Wednesday, October 10, 2007

Changes that we don't need

I'll still get to changes that might make sense tomorrow, but first I wanted to deal with some changes the Constitution doesn't need, though the government might.

The first is the commerce clause: "Congress shall have the power ... To regulate commerce with foreign nations, and among the several states, and with the Indian tribes." There's a legitimate debate about whether "commerce" meant economic activity or diplomatic as well as business communications, but that's not a real issue with current jurisprudence. The big problem with the commerce clause is that in 1937 the Hughes court ruled in NLRB v. Jones & Laughlin Steel Corporation (301 US 1)" that Congress had the right to force an interstate company to accept union labor at a particular plant in Pennsylvania under the commerce clause. Things got worse shortly after in Wickard v. Filburn (317 US 111) when Mr. Filburn was fined by the US government for harvesting wheat in excess of the Federal government's allotment for his own personal use. They continued this way until 1995 when, in US v Lopez (514 US 549) the Court ruled that only those things that "substantially affect" interstate commerce could be regulated as interstate commerce. Lopez brought us closer to a sane understanding of the term, but if the Convention had meant to regulate things "substantially affecting" interstate commerce, they would have said so. The Federal government may only legitimately do things which are necessary and proper for the regulation of actual interstate commerce. I could accept making all internet kiddie porn illegal because it's impossible to regulate just those internet connections that cross state lines; I can not accept making all marijuana illegal because somehow Angela Raich growing her own for medical use makes it impossible to regulate interstate sale. I should note, I don't, like some conservatives, hold the Judiciary responsible for this misrepresentation of things. Senator Feinstein was reasonably surprised when the Court struck down Congress's attempt to regulate guns in schools given the Court's treatment of it for so many years, but Congress had to pass unconstitutional legislation for the Court to affirm it.

This is not true of my second class of things that don't need to be changed in the Constitution, but do in government. That is rights the Court has created out of whole cloth (though generally using substantive due process). The earliest of these I know of (though there could certainly be earlier ones) is the right to free contract established in Lochner v New York (198 US 45). The first action after the so called "switch in time" was to strike this down. I agree with that because such a right exists nowhere in the text of the Constitution. The modern famous example of this is the right to privacy which has lead to a right to contraception and a right to abortion. If we feel we need a national right to privacy (which is a ridiculous intrusion on that states' police power, particularly given its extension to abortion. If a medical procedure performed at a commercial clinic involving probably half a dozen people once you include the paperwork and insurance is too private to be regulated, it's hard to imagine something that can be.) we should amend the Constitution to create one, but I obviously don't think we should.

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