An argument concluded

AMENDMENT X: The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

How did Congress come to habitually overreach its powers to act, and why did the Supreme Court use the Gun-Free School Zone Act as the vehicle to turn back that tide? And moreover, why do I care?

The last answer first. It is not my intention to oversimplify the argument here; my whole point is less for general consumption and more for a way to crystallize my thoughts on the matter. Many people discuss their politics, but few actually try to justify the bases for why they feel the way they do. Federalism and the proper scope of Congressional power are not only important political issues, they inform indirectly many areas of the current matters debated in Congress. As for the first, I contend that the commerce power granted to the Constitution was overreached primarily as a reaction to two strains of earlier wrong Supreme Court doctrines.


1. The Court’s earlier insistence on unnaturally narrow construction of “commerce” made the later justifications for upholding later legislation border on the absurd. Decisions like US v. EC Knight exempted agriculture and manufacturing from the definition of commerce (thus making them immune from federal regulation. Taking this to the logical extreme, the Supreme Court in 1918 decided that Congress lacked the power to ban from commerce goods produced bychild labor. This decision was overturned later. ). To explain this away, later court decisions did not overturn this finding but rather decided that legislation is constitutional if it “substantially affects” (language of Butler, linked yesterday) interstate commerce. This de-limited the reach of Congress’s power and was a primary reason why the Supreme Court decided to curtail that reach in 1995.


2. The necessity of the civil rights movement forced Congress to find a constitutional justification for legislation to correct legal discrimination. The Civil Rights cases of 1883 more or less cut off the power granted by the XIV Amendment to make laws to enforce equality of rights under the law. Instead of crafting civil rights legislation designed to challenge this questionable precedent* Congress decided instead to justify the guarantees of the Civil Rights Act of 1964 (and earlier weaker models) on the effects that racist treatment had on interstate commerce. It is not my contention that this is an untenable justification for civil rights laws, but that this decision set a bad precedent: instead of using the clearest cut channel for constitutional justification, Congress decided instead to further expand the commerce clause power, which muddies the waters further.

In a nutshell, the Court and Congress have backed themselves into a corner. Because the Court is unwilling to rewrite the whole of Article I section 8 constitutional law, when a case arises more layers are needed on the artifice of interpretation to make their desired result come out. Make no mistake about it; the Gun-Free School Zone act was very likely chosen the object for their scorn because it is a gun control law that does not fit within the ideological bent of the sitting majority on the Court. The simpler answer seems to me to understand commerce as what we consider a commercial enterprise, which necessarily includes manufacturing, mining, and agriculture, and then recognize that Congress has a virtually unlimited power to rectify civil rights abuses. I doubt that the Court is honest enough to make that determination.

*For a warrant for this claim, see clause V of Amendment XIV; Congress is granted necessary power to enforce the guarantees of the amendment, which include: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Speak no ill of the dead

Just kidding. An obituary of Richard Nixon, written by Hunter S Thompson.

He has poisoned our water forever. Nixon will be remembered as a classic case of a smart man shitting in his own nest. But he also shit in our nests, and that was the crime that history will burn on his memory like a brand. By disgracing and degrading the Presidency of the United States, by fleeing the White House like a diseased cur, Richard Nixon broke the heart of the American Dream.

Fair warning…

The few remaining non-family fans of this site occasionally bless me with email (incidentally, I’m phasing out my hotmail address due to the incredible volume of spam I now receive. Any potential emailers should use this address, sans spaces: h o b b 0 0 3 8 at u m n . e d u . That’s h-o-b-b-0-0-3-8 at umn dot edu). Among the most regular comments made by such emailers are statements such as “I like your site but your legal talk is sometimes a bit dense.” I disagree with you, dear reader, but allow this to be your warning: legal talk ahead.


Few people know or think about the fact that our Congress is not granted a general police power (that is, a granted right to pass legislation about anything it wants to regulate). Article I, section 8 grants Congress certain enumerated powers only and not a general plenary power to make law.

The Framers were acutely sensitive to the fears of many that a new federal government would erode the independence and authority of the states and the people. To protect against that possibility, they stipulated that the federal government would have only a short list of powers that were explicitly enumerated in the Constitution. "The powers delegated by the proposed Constitution to the federal government are few and defined," Madison explains in Federalist No. 45. "Those which are to remain in the State governments are numerous and indefinite." Since federal jurisdiction extends "to certain enumerated objects only," Madison stresses in Federalist No. 39, the Constitution "leaves to the several States a residuary and inviolable sovereignty over all other objects." (source, conclusions at that site explicitly disclaimed)

That being said, Congress’s reticence to overstep their bounds as well as various courts’ willingness to check that tendency have both waned considerably in the latter half of the last century. The New Deal gave Federal Government a popular mandate to take extraordinary measures of control over the economy and regulation of the national character. It is my contention that as a nation that respects the rule of law, we ought to hold our government to the bounds established by the Constitution and not ignore it in the sake of expediency.


