Changes

As recently as 2012, Chief Justice John Roberts emphasized these limits on the power of the national government, in his decision for the Court which upheld the constitutionality of the Patient Protection and Affordable Care Act (better known as "ObamaCare"):<ref>''Nat'l Fed'n of Indep. Bus. v. Sebelius'', 132 S. Ct. 2566, 2577-78 (2012).</ref>

As recently as 2012, Chief Justice John Roberts emphasized these limits on the power of the national government, in his decision for the Court which upheld the constitutionality of the Patient Protection and Affordable Care Act (better known as "ObamaCare"):<ref>''Nat'l Fed'n of Indep. Bus. v. Sebelius'', 132 S. Ct. 2566, 2577-78 (2012).</ref>

{{cquote}Today, the restrictions on government power foremost in many Americans' minds are likely to be affirmative prohibitions, such as contained in the Bill of Rights. These affirmative prohibitions come into play, however, only where the Government possesses authority to act in the first place. If no enumerated power authorizes Congress to pass a certain law, that law may not be enacted, even if it would not violate any of the express prohibitions in the Bill of Rights or elsewhere in the Constitution.

{{cquote}Today, the restrictions on government power foremost in many Americans' minds are likely to be affirmative prohibitions, such as contained in the Bill of Rights. These affirmative prohibitions come into play, however, only where the Government possesses authority to act in the first place. If no enumerated power authorizes Congress to pass a certain law, that law may not be enacted, even if it would not violate any of the express prohibitions in the Bill of Rights or elsewhere in the Constitution.

In Federalist (Paper) No. 45, James Madison explained the importance of a limited national government, so that much power could remain at the local level:

In Federalist (Paper) No. 45, James Madison explained the importance of a limited national government, so that much power could remain at the local level:

{{cquote|in the ordinary course of affairs, concern the lives, liberties, and properties of the people” were held by governments more local and more accountable than a distant federal bureaucracy.}}

{{cquote|in the ordinary course of affairs, concern the lives, liberties, and properties of the people” were held by governments more local and more accountable than a distant federal bureaucracy.}}

{{cquote|By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power.”}}

{{cquote|By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power.”}}

== The most important provision? ==

== The most important provision in the entire Constitution? ==

In our last Lecture we discussed the Preamble (We the People of the United States, in Order to form a more perfect Union ...."), and courts have construed it not to have any legally binding effect.  The Preamble is merely "window-dressing", and does not establish any rights of the people, or any powers of government.  It is a very eloquent introduction to the document, but does not create any rights, or establish or limit any governmental powers.

In our last Lecture we discussed the Preamble (We the People of the United States, in Order to form a more perfect Union ...."), and courts have construed it not to have any legally binding effect.  The Preamble is merely "window-dressing", and does not establish any rights of the people, or any powers of government.  It is a very eloquent introduction to the document, but does not create any rights, or establish or limit any governmental powers.

The famous U.S. Supreme Court case of ''Wickard v. Filburn'' (1942) extended the scope of the Commerce Clause to allow Congress to limit how much wheat a man grows on his own property to feed his own family.  How did that affect "commerce ... among the several States"?  According to the Supreme Court, the farmer's growing of wheat on his own land, for his own family's use, enabled him to avoid buying wheat for his family in the market, and that affected the overall price of wheat in interstate commerce.  Price, after all, is the result of supply and demand, and the farmer reduced the interstate demand for wheat by growing his own, and that affected the interstate price (ever so slightly).  That effect on interstate commerce was enough for Congress to have the power to limit how much wheat someone can grow on his own land!

The famous U.S. Supreme Court case of ''Wickard v. Filburn'' (1942) extended the scope of the Commerce Clause to allow Congress to limit how much wheat a man grows on his own property to feed his own family.  How did that affect "commerce ... among the several States"?  According to the Supreme Court, the farmer's growing of wheat on his own land, for his own family's use, enabled him to avoid buying wheat for his family in the market, and that affected the overall price of wheat in interstate commerce.  Price, after all, is the result of supply and demand, and the farmer reduced the interstate demand for wheat by growing his own, and that affected the interstate price (ever so slightly).  That effect on interstate commerce was enough for Congress to have the power to limit how much wheat someone can grow on his own land!

Starting in 1995, the Supreme Court began to slightly limit the very broad power under the Commerce Clause, beginning with its decision in United States v. Lopez (1995).

Starting in 1995, the Supreme Court began to limit =, slightly, the very broad power under the Commerce Clause, beginning with its decision in ''United States v. Lopez'' (1995). Congress had passed a law prohibiting the possession of firearms (guns) within 50 feet of schools.  Congress enacted this law as part of a gun control agenda, supposedly to reduce gun violence near schools.  (Actually, many studies have shown that there is less crime when there is more possession of guns, because guns are most often used for defensive purposes.)

 

 

 

==== "Dormant" Commerce Clause ====

==== "Dormant" Commerce Clause ====

The “dormant” Commerce Clause is implied by the Commerce Clause, by prohibiting states from enacting laws that interfere with interstate commerce.  For examples, states are not allowed to impose taxes on goods or services provided from within one state to a buyer in another state.

The “dormant” Commerce Clause is implied by the Commerce Clause, by prohibiting states from enacting laws that interfere with interstate commerce.  For examples, states are not allowed to impose taxes on goods or services provided from within one state to a buyer in another state.

=== Taxing Clause ===

It is the "dormant" Commerce Clause that has kept the internet from being regulated by state laws.  Most internet traffic travels among multiple states, and only Congress has the authority to regulate that interstate "traffic".

 

=== Copyright and Patent Clause ===

=== Copyright and Patent Clause ===

{{cquote|The same rule that teaches the propriety of a partition between the various branches of power, teaches us likewise that this partition ought to be so contrived as to render the one independent of the other.}}

{{cquote|The same rule that teaches the propriety of a partition between the various branches of power, teaches us likewise that this partition ought to be so contrived as to render the one independent of the other.}}

What does the separation of powers mean in practice?  <more>

What does the separation of powers mean in practice?  One meaning is that the President is not allowed to change a law passed by Congress.  The President, and the entire Executive Branch, has only the power to "execute" (enforce) the laws faithfully to what Congress passed.

 

 

Nearly 800 years ago, in the summer of 1215, the English King John agreed to the Magna Carta.

== Homework ==

== Homework ==