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.