Why would the lawyers choose this hill to be the hill they live and die upon? I feel like you're going to have a tough time garnering sympathy for this specific case.
Protecting civil liberties generally means defending unsympathetic characters. They always are chosen first, and they must be defended before the precedent is set. By the time encroachers move on to sympathetic characters, it's too late. The encroachment has been normalized, it is in fact normal, and the liberty was lost already.
That's not my original thought, but I can't find the original quote. I think it's from the ACLU, from some occasion when Jewish lawyers were defending free speech of neonazis or something.
Is the case you're looking for. On its face, ACLU defended Neonazis.
A deeper reading is that the ACLU defended the first amendment's rights of speech and of peacably assemble and redress grievances.
History: Skokie was a destination for many Jewish peoples who came from the death camps in Germany in WWII. Choosing this site for the march was intentional. However, the march wasn't actually done.
I initially thought the EFF was suing for publicity, knowing that the mandatory arbitration provisions and class-action waivers were likely to stand.
However, they do have some legs to stand on, since California's supreme court ruled in 2017 that injunctive relief could still be sought under an arbitration agreement. [1]
Of course it's likely that this ruling wouldn't be held up by the Supreme Court, which has consistently upheld/defended arbitration agreements, but one can dream.
It is one of the greatest blunders of the constitution. Nowhere near enough thought went into limiting the power. Granted, the commerce clause is almost the whole purpose of the federal government, but it's nonetheless far too broad.
Plenty of stuff isn't interstate commerce. The expansion of Federal Commerce Clause powers is the result of a more expansive application of the Necessary & Proper Clause.
Which is why the recent FAA decisions are absurd on their face. Even if you agreed with the 1940s era precedent expanding Federal powers it's still trivial to reject application of the FAA to most commercial transactions. The FAA expressly limits itself to interstate commerce. And an expansion of federal powers doesn't in any way, shape, or form require or even suggest that a court should reinterpret the settled application of previous statute, particularly when the text, intent, purpose, and history of that statute was quite obviously circumscribed to a particular class of commercial transactions.
Almost everything can be interpreted as interstate commerce (and is!) I believe what the GP is saying is that, in light of this, a more prescient constitution would have restricted Congress's power to regulate interstate commerce, breaking that down into many small powers and no default blanket assumption of power beyond those.
Example: The growing or even selling of marijuana is not interstate commerce. No court has ever said it constitutes interstate commerce. It's only been deemed to possibly substantially effect interstate commerce, except when the particular product or participants are actually crossing state borders.[1] But that interpretation alone doesn't get you to the interpretation that the Federal government can regulate it; it's literally two steps divorced from interstate commerce. It's the Necessary & Proper Clause that was used to encompass activities involving marijuana.
Saying that everything can be interpreted as interstate commerce is misleading, and if it intended as a critique of constitutional law has the effect of suggesting that nothing can actually be done to change it as a practical matter, when that's just not the case. The Necessary & Proper Clause by its nature provides poorly defined boundaries, which means it's far easier to limit extensions than if the definition of interstate commerce had literally been made expansive--which, to reiterate, has remained much the same since the expansion of Federal powers began in the late 19th century and arguably even since the 18th century.
I grudgingly agreed with the argument that Obamacare was a valid use of Federal Commerce Clause power (as extended by the Necessary & Proper Clause) because of the precedent of Gonzales v. Raich from 2005 when two conservative justices agreed with the logic above with four other liberal justices. But Gonzales was new case law. At the time they could have legitimately and reasonably drew a line that said such activity was too far removed from interstate commerce. But they didn't. Apparently even for a justice like Scalia they'd prefer to complain that "everything is interstate commerce" rather than draw meaningful--and obvious--distinctions. But Scalia (along with Kennedy) didn't, not because it would overturn precedent--it was an unanswered question--but because he didn't want to throw the FDA and the War on Drugs in particular into disarray.
So when Obamacare came around and Scalia was apoplectic about Roberts siding with upholding the law (albeit on a tax theory), all I could do was roll my eyes.
My point being: let's be honest and fair about this stuff. By pretending that these extensions of Federal power are a fait accompli, then that's precisely what we'll get. Not because it's true, but because we're just being lazy. Even if one is committed to existing precedent, there will come a day when we see pressure to extend Federal power further, probably in entirely unpredictable ways. Honesty and vigilance will matter.
[2] AFAIU, using telecommunications in the transaction is a separate crime. It's not the buying/selling, per se, but the use of interstate infrastructure to conspire to buy/sell.
It is one of the greatest blunders of the constitution.
Everything is interstate commerce.
Yes and yes. Unfortunately that ship sailed a long long time ago.
E.g. in 1942 the US Supreme Court held in a unanimous opinion that a farmer growing wheat to feed his own animals on his own farm could be regulated as interstate commerce.
