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- Xref: sparky misc.legal:23099 alt.politics.usa.constitution:1533
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- From: thf2@ellis.uchicago.edu (Ted Frank)
- Subject: Re: Making law (was: Shouting "Movie!" at a Fire Station)
- Message-ID: <1993Jan22.034957.17783@midway.uchicago.edu>
- Sender: news@uchinews.uchicago.edu (News System)
- Reply-To: thf2@midway.uchicago.edu
- Organization: University of Chicago
- References: <1993Jan20.062214.4395@ucsu.Colorado.EDU> <1993Jan20.201107.16448@midway.uchicago.edu> <1993Jan22.024152.29134@ucsu.Colorado.EDU>
- Date: Fri, 22 Jan 1993 03:49:57 GMT
- Lines: 50
-
- In article <1993Jan22.024152.29134@ucsu.Colorado.EDU> fcrary@ucsu.Colorado.EDU (Frank Crary) writes:
- >In article <1993Jan20.201107.16448@midway.uchicago.edu> thf2@midway.uchicago.edu writes:
- >That isn't much of a definition, but you
- >have to agree that even so vauge a phrase is, to some extent,
- >constrained.
-
- Of course I agree it's constrained. Where we differ is whether judges
- are acting within those constraints.
-
- >>>...That is, I'm objecting
- >>>to "interpertations" which alter, as opposed to adding detail and
- >>>specificity to, laws.
- >
- >>I don't think anyone here would disagree with that basic assertion.
- >>You seem to be using it to implicate decisions and philosophies that
- >>aren't really implicated by it.
- >
- >Currently, the commerce clause of Article One, Section Eight
- >(perhaps the worst victim of modern interpertations), is
- >"interperted" to allow the federal government to regulate anything,
- >in any way, so long as there is even the most infinitesimal
- >connection to interstate commerce (to the extent that _everything_
- >falls into this catagory.) I can safely say this goes _far_
- >beyond "adding detail and specificity to law."
-
- So how do you interpret the commerce clause? The test that's in place
- now is because existing tests did not work and were completely dysfunctional,
- giving far too much discretion to judges. After all, how does one distinguish
- between indirect and direct effects on interstate commerce? Regulation
- on "proper" versus "improper" grounds? Can you point to a specific
- Commerce Clause decision that comes out "wrong" under the Constitution?
-
- It may be your interpretation of the Commerce Clause is plausible.
- I argue that the same is true of the Supreme Court's decisions.
-
- >>The problem here is your expansive definition of the word "alter."
- >>Anything that adds detail and specificity to laws will alter those
- >>laws, if you have a broad enough definition of the word "alter".
- >
- >"Alter" is, perhaps, a poor choice of words. However, I don't
- >think the specific word is important: There is some distinction
- >between filling in grey areas, and changing aspects of a law
- >which had previously been black and white.
-
- You're seeing "black and white" where it isn't there. What's
- the line to draw for the commerce clause?
- --
- ted frank | thf2@ellis.uchicago.edu
- standard disclaimers | void where prohibited
- the university of chicago law school, chicago, illinois 60637
-