Your disagreement with Clarence Thomas is noted, as is your reasoning why the Commerce Clause has been expanded beyond its original boundaries.
And disagreeing with J. Thomas makes me, what, an idiot? As for expansions, tell me: did the Founders have cellphones? No? Well then, under a strictly originalist interpretation cellphones cannot have been included in the 4th Amendment, therefore they aren't subject to the prohibition on unreasonable searches and seizures. What about computers? Since the Founders didn't have them, they aren't subject to the prohibition on unreasonable searches and seizures.
Even J. Thomas isn't a naive originalist.
Try again.
Creating a higher standard of manufacturing for out-of-state products than for in-state produced products is a negative thing?
If your object is to promote interstate commerce, the answer is yes. Do you want a concrete example of what happens when states are permitted to impose restrictions that have the effect of preventing interstate commerce? Health insurance. The McCarran Ferguson Act permits states to impose anti-competitive restrictions on health insurance, restrictions that impede interstate commerce. One huge effect of that: higher premiums and an inability to obtain the insurance you want simply because the idiots in state government think you should have more coverage than you either want or need.
If you think this is a good thing, then your opposition to most health care reform rings rather hollow.
Only if you fail to take into consideration the fact that the disproportionate tariffs assigned to automobiles manufactured outside the US has not deterred the ability of BMW, Audi, Mercedes Benz, Volvo and others to nearly dominate the luxury car segment in the US. The same would be the case with the inequity in manufacturing standards that you made the central point of your post, since it would create a de facto luxury/high performance market dominated by external products, making the locally manufactured product either give up that segment of the market, or be forced to manufacture their goods to the higher standard set in place for the out-of-state manufacturers in order to compete for it.
What? That makes little sense, but I'll give it the old college try anyways. Your first sentence is baloney. The disproportionate tariffs imposed on foreign autos
has distorted the market - it's made those cars more expensive than they would otherwise be - that is a stupid thing to do. However, the mere existence of a distortionary effect doesn't mean that the market will simply cease to exist, it means that it won't operate as efficiently as it should, that capital will be misallocated, and that we will all end up paying a higher price for goods than we ought to.
In point of fact, not only does it raise the prices on foreign cars, it raises the prices on domestic cars because the domestic makers arbitrage that tariff wedge to sell their cars at higher prices than they would otherwise command in a non-distorted market.
That is a bad thing. Nothing I have said argues otherwise and, in fact, that is precisely what the Commerce Clause was intended to prevent - the individual states imposing internal tariffs that resulted in inefficient markets and higher prices than would hold without those tariffs. The same goes for all other forms of market-distorting actions by state governments.
You seem to believe that government can manage the market, where I believe that a market less impacted by negative externalities created by government intervention is a more efficient, better market, with those benefits flowing down to the end users.
Bullshit. I apologize to the rest of the audience for the profanity, but if that's what you think I'm saying then you really should be studying remedial English. I never said the government can manage the market and you cannot draw that inference from what I said. In fact, the point of the Commerce Clause - under my take on it - is that government
cannot manage the market and makes a hash of things when it tries to, and that things would be 50 times worse if each state were allowed to interfere with interstate commerce willy-nilly. That is what the Commerce Clause was intended to do: mitigate the risks of government distortion of the national markets by ensuring that at least there wouldn't be 50 (originally 13) cooks with their fingers in the stewpot trying to make 50 different meals out of it.
The fact that the Commerce Clause does not, and cannot, do away with all forms of government distortion of the national market does not gainsay the huge benefit it provides in ensuring that Congress can prevent the individual states from each imposing a variety of distortions on the national market. That is what the Founders were aiming at: preventing nasty trade wars between the states; at the time the Constitution was written that was a very serious problem - had you read a little more history you'd know that.
Under an originalist view of the Commerce Clause one State cannot embargo product from other States, but if it attempted to, that embargo would entail prohibiting the transportation of goods into its markets for the purposes of conducting commerce, and run afoul of the very purpose of the Clause: having the power to regulate such actions by States. In addition, that State action would create a situation that the verbiage of Article III, Section 2 of the Constitution calls a controversy "between two or more states;--between a state and citizens of another state", since individual wishing to engage in trade with a neighboring State would be disallowed to do so.
Then your originalist has a very, very weak imagination and an utterly unworldly view of how reality works. A state does not have to embargo goods from other states to interfere with interstate commerce, it can impose all manner of other "requirements" that have the same practical effect. For example, a state could enact a law stating that out-of-state wineries cannot ship directly to customers but must instead transship their wines through wholesalers while, on the other hand, in-state wineries can ship directly to their in-state customers.
Is that an embargo on out-of-state wines? No, out-of-state wines can clearly still be sold to in-state customers, they just have to be sold by in-state wholesalers and cannot be shipped directly to the customer. Does that have a negative impact on interstate commerce? You betcha. Would your originalist view of the Constitution prevent that sort of interference with interstate commerce? No.