Of course, none of this would have registered without a trigger from Law School. As part of Constitutional Law, quite definitely my favorite of this semester, we are discussing the Commerce Clause of Article I, Section 8, which is easily the most used (abused) of the powers granted to Congress in justifying legislation. The case in question is United States v. Lopez, a 1995 decision that invalidated the Gun-Free School Zones Act of 1990. This act made it a federal criminal offense to carry a gun within 1000 feet of any school. The government’s position in this case is that because Congress could have a rational basis in finding that gun possession in school zones could substantially affect interstate commerce, they had the power to pass the law. My first thought was that the link between gun possession and interstate commerce is tenuous at best, but there is a fairly considerable amount of case law supporting broad deference to Congressional findings of fact in what affects interstate commerce. I agreed with the court’s holding, and this sparked a debate between me and some more liberal classmates of mine about what Congress should do. It is my liberal friends’ contention that because our country has industrialized and capitalized in such a fearsome manner, that the original position of the Founding Fathers that Congress should be denied a general police power has been rendered irrelevant. I am not so sure. It is fairly clear to me that our government is a paradox in that it both guarantees liberty while attempting to take it away when possible. The fact is that regardless of the evils done in the name of State’s Rights, Federalism remains a valuable check on the powers of government: by limiting the power of the Federal government, which is so far removed from normal life, the framers intended that the bulk of the nastiest regulation be done by state and local governments, which are on a smaller scale and closer in proximity to the subjects (us) of that regulation. The guarantee that government is only allowed to do what the Constitution allows it to do is critical to the rule of law: exercise of power not authorized is tyranny.



Why would Congress go beyond their prescribed limits? The answer lies, in part, with dealing with a reactionary Supreme Court that (as I’ve pointed out before) sometimes gets cases wrong.


I’ll pick up here tomorrow.

Diversion

A Canadian company is planning on suing under NAFTA because of our government’s unnatural and counterproductive war on Cannabis. Kenex, ltd., is a company that sells hemp products and is thus being barred access to the US market.


The SI cover jinx has some evidentiary support.


The War on Terrorism has affected many aspects of our culture. Yes, that includes Elmo.

Back from the brink

After a year and a half of near perfect health, Mag and I have been suffering through a nasty cold recently. It’s funny because the weather here has been outstanding. In fact, I have complained twice about the weather this winter, and both times there has been a prompt warm up afterwards and I’ve felt a little silly. In the midst of my cold I actually had an interview for a job. Yes, a summer position at Faegre & Benson, a prominent Minneapolis firm. This would be pretty darn spiffy job, and not just because the pay is handsome. Spending time at a firm noted for its litigators would be a great experience. However, the job market is extremely tight and the partner who interviewed me told me in fairly certain terms that I wouldn’t likely be able to get one of the two jobs they have for first year students. This puts me back to square one, but I am not discouraged.

The other reason I doubt I will get the job is because they asked for my undergraduate transcript. I don’t know how the rest of you did, but I wasn’t paying nearly as much attention to my school work as I was to other types of education when I was there. Courses that were in my major (International Affairs) I did extremely well in. Other courses I did not. It’s a funny thing that I took German in high school because I knew most schools (like Lewis & Clark) didn’t accept Latin as a foreign language for the purposes of meeting the core graduation requirements. Yet, if I had taken Latin it definitely would have benefited my further education -- and German was my worst grade of my life at college. Such is life.

A note for my readers and others who find their way here: perhaps my number one all time search request is from people looking for a translation of "Tunak Tunak Tun," a (superior) song by Daler Mehndi. According to this Hindi translation page it has no real meaning. They are simply syllables that match the beat. Sometime else I'll post my own silly translation of what it sounds like he's saying.

Lynx

Economic instability that stems from a catastrophe may seem like a product of an interconnected modern world, but archaeological evidence indicates that the death of Alexander the Great had major effects on the trading markets of the day -- some 2500 years ago.


The best TV contract by any professional basketball team owner was made by owners who no longer own their team.


