is older than it's ever been and now it's even older


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.


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.


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