanta Motel. Just as it was too bad for conscientious objectors and pacifists to register for the draft (which is different from actually serving).

    Not the same thing as forcing people to buy a service. The government can compel draft registration because it is not commerce. And if you refuse to see the difference between saying “merchants may not discriminate based on race” and saying “everyone must buy this particular merchant’s product”, then there is no hope for you. In any case, it’s a false analogy.

    Chuck Bartowski (84d5d3)

  106. Judge Silberman’s opinion is so out of line with the way he has operated before (according to his reputation as I understand it) that perhaps he should get a thorough medical checkup. It may be that he is having a health problem of some kind. I offer this comment in good faith, not to be snarky.

    Ken in Camarillo (645bed)

  107. rope

    lol, ah, so you think it is okay like supposedly a black person can say the n-word but no one else?

    (Just teasing dude. I wasn’t all that offended. I just like to gently discourage the use of LD as a pejorative.)

    Aaron Worthing (e7d72e)

  108. Kman

    btw, of course you missed another way to justify forcing you to buy certain food: because it is healthy for you. Here’s how the daisy chain to democratic totalitarianism works.

    1. force hospitals to treat everyone regardless of ability to pay, forcing the public at large to subsidize everyone’s treatment.

    2. take over healthcare because of #1.

    3. Declare that all day-to-day personal health decisions affect the public at large because of #2.

    4. Therefore force everyone to buy and eat healthy food because of #3.

    Of course you could then subsitute a different number 4:

    4. Therefore pass laws enforcing strict sexual morality, banning sex outside of marriage and homosexuality, because of the deleterious effects such practices have on health, see #3.

    Its a daisy chain, one intrusion leading to another, and to another. And while I don’t believe the constitution guarantees a right to free love, I think as a matter of policy we shouldn’t be caring unless they aren’t consenting adults, etc.

    So is there anything in the law stopping us from arriving at either step 4? Of course there is, but only if Obamacare is struck down. Which I will say again, is why I think Kennedy will strike it down; becaus if obamacare is upheld, it is the end of the right to privacy that he values. And you allegedly value, too.

    Aaron Worthing (e7d72e)

  109. Its a daisy chain, one intrusion leading to another, and to another.

    I think what you are describing would best be described as this, rather than a “daisy chain”. Don’t expect Kennedy to panic about privacy the way you do.

    By the way, the government already has been “forcing” everyone to buy and eat untainted (i.e., “healthy”) food for decades. So apparently we’ve been living under the yoke of democratic totalitarianism our whole lives.

    Kman (5576bf)

  110. Kman

    the slippery slope is a fallacy in political arguments. it is not in the law where one precedent leads to another.

    And banning food that will actually kill people or make them greviously ill is different than banning it for hardened arteries. but its nice to see you back in the “force you to buy a big mac category.”

    So by the same logic, if we can ban the consumption of big macs, can we ban gay sex? if not, why not?

    Aaron Worthing (e7d72e)

  111. Logic and Kman is like matter and anti-matter.

    DohBiden (ef98f0)

  112. Doh

    well, unless Star Trek (the original show) misled me about science, then i take that to mean that if Kman suddenly becomes logical the universe will end?

    My God… I better stop arguing with him.

    Aaron Worthing (73a7ea)

  113. Yes it will.

    And we must allow the support of adult stem cells to continue.

    DohBiden (ef98f0)

  114. SO let me guess this straight Palin is dumb but Obama isn’t and we truly do have 57 states according to the ultraleft.

    DohBiden (ef98f0)

  115. By the way, the government already has been “forcing” everyone to buy and eat untainted (i.e., “healthy”) food for decades. So apparently we’ve been living under the yoke of democratic totalitarianism our whole lives.
    Comment by Kman — 11/21/2011 @ 9:48 am

    — I’m sorry. Tell us again, what food have we been both ‘forced’ to buy AND ‘forced’ to eat?

    Icy (4105dd)

  116. Yeah, I don’t think Kman’s point works at all.

    I already have a government setting all sorts of standards for what is acceptable insurance and medical care, but they don’t FORCE me to buy it.

    The government does set some standards for some foods, but do they force me to buy it? No.

    If one can’t see the difference here, it’s because they aren’t trying.

    Not that I really even agree with a federal government being involved with food. That’s, ultimately, a big reason this country has corn syrup in everything. I wouldn’t mind if the feds got out of any business they weren’t absolutely needed in. Let the states deal with food.