Finally, calibrate your monitor.

Blue, Yellow, Clear

Second semester is getting into full swing now, and we’ve begun to ease into the new routine. The week now works up to a Wednesday peak, with all five classes meeting that day. As grades have trickled in, I have been re-evaluating my standing as a student and a person and everyone else around me, too. My observations:
1. My grades have been good. I am a perfectionist in such matters, so I would have liked straight 16s, but that doesn’t typically happen. Nonetheless, I think that 90% of students would be happy with what I have received so I can’t complain. (A brief note: the U of M grades on a 1-16 scale, with 16 being equivalent to an A+ on a normal grade scale)
2. I am fat. I have been steadily gaining weight since the end of last summer (canoeing season) and I feel out of shape and tubby. I carry my weight well so it doesn’t look it, but I am on the road to significant obesity and need to correct it.
3. Humility is not overrated. Law students are competitive, but if you are nice people root for you and congratulate you when you do well. I have observed other students that are not humble and have made some enemies by flaunting excellent grades and being obviously dismissive of those that they don’t consider smart.
4. The cold, not the snow, is why Minnesota winters are nasty.
5. It’s good to do things that aren’t law school related.

I’m sure I have more observations, but I can’t think of any right now. To deal with problem number 2, I have begun a program of swimming at the U recreation center. The natatorium there is a first-class facility, and since it is free to me as a student, I would be a serious moron to not take advantage of it. Back in high school, I was (the worst swimmer) on the swim team and thus I know how to do the strokes and how to construct a workout. After only a few sessions I already feel better about myself.

To deal with problem number 5, I cooked up a batch of beer today. Before Jerry died, I brewed several rounds of homebrew and got fairly good at making the yeasty beverage. This beer will be a dunkelweizen, or a Weiß bier dunkel, as it is sometimes known. A dark wheat beer, this should be fairly malty, lightly hopped, and with a thick, deep flavor. At an original gravity of 1.052, it will pack a wallop when done sometime around my birthday (March 19, since you asked).

As for today’s title, my new goggles are a deep blue shade. My sunglasses, given to me by Mom, are yellow, and my glasses are clear. Thus I feel that my current routine consists of moving from the outside (yellow) world to the indoor (clear) world and then to the pool (blue).

Links

I like Anil, but his mean spirited attack on those who like LOTR made me lose some respect for him. For those who, like me, loved it: a list of deleted scenes to look for when it hits DVD.

This was kicked around a few months ago and I never blogged it: still pictures from the never-aired Justice League of America pilot from the 70s. That’s right. The super friends. Live action. You know you want to see it.


You may recall that I linked old photographs several times last year. Here are some more in the same vein: galleries from the American Daguerreotype society. An example (warning: very large file).

Never too early…

This winter has been extremely mild and warm, with precious little snow. On one hand, that’s really bad, because Mag and I have been saving some money for snowshoes and we have little need of them now. There is not enough snowpack to do any winter recreation around here and the temperatures have been above freezing for most of this week. On the other hand, at least it’s been comfortable here. The other thing I’ve been thinking about is a possible early start of canoe season—if there isn’t much ice on the lakes it will take less to thaw in the spring. With that in mind, I’ve been pondering the places in Minnesota where a canoe is the ticket to the best camping possible. Here’s a checklist of campsites I’ve got my eye on for next summer. Each of the following sites has at least one canoe-in campsite where you load all of your equipment into your boat and paddle to a remote campsite.

• Bear Head Lake. We went here twice last summer (map). It has two very nice sites in different bays of the lake. Nearly four hours away, it’s located on the road to Ely.


• Banning State Park. We didn’t go here last year; it has a canoe campsite on the Kettle river downstream from the put-in point (map). Some rapids mean that we might not choose to go here. We like the easier trips.


• Charles Lindbergh State Park has a campsite upstream Pike Creek from the put-in near where the creek feeds into the Mississippi. This looks promising (map).


• Glendalough looks neat; there are a series of glacial lakes that intersect and the middle one has a site on the other side from the put-in. About three hours to the west, we didn’t go here last year (map).


• Lake Bronson is about as far away in Minnesota as we could go, in the Northwest corner. However, Mag and I really want to visit here because the canoe-in sites are on an island (map.) We are thinking about going here for Memorial day.


• Maplewood is where we went first last year. It’s about a three hour drive west from the Twin Cities, and has a couple of first class sites to choose from (map). We will go here for sure this year.


