Originally Posted by
newKnow
Gloopy,
I understand where you are coming from with the Commerce Clause and the General Welfare Clause, but your example referenced the First Amendment. With that, I can assure you, the burden of proof is on the government to prove that its law/regulation is at the very least reasonably related to a legitimate governmental purpose. (But, the way you lay it out, the government would be held to an even higher standard than that.)
From your post, I'm gathering that you believe the Supreme Court is part of the federal government, thus part of the problem. But, from what I've learned, the Court takes First Amendment challenges very seriously. The government has to walk a very tight rope when it tries to regulate speech. In the past, while some regulations of speech were upheld, most failed to meet constitutional muster. So, I can just about assure you that your EPA example of regulation would be struck down.
You mean *probably* would be struck down. And while I agree that particular example would most likely be, the question is "so what then?" if it wasn't? At the end of the day, since rights are no longer self evident and unalienable but have "progressively" become subservient to the utilitarian whims of the greater good, 5/9 can simply rewrite history in any fashion they wish and quite often do exactly that, and so here we are living the "living document" myth.
So yes, they may tend to take (most) first amendment cases seriously...for now...but they all but ignore the 4th, 5th, 9th and 10th while basically declaring the 16th the bedrock of the nation, imagine that. Which is of course the exact situation many founders predicted we would be in which is why there was such a fierce debate for even having a codified bill of rights in the first place. Many worried that by writing some down, since you can't possibly write down all rights, that later courts would look at what you wrote as an exhaustive list of rights and exclusion from that list would imply a non right. The compromise was the extremely powerful and limiting 9th and 10th amendments. So to get around that, endless sophistry has been applied for generations to bend reality and make anything and everything into either a general welfare or an interstate commerce clause issue, thus erasing the 9th and 10th amendments.
It used to be that if it wasn't in the Constitution, it wasn't a federal power. Now anything and everything is 100% federal because of general welfare or it somehow through the butterfly effect touches something across a state line eventually and therefore is the interstate commerce clause. That is clearly unconstitutional over reach. The problem isn't the court itself though. Its the people who elect the people who put the people onto the court in the first place. As long as we keep looking for a government that is big enough to give us everything we need, we will keep getting the government that is big enough to take everything we have.