    Hell, let the free market deal with it. If you think that’s not sufficient in 2011, you’re living on another planet.

    Dustin (cb3719)

  117. Well, then you run into that interstate commerce bugaboo, Dustin. For, if someone attempts to ship food that meets the standards of one state to another state with higher standards . . .

    Icy (4105dd)

  118. I mean, wasn’t that the plot of one of those Bandit movies?

    Icy (4105dd)

  119. The point on top of Kman’s tin foil hat works for spinning the propeller, and not much else.

    Icy (4105dd)

  120. Ya know, come to think of it, the other day I was in the grocery store, about to pick up a box of my favorite organic raisin bran, when this really official-looking dude wearing a dark suit and shades leaps down from his perch behind the 48-roll mega-pack of Charmin and says to me, “I really wouldn’t do that I’d I were you.”

    Well, I’ll tell ya, I dropped my Bottled in Mexico beer, and the box of Japanese Panko bread flakes I was holding and booked outta there, lickety-split!

    Icy (4105dd)

  121. Dude they day Kman starts arguing logically is the day the whole earth goes flying off its axles and starts hurdling towards the sun.

    DohBiden (ef98f0)

  122. the*

    DohBiden (ef98f0)

  123. Aaron:

    So by the same logic, if we can ban the consumption of big macs, can we ban gay sex? if not, why not?

    The government has the power to ban just about whatever the hell it wants, provided however that it doesn’t infringe on constitutionally protected conduct, and does not violate the tenets of Equal Protection and Due Process.

    So, constitutionally speaking, Bic Macs consumption can be banned; gay sex (as we know) cannot.

    Dustin:

    The government does set some standards for some foods, but do they force me to buy it? No.

    If one can’t see the difference here, it’s because they aren’t trying.

    Dustin, I think everybody understands the difference between the government banning X, and the government forcing citizens to buy Y.

    But, troubling as it is, the Constitution doesn’t make that distinction. It just doesn’t. And just because the individual mandate is novel doesn’t make it unconstitutional.

    Kman (5576bf)

  124. Kman

    apparently you never actually read Lawrence v. Texas:

    This case raises a different issue than Bowers: whether, under the Equal Protection Clause, moral disapproval is a legitimate state interest to justify by itself a statute that bans homosexual sodomy, but not heterosexual sodomy. It is not. Moral disapproval of this group, like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause. See, e. g., Department of Agriculture v. Moreno, 413 U. S., at 534; Romer v. Evans, 517 U. S., at 634-635. Indeed, we have never held that moral disapproval, without any other asserted state interest, is a sufficient rationale under the Equal Protection Clause to justify a law that discriminates among groups of persons.

    So all the court said was that if your ONLY justification for banning gay sex is disapproval of gayness, then that is not sufficient. But that leaves open the question of whether you can ban it for health reasons. I want to be very precise here. I am not condemning gay people for this fact, but it is a fact that gay sex is much less “safe” sex than straight sex. I could get into the whys of it, but let’s try to keep this discussion only pg-13. but it is a fact.

    Indeed, the rise of aids is a direct result of the break down of traditional norms of sexual morality. Aids has been around in fact for hundreds, if not thousands, of years. But it generally remained dormant. The virulence of a virus is directly tied to its transmission rate. A cold has a hard time transmitting, so generally it is less virulent, allowing you to be up and walking around as you are sick so you expose more people to the disease. the flu, on the other hand, is easily transmitted so it can knock you on your ass. And for many centuries Aids had a hard time transmitting due to the sexual mores of the past. which is not to say everyone was a virgin on their wedding day and remained monogamous until death do they part, but people had considerably less partners on average. And then the 70’s came along and everyone started sticking their wangs in everything. And what do you know, soon this previously tame STD suddenly became a killer. I want to be very clear, I am not blaming those people for what happened but telling you the cold hard facts about disease evolution. So it seems to me that sexual morality has a direct impact on health care costs, so that at least a ban on all “sodomy” might pass muster under the constitution.

    Are you starting to see why obamacare is the end of this experiment in privacy?

    Btw, let me ask you, do you believe laws that ban incest should be held unconstitutional, too? i am not saying that gay sex is exactly like incest, but i would like to figure out just how far you would take your libertine philosophy.