• St. Croix State Park on the St. Croix river has a campsite or two. This would be a fun place to do a camping trip on a piece of a big river (map).


• Savanna Portage is a park that deserves a second look at a more favorable time of year. We visited here at the height of summer last year and the flies and heat were enough to make it not so much fun. However, the trails are top notch and the campsite was very cool (map).


• Scenic State Park was the last one we visited. You may recall I blogged that at the time. This was probably my favorite from last year (map).


• Rice Lake is the closest on this list, at about a one hour drive away. The canoe-in site has five campsites clustered around it, so we probably won’t go here in prime camping season. However, if it remains mild we may risk a March or early April jaunt down here to get us going this year (map).

I can’t wait for spring. Too bad we haven’t had winter yet.

It’s (not) good to be the king

An interesting article on how Prince William might refuse the crown. The way the author makes his case, I certainly wouldn’t want to do it either.

William is asked to give up his privacy, his sexual, religious and political freedom, any career he might want to pursue, any life he might lead - and for what? For the glory of one day being King? A glory that consists of, um, unveiling statues and chuntering about in carriages, waving like a buffoon to an increasingly resentful and chippy public? Would you do it?

From the stupendous Linkmachinego, a British blog that has only gotten better over the year and a half I’ve read it.

old mistakes

You'd think after a year and a couple of months of blogging that I'd be able to remember how to do this, right? I mean, early on I discovered that it's best to do your daily entries in a word processor because of auto-save functions and the ability to retrieve your work if anything goes wrong. Yet, today, I had about two thirds of an extremely nicely thought out post on Enron and campaign finance and poof! No more. Maybe next week. I will say that I'm a little bit sheepish that I complained yesterday about the lack of coverage on the debacle and then that turned out to be the day that every news outlet decided it was a worthy enough story to feature.

How's school, you ask? It's interesting. Our constitutional law professor is extremely smart if not terribly interested in fostering discussion (notable quote: "Jefferson was America's Pol Pot. If it was up to him, you and I would be shoveling manure on some farm right now."). Our criminal law prof is at the other end of the spectrum; he's also very intelligent but seems more interested in getting a discussion going than instructing us at this point. Property law is its own animal. And civil procedure, while dull, is necessarily going to be the most useful of any of the classes so I feel a special need to be attentive and do well in it.

These entries are likely to be shorter than they used to be, especially if I can't remember to save my work effectively.

shirt off your back?

Actual email I've received. Initially I was flattered, then the strong smell of rat flooded my nostrils.

Hi Nathan,

Great Blog, although the legal talk is out of my realm. Ironically, I found it
by searching for Oklahoma football talk at Daypop.com. Admirable the way you've
kept the Sooner talk to a minimum. Great to finish the season 11-2, though we
could have done better...Let's hope that the QB play (Brent Rawls or Jason White
if we're lucky) is better next year.

But to the point, I was wondering how you created the sidebar with the links on
your page. Would you be able to send me a copy of your template?

Thanks, (omitted)

Now, whoever you are, I make no claims as to your bad intentions, although it does seem strange that to get a sidebar you would need my entire template. The most basic blogger standard templates have sidebars; why would you need mine? And yes, the Sooners are going to do great next year. We even got to keep Bob Stoops!

lack of energy

If the media is liberal, why aren’t they persecuting Bush for the Enron debacle? To review (last year‘s bloggage here), the largest contributors to George W. Bush’s campaign were Enron executives, including Kenneth Lay, who has been described as his number one career patron. With the collapse of Enron, and questions of shady dealings in the last days before bankruptcy, the lack of timely investigation by Republicans ought to sound alarm bells. Here’s hoping that this scandal dogs Bush like the boondoggle of Whitewater followed Clinton.

web life

There is definitely a culture of the internet; I was very much inculcated into it prior to law school and no longer follow the same excellent web sites. One of my favorites from before is PCJM, the former MNBLOG now based out of Seattle. She linked this update page for couples featured on “A Wedding Story,” that accursed show on TLC. Back when planning our wedding Maggie used to watch that show and I would sometimes peek in (only to make fun of the show, of course). I always used to joke that any updates in the future would start with voice overs “and that’s when I FIRST knew I hated her and this damn wedding was a mistake…” I haven’t seen any such revelations yet, but this bride died over the summer, which more or less extinguishes my sense of schadenfreude as it relates to that show.


