Amend the Commerce Clause?

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First, if you're not familiar with the Commerce Clause and what it means, watch this video:

[youtube]http://www.youtube.com/watch?v=6SDf5_Thqsk[/youtube]

I'm not going to deny that it's tilted towards my interpretation, that the CC needs to be amended in some way to curb congressional overreach, but it's completely factual and well researched. It will be interesting to see what SCOTUS makes of this, they've been in a precedent overturning mood lately, so maybe there's a chance of something actually changing, time will tell.

The problem with the Commerce Clause is not it's existence, but how the Supreme Court has allowed its exploitation for decades to vastly expand government power well beyond what the Founding Fathers intended.

Eliminating it would make dealing with legitimate interstate issues very difficult.

It needs to be modified to reflect it as restricted to specific interstate issues, but you'll never see Congress allow that amendment to pass through.

I don't think that a restriction on the commerce clause is going to have the effect of reducing the burden of government. I might well restrict the power and authority of the federal government, but it will do nothing to restrict states, who will, likely, fill the vacuum.

More importantly, though, in replacing a single, federal authority in areas that might now be seen to encroach, there will be, instead, a patchwork of authorities, which will, perforce, increase the cost of compliance for industries that act in multiple jurisdictions--a cost that will be passed on to the consumer.

Federalism is hard. But it's a great deal more efficient than Balkanization.

Can you be more specific and give some examples please.

Here's a good quote by Gerald Ford

"A government big enough to give you everything you want is a government big enough to take from you everything you have."

At first glance, I would say that the most significant area is agriculture and food production. There is probably no industry that is so susceptible to political interference in its basic economic structure as agriculture.

Since the Nixon Administration the US government has pursued a "Cheap Food" policy, and it has been able to do so largely on the back of the Commerce Clause.

Now, food production and food safety standards are not an area in which government is in a position to allow a vacuum to occur. There is too much potential for risk to public health from unsafe food (a little E. Coli in your burger today?) and too much risk to the economy from wild fluctuations in food prices.

So, when the products in your grocery store are likely drawn from all 50 states (and some products may be manufactured from components grown in multiple states), instead of one agriculture policy regulating the industry, there will be 50.

Perhaps I should have phrased my poll differently, to allow an option for modification by SCOTUS. That is more in line with what I see happening and what I think needs to happen, but long term I'd like to see some sort of "lock" placed on the clause, to prevent future courts and governments misusing it again in the future.

What, seal our laws in some sort of perpetual stasis, immune to potential modification as new situations arise?

That seems like a bad idea to me.

The commerce clause could definitely do with better defining to limit its scope.

I think the constitution should go dead every thirty years and have to be renewed by the body politic. That way everyone in each generation will have a hand (either directly or by representation) in the basic governance of the country. The current Constitution is a mortemain.

If it is useful to change the scope of the interstate commerce clause let it be done by amendment, not by judicial fiat. The people and Congress are supposed to make the law, not the Courts. Courts are only supposed to decide cases under the Law.

ruveyn

The Constitution should not be subject to the political whim of the day. The constitution should serve to balance competing interests, regardless of the political zeitgeist.

You have a fanciful notion of the role of courts. What is a court to do when the law is silent? Or ambiguous? Or contrary to the constitution? What is a superior court to do when two lower courts have differing opinions on the meaning of a statute?

Litgation does not involve settled points of law. If a point of law is settled, there is nothing to argue before a court. In Common Law jursidictions, appellate litigate always involves making new law, because it always involve a dispute that turns on a question of law. These cannot all simply be deferred to the legislature, because the business of society must go on, and if the legislature has failed to speak, or refuses to speak, disputes must, nontheless, be resolved.

What I'm talking about is a clearly worded amendment spelling out in no uncertain terms the limits of the Commerce Clause, just to prevent future courts greatly altering the scope of the law by reinterpreting it. SCOTUS has had some pretty scandalous judgments over the years, Dredd Scott, Slaughterhouses, maybe Citizen's United depending upon where you stand, I'd like something out of their reach on this one. A constitutional amendment if far from an immovable object, but would still provide a major obstacle to anyone trying for a power grab without the consent of the governed.

Constitutionally, both Federal and State law is statute law.

ruveyn

That is a utter fallacy.

The law includes, in descending order of precedence: the Constitution, Statute, Jurisprudence, and Common Law. The Common Law and Equity of England and Wales was received into every jurisdiction in the United States, except Louisiana, and nowhere has the Common Law been repealed.

The Common Law must always give way to statute, but where statute is silent, the Common Law governs a dispute between parties. Where statute is ambiguous, it is the duty of the court to resolve that ambiguity, and that resolution then forms part of the corpus of law.

When a person consults a lawyer for advice on how that person's affairs should be conducted, the lawyer is creating new law--new law of limited applicability, I grant you, but new law nonetheless.

If the entirety of law could be found in volumes of statute, there would be no need for legal education, no need for the legal profession, and no need for litigation. But the entirety of law is not found in statute and it never could be.

Yes you are quite right. In cases of equity Common Law is used, except in Louisianna where the Code Napoleon governs such cases.

I take your point. However statute law trumps common law.

ruveyn