    Aaron Worthing (e7d72e)

  125. Well, questions are flawed because of their impreciseness. “Gay sex” to most people means “sexual acts between gay people”. If you intended to mean, say, sodomy (which occurs between heterosexuals as well as homosexuals), you should have said so.

    And I’ll forego your rather uninformed discussion on the history of sex and “disease evolution”. Suffice it to say — despite your belief that “the 70’s came along and everyone started sticking their wangs in everything”, homosexuality has been along for hundreds if not thousands of years, and in roughly the same proportion as it is now. And there have been cultures and epochs where it didn’t have the social mores that started with The Victorian Era. The only thing that happened in the 70’s was the beginning of a shift in our attitudes about homosexuality. But just because fewer people now believe in the immorality of homosexuality (compared to, say fifty years ago) doesn’t mean that we, as a society, are engaging more in homosexuality.

    Are you starting to see why obamacare is the end of this experiment in privacy?

    Not at all. I think you and some of your brethren are confusing “privacy” with “autonomy”. And I will agree that the individual mandate does impinge on liberty… but no more so than other laws which mandate (or restrict) behaviors, or take money from me and put it elsewhere (i.e., taxes, social security, etc.).

    But privacy? If you’re trying to assert that the commercial purchase of insurance is a “private” act, then that word does not mean what you think it means.

    so that at least a ban on all “sodomy” might pass muster under the constitution.

    It wouldn’t. Such a ban would be too overbroad to address the “heath concerns”.

    Most states make it a crime to knowingly transmit HIV through sexual intercourse/unprotected sex. Those laws strike the proper constitutional balance.

    Btw, let me ask you, do you believe laws that ban incest should be held unconstitutional, too?

    Of course not. On what ground?

    Kman (5576bf)

  126. Kman

    > Suffice it to say — despite your belief that “the 70′s came along and everyone started sticking their wangs in everything”, homosexuality has been along for hundreds if not thousands of years, and in roughly the same proportion as it is now.

    Riiight. There was no sexual revolution. *rolls eyes*

    > I think you and some of your brethren are confusing “privacy” with “autonomy”.

    Um, you do know that when the supreme court talks about privacy in this context that they are talking about autonomy, right? Seriously, do you know anything about the cases you defend? How is it that I , a critic of these decisions, have a better understanding of these basis than you do?

    The supreme court didn’t say that the police didn’t have a right to investigate what it done behind closed doors. Indeed in that case the police were there on other business and the two men kept having sex right in front of them until they got sick of it and arrested them. And it applies equally to when a person confesses in public to having engaged in the behavior.

    > Such a ban would be too overbroad to address the “heath concerns”.

    Overbreadth analysis only applies to free speech and abortion. You and I both know that under rational basis review they don’t have to cut with a scalpel. Try again.

    > Btw, let me ask you, do you believe laws that ban incest should be held unconstitutional, too?

    > Of course not. On what ground?

    Well, you believe that moral disapproval of a law is insufficient to ban private sexual conduct between consenting adults. So what is sufficient to justify it?

    Now you might say “to avoid the greater expression of harmful recessive genetic traits.” But there are several problems with that classic claim. First, since when are we in the “genetic purity” business (although I suppose with obamacare in place we could be, right?).

    Second, such laws also apply to people related merely by adoption or marriage. Thus Greg Brady cannot marry Marsha Brady in most states even though they are genetically strangers.

    Let’s face it, those laws exist because… well its kind of f—ed up to screw your sister even if she isn’t blood. But according to the supreme court that is not enough. So how would you justify the ban? Or would you even do so?

    Aaron Worthing (e7d72e)

  127. Well there was a certain level of that, as AIDS arose in SF, Greenwich Village, and other bohemian
    hotspots, but it was the failure of basic public
    health protocols are told by the late Randall Schilz and even in some of Horowitz’s own reporting
    that turned it into an epidemic.

    narciso (ef1619)

  128. It could be said that AIDS was our first PC disease, as the normal public-health protocols were not followed due to PC concerns.

    AD-RtR/OS! (031141)

  129. Just checking: Did Kman prove that the government forces us to buy and consume certain foods?

    No?

    Carry on.

    Icy (61f618)

  130. Um, you do know that when the supreme court talks about privacy in this context that they are talking about autonomy, right?