Finally, if you haven't seen Debater's Corner recently, you're missing out. Jeff posts great links about current events for debaters and anyone else who is smart enough to handle the knowledge.

sneaking back

Sean, I love ya, but you're a geek. Admittedly, I've seen the Fellowship of the Ring thrice myself, but you're taking it too seriously, I think. The following is a quote from his weblog.

This review comes to you courtesy of me sitting in ‘FotR’ the second time with my Palm Pilot light on, hastily punching in notes on the pop-up keyboard. I gave myself a head-ache, as you might imagine, but it’s worth it for you, faithful reader!

What can I say about it? It's probably the best movie I've seen in five years, and that's as only a partially satisfied customer. Nice job, Peter Jackson. I really need to get together with Sean and talk about Tolkien and God. There are plenty of crossovers there as well; Tolkien was a Catholic and infused many of his writings with a near-deist conception of an all powerful creator with little power or volition to intervene. The creation story in the beginning of The Silmarillion is reminiscent of Paradise Lost, especially the part about the rebellion in heaven.

What else? Finals, yes. Law school is brutal in that you go on for months and months with no grades or ranks or feedback on your progress in any way, shape, or form, and then in the span of two weeks you take a series of finals and that's all. The grades now will trickle out from now until February; the one I received already is extremely positive. While I'm waiting, there are the new classes that have begun; Constitutional Law, Property, and Criminal Law to go with another term of Civil Procedure. These classes seem a lot closer to what I expected law school would be like. Two of the first cases we're reading are John Marshall cases. As I've previously pointed out, I have considered that Mr. Marshall was an overrated hack with many damaging decisions, but nothing reinforced that opinion more than Johnson v. M'Intosh, which examined the validity of the title of lands of Native American tribes. Johnson is decided on, among other things, a tracing of title back to the European doctrines of discovery and conquest. I can understand the determination by Marshall that the land appropriated by the United States government was valid; to do otherwise would have thrown the whole system of American property into jeopardy. What I fail to understand is how Marshall can at the same time recognize that the Native American tribes have a valid right to possess their lands and that the United States has the right to extinguish that right. After all, virtually from the beginning European colonists recognized that Native Americans had a right to be here (even if recognizing that through a fog of cultural imperialism and racism):

The whole earth is the lords Garden & he hath given it to the sonnes of men, wth a general Condicion, Gen: I.28. Increase & multiply, replenish the earth & subdue it. . . . And for the Natives of New England they inclose noe land neither have any settled habitation nor any tame cattle to improve the land by, & soe have noe other but a naturall right to those countries Soe as if we leave them sufficient for their use wee may lawfully take the rest, ther being more than enough for them & us . . . (Emphasis mine; quote from Governor Winthrop of the Massachusetts Bay Colony, as cited in the link above)

Yet we never did leave their share. I have often criticized those that critique history and politics as not offering an alternative, and I mean not to make the same mistake. As of 1823, Marshall could have recognized that the already settled lands of the United States were ours by way of conquest and he would be correct in fact, if not necessarily by right; for since when is title by conquest subject to that limitation? However, by holding that the First Nations' land titles were not cognizable in American courts of law he did a grave disservice to our credibility as a country; there was a good opportunity to object to our constant habit of reneging and abrogating treaties with these people that were here longer and had more right to the land than we did, and Marshall failed to do it. I'll surely do a "John Marshall Greatest Hits" soon.

and then

I enjoy reading Stephen den Beste's weblog on various intellectual issues, and often agree with him. Yet I couldn't really buy his defense of why the US needs to hold an arsenal of more than 2000 nuclear weapons. As far as I'm concerned, our nuclear arsenal is nothing more than a colossal waste of money at this point. We should ask ourselves, do we ever mean to use these things? I feel confident that the answer to that is no. The moral and political implications mean that no leader would bring him (or her)self to use them. Second, do they deter anything? A good answer would be that they certainly deter a rational actor, and that answerer would point to forty years of experience with the Cold War to prove that. Admittedly this is so. Yet; there is no Cold War. No actor on the world stage would ever use them, at least not a rational one. If an irrational state (or non-state) would use them on us, is that threat deterrable? If not, then there is also no point in keeping the nukes unless for retribution, and it seems hardly worth it. The fact that one ex-Soviet suitcase bomb could be purchased, smuggled in, and then detonated hardly means that we should destroy country X for the sins of a few dozen; if we can't use our nuclear weapons in the most likely scenario for their use, when could we? The fact is that any country rational enough to be deterred is rational enough to not use nuclear weapons regardless of deterrence. At that point, we should unilaterally disarm ourselves of nuclear weapons.

It's good to be back.