The commerce clause in the US Constitution give Congress power "regulate commerce with foreign nations and among the several States." Before the 1942 reading of this clause, the Federal government was very limited on what laws it could impose by the 10th ammendment which states, "The powers not delgated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
After 1942, all a lawmaker needs to do to "override" the 10th ammendment is to show how a law will affect commerce between states. There are not many restrictions that won't somehow affect commerce between states so this makes the scope of the commerce clause limitless.
Michael MCConnell once wrote to show the absurdity of overreaching federal law, "Assume there are only two states, with equal populations of 100 each. Assume further that 70 percent of State A, and only 40 percent of State B, wish to outlaw smoking in public buildings. The others are opposed. If the decision is made on a national basis by a majority rule, 110 people will be pleased, and 90 displeased. If a separate decision is made by majorities in each state, 130 will be pleased, and only 70 displeased. The level of satisfaction will be still greater if some smokers in State A decide to move to State B, and some anti-smokers in State B decide to move to State A.
I read about this concept in Mark Levin's "Men in Black". I fell in love with the 10th ammendment, and I hope for its return, even if it means that the pledge is recited in some states and not others.
1 comment:
John—
I've really been realizing some similar ideas lately. For all I can be frustrated with our political process, I began to see how much wonderful possibility there is with what it's designed to be. No necessarily what it is used like now, but what kinds of things are possible within the same structure, particularly if we see all the nuances and compromises that have been worked out through history. (You've already read my blog post on The American Dream.) What if we could really have the same kind of debates today that went into some of these decisions? I'm sure was plenty of partisan bickering then, too, but I suspect one could make much clearer rational arguments when one isn't trying for the best sound bite on the evening news.
Anyhow, I agree that it would be wonderful if states (and the people) could truly regain the rights they (apparently) once had. Imagine if we had not only the pledge in some states and not in others, but even some states far more secular and others far more Christian. Part of me hates to advocate something that would support in any way unGodly morals. But I suspect that God values—and I'm quite certain our founders valued—obedience from one's heart and conscience rather than from compulsion. What if we could really have a culture where solid argument was valued and various viewpoints were respected rather than demeaned?
Of course, it is easy to fall in love with a bit of a pipe dream that forgets about our human sin and frailty. I still think it would be an improvement, though.
The tough thing is always deciding what goes where, and I haven't read my copy of the Constitution carefully enough to decide. Abortion? Marriage? Murder? There certainly have to be some national laws...I dunno.
Thoughts?
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