    Yes, in the context of consensual sex (typically a private matter), they are talking about autonomy. But that’s a far cry from autonomy in commercial activities, like buying health insurance, which is why your analogy is so inapt.

    Overbreadth analysis only applies to free speech and abortion.

    It doesn’t. Courts, including the Supreme Court, apply what is essentially an overbredth analysis to other areas involving fundamental rights as well: privacy/contraception (Griswald), right to travel (Aptheker), and right to vote (Louisiana v. U.S.). In all those cases (and perhaps others that don’t come to mind), the court held that the proposed law in question was too “sweeping” and overshot the societal ill that it was meant to fix. It was overbreadth analysis without specifically saying it was.

    Well, you believe that moral disapproval of a law is insufficient to ban private sexual conduct between consenting adults. So what is sufficient to justify it?

    “Moral disapproval of a law?” I’m not sure if that’s a typo on your part or not. So let me just state it clearly: I believe that moral disapproval of specific private sexual conduct between consenting adults is insufficient to ban that conduct.

    So turning to your question: “So what is sufficient to justify it [a ban on certain private consensual sexual acts]?” Well, nothing that I can think of, unless that conduct is truly not private (the sex act itself causes or creates harm to others or the participants) or it is not consensual.

    Let’s face it, those laws exist because… well its kind of f—ed up to screw your sister even if she isn’t blood… So how would you justify the ban? Or would you even do so?

    Well, if it’s a blood relative, there’s a health risk issue, and it is right and proper for the government to make incest illegal in that instance.

    If it’s not a blood relative (the Greg and Marsha Brady scenario), my initial impression is that it’s one of those victimless crimes. Unless I can be convinced that there is a strong likelihood of adverse mental or physical health consequences, it’s not a crime at all in my book.

    Look, if you’re an “as little government as possible” guy, then you have to believe that the government should get out of the morality regulation business, especially when the issue touches on matters of personal choice and religion. Be a libertarian OR a member of the moral majority trying to micromanage the bedroom, but you can’t be a pure adherent to BOTH of them. The government shouldn’t regulate certain sexual practices just because some self-appointed moral authoritarians find certain sexual practices to be “f-ed up”. That’s a bad reason and a dangerous precedent.

    Kman (5576bf)

  131. Icy:

    Just checking: Did Kman prove that the government forces us to buy and consume certain foods?

    No?

    I never said it did, Icy. Why should I prove a position I never took?

    Kman (5576bf)

  132. Kman

    > Yes, in the context of consensual sex (typically a private matter), they are talking about autonomy. But that’s a far cry from autonomy in commercial activities, like buying health insurance, which is why your analogy is so inapt.

    Right, so my body my choice applies only to sex. Nothing else. Good to know.

    > It doesn’t. Courts, including the Supreme Court,

    Really? Citations please. Although Griswold doesn’t apply overbreadth. Those people were personally being stopped from contraception.

    > “Moral disapproval of a law?” I’m not sure if that’s a typo on your part or not.

    Yep, we both f— up now and then. only one of us ever admits it.

    > Well, if it’s a blood relative, there’s a health risk issue, and it is right and proper for the government to make incest illegal in that instance.

    Really? So what if the blood relatives are both male or both female? Or what if the woman has had a hysterectomy? Or he lost his testicles in a tragic lawnmower accident? Gosh, it seems those laws are overbroad.

    At the very least doesn’t that mean that according to your principles there is a right to gay incest?

    > If it’s not a blood relative (the Greg and Marsha Brady scenario), my initial impression is that it’s one of those victimless crimes. Unless I can be convinced that there is a strong likelihood of adverse mental or physical health consequences, it’s not a crime at all in my book.

    Well, that is interesting, because the last time I threw that out to you, you said of course it could be banned because it is psychologically unhealthy.

    By the way, why can’t the people of a state declare gay sex psychologically unhealthy, then?

    > Look, if you’re an “as little government as possible” guy, then you have to believe that the government should get out of the morality regulation business,

    And there you go again, confusing what the constitution says with what your policy preferences are.

    Aaron Worthing (e7d72e)

  133. Ability to regulate allows compelled to purchase in kmart’s world. No need to go beyond that.

    JD (10025c)

  134. Jeesh doesn’t the left tire of being wrong I mean honestly didn’t they say Israel was responsible for JFK’s assassination and 9-11?

    DohBiden (ef98f0)


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