The fact that your originalist view of the Commerce Clause cannot catch that sort of relatively ham-handed interference with interstate commerce, simply because it doesn't represent an embargo, means that your view of the Commerce Clause is a failure.
The idea that lacking your expansive interpretation of the Commerce Clause, the national market would be balkanized is ironic, the segmented market has always existed, divided by the spending ability of the consumer. I can buy my children $20 sneakers, or I can buy them $180 sneakers, depending on my ability (and willingness) to pay either sum, but the fact that the $20 sneaker exists, has not impacted the $180 sneaker market in the least bit; both markets thrive.
Now you're setting up a strawman, and I am, to say the least, rather disappointed that you would stoop to such a childish tactic. I have never said that the goal of the Commerce Clause was to remove all differences in the market or disparities between various sellers and buyers. It is precisely the nature of markets free of government-caused distortions that they will have buyers who can, and desire to, purchase expensive goods as well as buyers who cannot, or who do not want to. That is not balkanization, that is the inherent nature of a free market.
What I did say - and said quite clearly - is that the Commerce Clause was intended to prevent the states from artificially carving the national market up into little fiefdoms.
Try again, and next time, address the point I made, not the strawman you set up.
Yes, I understand the concept of the "Dormant Commerce Claus", yet another way for the Federal government to overstep its Constitutional limits, and expand its powers without the burden of amending the Constitution. I don't like the idea that there exists a practice in the Federal system which allows the government to act at will, without constraints, as it sees fit.
Huh? The Dormant Commerce Clause jurisprudence is not some sort of evil subterfuge to amend the Constitution, it is a forthright doctrine aimed precisely at implementing the Founders' entire purpose in putting the Commerce Clause in the Constitution in the first place: to prevent the states from carving up the national market into little fiefdoms.
If putting the whole point of a constitutional provision into effect is somehow an unconstitutional amendment of the Constitution, then you have serious issues with basic logic in addition to basic English.
I don't look at government the same way that you do. You seem to believe in a government that sees its citizenry as possible hapless victims of an unregulated market, and goes about the business of protecting us from unscrupulous merchants. But the flaw in your logic is that any set of manufacturing standards set in place by a State government, must necessarily be set at the lowest common manufacturing standard, otherwise it would make it impossible for manufacturing in the State to thrive. That, coupled with your imaginary higher standard of manufacturing set in place for out-of-State products would in fact create that $20 and $180 sneaker market, with out of State manufacturers controlling the luxury sneaker market.
Again, another strawman. No, I do not feel that way in the least and nothing I've said supports your contention. What I am aiming at is precisely what the Founders were aiming at with the Commerce Clause: preventing all of the little state governments from making precisely those sorts of decisions for their citizens and, furthermore, cutting their citizens off from the citizens of other states by making commerce between the states difficult. That is the sort of nanny-statism the Founders intended to prevent and that is the only version of the Commerce Clause I am proposing.
"Commerce" is commerce, and manufacturing is manufacturing, and Congress and the Courts have expanded the meaning of the word "commerce" way beyond its original meaning, and the Commerce Clause far beyond its original intent.
Really? So, when a manufacturer purchases raw materials, is that "commerce" or is that "manufacturing"? When a business that produces shoe soles sells its completed soles to another business that attaches the uppers to shoe soles, is that "commerce" or "manufacturing"? When Sears, back in the day, sold a kit that contained blueprints for a house, along with cartons containing all of the various pieces of wood and etc. needed for that house, was that "commerce" or "manufacturing"? The buyer clearly wasn't interested in having a set of drawings and a bunch of bits of wood and etc, the buyer wanted to have a house, but the house wasn't built; did the process of manufacturing that house continue across the transaction in which the buyer purchased the kit from Sears, in which case the transaction would not have been "commerce" under your limited definitions, or not?
With all due respect, your view of the Commerce Clause is narrow, crabbed, suffers from poor definitional issues, and utterly fails to capture the Founders' purpose in putting it into the Constitution. The mere fact that Congress can constitutionally legislate far more than simply prohibiting inter-state embargoes under the Commerce Clause as it was written by the Founders does not gainsay that conclusion. If that was all that the Founders intended to accomplish - to prevent the states from embargoing each others' goods - then they could have done so quite simply, by stating that no state could embargo the goods of any other state. Furthermore, if the only thing the Founders were aiming at was preventing the states from embargoing each other, they would have put the provision into Article IV, as a limitation on the States, rather than putting it into Article I as a power granted to the Congress.
I'm sorry that your belief that your views are originalist is so easily bent out of shape, but that is a failing of your views, not of the Constitution or of the courts' general approach to interpreting and applying the Constitution.