More than 50 years later, the Court walked that back, very slightly. But the decision in 1995 was 5-4. This more recent decision would doubtlessly upset many on HN once they learn that it limited the ability of the US government to ban possession of handguns near schools.
> It limited the ability of the US government to ban possession of handguns near schools.
Only in the same sense that the US government is limited in its ability to declare that marijuana is illegal when individual states consider it legal, no?
In both cases, it's because the enforcement of any such law would happen at the state (or municipal) level, so in practice the state gets to decide whether the practice is de-facto illegal or de-facto legal. (Where by "de-facto legal" I mean "legal unless you did it in front of a federal agent, which is a vanishingly rare circumstance to be in.")
The federal government was quite limited for the vast majority of its history. It wasn't until the New Deal where the president and congress teamed up and threatened to pack the court if they didn't play ball that the whole limited federal government, but strong state government thing became a relic of the past.
Precedent for New Deal decisions can be traced directly back to the Mann Act, which included all-encompassing language like "to aid or assist in obtaining transportation" and "to induce, entice, or compel". See https://archive.org/stream/283075-the-mann-act-1910/283075-t...
Actually, IIRC you can go back further to the fugitive slave laws to find precedent where activities only incidental to interstate commerce were deemed to be reachable by Federal powers.
I say this not to defend it, but to point out that the history is complicated. And that there's not a simple liberal vs conservative dichotomy. Historically conservatives have supported expansive morality and pro-business laws and liberals expansive social programs and protections going back a century before the New Deal, and each used precedent set by the other. (Small 'c' conservative and small 'l' liberal because linkages to particular parties and political interests gets messy quickly, especially the wider the window of time.)
That is not a blunder of the Constitution itself, but rather the result of being run under a hostile interpreter. That cannot be prevented, only mitigated.
The real blunder was not focusing on ways to escape undesirable outcomes justified by the Constitution. A real simple escape hatch for interstate commerce would be to say that the federal government could only intervene if the specific states could not agree themselves.
The Civil War was one of the best chances at pushing back against generally accreting federal power. Had it gone the other way with states being able to withdraw from the union, nonsensical tripe like Wickard v Filburn could have never stood. But like every other tooth in the totalitarian ratchet, we gained an immediate good at the expense of a long term cost.
It was passed in 1925, long before the seminal cases of National Labor Relations Board v Jones & Laughlin Steel Corporation (1937) and Wickard v. Filburn (1942) expanded Federal powers under the Commerce Clause. But note that the expanded powers were a consequence of the effect of the Necessary & Proper Clause; they didn't expand the definition of "interstate commerce", per se.
It took an extremely activist Supreme Court, more than half a century later, that deliberately misread the text, intent, and purpose of the FAA, not to mention upend significant case precedent, to apply the FAA to all commercial transactions. They did it over more than a decade with a clearly incremental strategy. Most recently, they applied it to all employment agreements except for the railroad and maritime exclusions in the FAA, which is so perverted--because those exclusions are patent evidence that the FAA was intended to be limited to interstate commerce--that it boggles the mind such judges could even consider themselves conservative (small 'c'). Frankly it almost seems like they're doing it out of spite; that is, taking 1940s era liberal expansion of Commerce Clause powers to pursue a politically Conservative (big 'C') agenda.
30 comments
[ 2.4 ms ] story [ 100 ms ] threadThat's not my original thought, but I can't find the original quote. I think it's from the ACLU, from some occasion when Jewish lawyers were defending free speech of neonazis or something.
Is the case you're looking for. On its face, ACLU defended Neonazis.
A deeper reading is that the ACLU defended the first amendment's rights of speech and of peacably assemble and redress grievances.
History: Skokie was a destination for many Jewish peoples who came from the death camps in Germany in WWII. Choosing this site for the march was intentional. However, the march wasn't actually done.
However, they do have some legs to stand on, since California's supreme court ruled in 2017 that injunctive relief could still be sought under an arbitration agreement. [1]
Of course it's likely that this ruling wouldn't be held up by the Supreme Court, which has consistently upheld/defended arbitration agreements, but one can dream.
[1]https://www.drinkerbiddle.com/insights/publications/2017/04/...
Everything is interstate commerce.
Which is why the recent FAA decisions are absurd on their face. Even if you agreed with the 1940s era precedent expanding Federal powers it's still trivial to reject application of the FAA to most commercial transactions. The FAA expressly limits itself to interstate commerce. And an expansion of federal powers doesn't in any way, shape, or form require or even suggest that a court should reinterpret the settled application of previous statute, particularly when the text, intent, purpose, and history of that statute was quite obviously circumscribed to a particular class of commercial transactions.
