Comments on: Federalism Check

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By: James N. Markels

James N. Markels — Sat, 06 Sep 2003 01:20:10 +0000

You mean Wickard v. Filburn. And yes, I agree that it was ridiculous for the Court to argue that the act of not engaging in commerce is commerce because a buyer who doesn’t purchase means less money for the seller. There’s a simple logical fallacy there, though: If commerce means both engaging in commerce and not engaging in commerce, the term loses all meaning, which is antithetical to the point of having a word in the first place. The decision was simply an artifact of a time when the Court wanted the government to be able to regulate everything. That’s not the word’s fault.

I don’t know that a libertarian would be a fan of letting the feds stand by while a state perpetuated a cruel/barbaric penal system. In fact, I think that most libertarians are supportive of the incorporation doctrine and of efforts to enforce the protections in the Bill of Rights against the states. What’s the better alternative?

By: Saxdrop

Saxdrop — Fri, 05 Sep 2003 21:58:14 +0000

Noen of these reconciliations addresses whether it SHOULD be a federal issue, only if it could. Certainly, with the continually expansive Commerce Clause interpretation (extending, believe it or not, well before the New Deal court), anything could be justified as within federal purview.

See: Wicker v. Fliburn. Though libertarians love to point out the absurdity of federal authority applying to a singular wheat farmer growing for personal use under “Commerce Clause” pretense, its ambiguity probably could apply. One, the growing laws did not apply singularly to that farmer but to all farmers, even those growing for personal consumption. All farmers taken together who are not buying off the interstate market affects interstate commerce, thus we have federal purview.

And for discussion of “necessary and proper,” see 40 years of Footnote 4 discussion. Randy Barnett may be a good overview.

I recently read an essay by Gene Healy (I believ a version of it appeared in Liberty, but I’m not sure) that admonishes the libertarian centralism of Roger Pilon, Randy Barnett, and Clint Bolick. As much as I am a strict constitutionalist, I find myself floating ever further from the banks of federal protection of the presumption of liberty.

Sorry for length.

By: shane

shane — Fri, 05 Sep 2003 21:46:59 +0000

Prison rape is something this country needs to address. Many of these victims will be released back into our society. While lots of people think prisoners deserve this sort of thing, do we really want them coming out of prison far worse off than they were when they entered?

By: Jesse Walker

Jesse Walker — Fri, 05 Sep 2003 20:36:22 +0000

Furthermore, the legislation doesn’t override state authority, aims only to help enforce existing laws, and does all this in a context of pre-existing federal aid to state prisons. Doesn’t sound like a problem for federalists to me.

By: raj

raj — Fri, 05 Sep 2003 12:49:30 +0000

State prison officials allowing–or not punishing–state prison rapes could also be classified as violations of 18 (I believe it is) USC 1983 (violations of civil rights by officials acting under color of law).

By: Julian Sanchez

Julian Sanchez — Fri, 05 Sep 2003 09:05:45 +0000

I’ll second the 8th Amendment point, and add that there’s probably also an argument to the effect that, since prison rape isn’t supposed to be part of the “official punishment” for any crime, there’s probably a 5th/14th amendment due process case to be made as well if prison officals aren’t doing all they can to prevent these rapes.

By: The Curmudgeonly Clerk

The Curmudgeonly Clerk — Fri, 05 Sep 2003 06:07:55 +0000

James is correct. Prison rape, under the right conditions, is a violation of one’s Eighth Amendment rights. The Fourteenth Amendment renders the Eighth relevant to state prisoners. See, e.g., Langston v. Peters, 100 F.3d 1235 (7th Cir. 1996) for a claim that was unsuccussful on the facts. So there is no federalism gripe here, unless one thinks that the incorporation of the bulk of the Bill of Rights via the Fourteenth Amendment is itself mistaken.

By: Josh

Josh — Fri, 05 Sep 2003 01:22:33 +0000

Brian, you beat me to it by seconds.

I wonder what, exactly, they plan on doing?

10 to 1 they send in the clergy to preach about the evils of homosexuality.

By: Brian

Brian — Fri, 05 Sep 2003 01:19:31 +0000

Some states actually outsource their prisons to outer states. Interstate commerce regulation WOULD apply in that particular case.

By: James N. Markels

James N. Markels — Fri, 05 Sep 2003 01:02:01 +0000

One could argue that it is “cruel and unusual punishment” in contravention of the 8th Amendment if state prisons have a rampant prison rape problem. Then, through the incorporation doctrine, you have Congress being able to enforce it under the “appropriate legislation” section of the 14th Amendment.

By: Skip Oliva

Skip Oliva — Fri, 05 Sep 2003 00:13:13 +0000

Rehnquist’s views in Morrison are interesting given his opinion this past Term upholding the use of the Fourteenth Amendment to abridge state sovereign immunity over the Family and Medical Leave Act. The Chief wrote that stereotyping women as mothers was sufficient enough to warrant federal legislation. How he reconciles that view with Morrison I couldn’t say.