Saying that everything can be interpreted as interstate commerce is misleading, and if it intended as a critique of constitutional law has the effect of suggesting that nothing can actually be done to change it as a practical matter, when that's just not the case. The Necessary & Proper Clause by its nature provides poorly defined boundaries, which means it's far easier to limit extensions than if the definition of interstate commerce had literally been made expansive--which, to reiterate, has remained much the same since the expansion of Federal powers began in the late 19th century and arguably even since the 18th century.
I grudgingly agreed with the argument that Obamacare was a valid use of Federal Commerce Clause power (as extended by the Necessary & Proper Clause) because of the precedent of Gonzales v. Raich from 2005 when two conservative justices agreed with the logic above with four other liberal justices. But Gonzales was new case law. At the time they could have legitimately and reasonably drew a line that said such activity was too far removed from interstate commerce. But they didn't. Apparently even for a justice like Scalia they'd prefer to complain that "everything is interstate commerce" rather than draw meaningful--and obvious--distinctions. But Scalia (along with Kennedy) didn't, not because it would overturn precedent--it was an unanswered question--but because he didn't want to throw the FDA and the War on Drugs in particular into disarray.
So when Obamacare came around and Scalia was apoplectic about Roberts siding with upholding the law (albeit on a tax theory), all I could do was roll my eyes.
My point being: let's be honest and fair about this stuff. By pretending that these extensions of Federal power are a fait accompli, then that's precisely what we'll get. Not because it's true, but because we're just being lazy. Even if one is committed to existing precedent, there will come a day when we see pressure to extend Federal power further, probably in entirely unpredictable ways. Honesty and vigilance will matter.
[2] AFAIU, using telecommunications in the transaction is a separate crime. It's not the buying/selling, per se, but the use of interstate infrastructure to conspire to buy/sell.
Everything is interstate commerce.
Yes and yes. Unfortunately that ship sailed a long long time ago.
E.g. in 1942 the US Supreme Court held in a unanimous opinion that a farmer growing wheat to feed his own animals on his own farm could be regulated as interstate commerce.
https://en.wikipedia.org/wiki/Wickard_v._Filburn
More than 50 years later, the Court walked that back, very slightly. But the decision in 1995 was 5-4. This more recent decision would doubtlessly upset many on HN once they learn that it limited the ability of the US government to ban possession of handguns near schools.
https://en.wikipedia.org/wiki/United_States_v._Lopez
A more recent evolution of this (as Matt Levine likes to frequently point out) is "everything is securities fraud".
Only in the same sense that the US government is limited in its ability to declare that marijuana is illegal when individual states consider it legal, no?
In both cases, it's because the enforcement of any such law would happen at the state (or municipal) level, so in practice the state gets to decide whether the practice is de-facto illegal or de-facto legal. (Where by "de-facto legal" I mean "legal unless you did it in front of a federal agent, which is a vanishingly rare circumstance to be in.")
Actually, IIRC you can go back further to the fugitive slave laws to find precedent where activities only incidental to interstate commerce were deemed to be reachable by Federal powers.
I say this not to defend it, but to point out that the history is complicated. And that there's not a simple liberal vs conservative dichotomy. Historically conservatives have supported expansive morality and pro-business laws and liberals expansive social programs and protections going back a century before the New Deal, and each used precedent set by the other. (Small 'c' conservative and small 'l' liberal because linkages to particular parties and political interests gets messy quickly, especially the wider the window of time.)
The real blunder was not focusing on ways to escape undesirable outcomes justified by the Constitution. A real simple escape hatch for interstate commerce would be to say that the federal government could only intervene if the specific states could not agree themselves.
The Civil War was one of the best chances at pushing back against generally accreting federal power. Had it gone the other way with states being able to withdraw from the union, nonsensical tripe like Wickard v Filburn could have never stood. But like every other tooth in the totalitarian ratchet, we gained an immediate good at the expense of a long term cost.
It was passed in 1925, long before the seminal cases of National Labor Relations Board v Jones & Laughlin Steel Corporation (1937) and Wickard v. Filburn (1942) expanded Federal powers under the Commerce Clause. But note that the expanded powers were a consequence of the effect of the Necessary & Proper Clause; they didn't expand the definition of "interstate commerce", per se.
It took an extremely activist Supreme Court, more than half a century later, that deliberately misread the text, intent, and purpose of the FAA, not to mention upend significant case precedent, to apply the FAA to all commercial transactions. They did it over more than a decade with a clearly incremental strategy. Most recently, they applied it to all employment agreements except for the railroad and maritime exclusions in the FAA, which is so perverted--because those exclusions are patent evidence that the FAA was intended to be limited to interstate commerce--that it boggles the mind such judges could even consider themselves conservative (small 'c'). Frankly it almost seems like they're doing it out of spite; that is, taking 1940s era liberal expansion of Commerce Clause powers to pursue a politically Conservative (big 'C') agenda.
No way would I have consented to them selling my location data.
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