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(The Raw Story)   Federal Judge tells North Dakota that since its initals are ND and not FDA it has no business passing a law banning doctors from perscribing drugs that cause abortion to their patients   (rawstory.com) divider line 26
    More: Obvious, FDA, North Dakota, federal judges, abortions, Center for Reproductive Rights, patients, physicians  
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4266 clicks; posted to Politics » on 19 Apr 2013 at 2:48 PM (1 year ago)   |  Favorite    |   share:  Share on Twitter share via Email Share on Facebook   more»



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Archived thread
2013-04-19 01:49:40 PM
11 votes:

hasty ambush: So a state is free to regulate, with in its own borders,  the sale of and even ban the sale of things like alcohol, tobacco and even marijuana (if you believe in the 10th Amendment) but not pharmaceuticals?


Yep.  It's called "federal premption"   If the Federal government explicitly or implicity makes it clear that they intend to be the sole regulator in a particular area of commerce, then, Constitutionally, the are the only ones allowed to make laws regarding that thing.  If however, they intend that states can add additional regulations to whatever the Fed does, then the state is free to.  The Fed has made it clear that the FDA  shall be the sole dcision mker on the safety and efficacy and legality of drugs, so no "me too" by the states is allowed.

 BTW: The power of states to regulate alcohol is given to them by the 21st amendment explicitly.
2013-04-19 02:58:06 PM
3 votes:

hasty ambush: Magorn: hasty ambush: So a state is free to regulate, with in its own borders,  the sale of and even ban the sale of things like alcohol, tobacco and even marijuana (if you believe in the 10th Amendment) but not pharmaceuticals?

Yep.  It's called "federal premption"   If the Federal government explicitly or implicity makes it clear that they intend to be the sole regulator in a particular area of commerce, then, Constitutionally, the are the only ones allowed to make laws regarding that thing.  If however, they intend that states can add additional regulations to whatever the Fed does, then the state is free to.  The Fed has made it clear that the FDA  shall be the sole dcision mker on the safety and efficacy and legality of drugs, so no "me too" by the states is allowed.

 BTW: The power of states to regulate alcohol is given to them by the 21st amendment explicitly.

You notice how it took a constitutional amendment to do that?.  It should require more than the Feds merely saying we are or want to they should have to get permission from the rest of us to assume such power.  Feds should be limited to commerce between states not what goes on solely within a states.  THE Feds should not be the ones deciding the limits of their power.

The Supremacy clause states that :

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

The clause does not say that the laws of the United States shall be the supreme law of the land. It says that laws made in pursuance of the Constitution shall be the supreme law of the land.  In 1919 it was understood that the Constitution gave the feds no power to ban alcohol. That's why they needed an Amendment to the Constitution to do so.

...


I hear a lot of "it should be" and "I wish it was like this" out of your statement. You know, the opposite of what it actually is in reality.

So really, it's tough shiat, Francis. Take your repressive religious ideals back to your bunker because the rest of us, honestly, farking hate you and your sky god.
2013-04-19 02:43:19 PM
3 votes:

hasty ambush: Magorn: hasty ambush: So a state is free to regulate, with in its own borders,  the sale of and even ban the sale of things like alcohol, tobacco and even marijuana (if you believe in the 10th Amendment) but not pharmaceuticals?

Yep.  It's called "federal premption"   If the Federal government explicitly or implicity makes it clear that they intend to be the sole regulator in a particular area of commerce, then, Constitutionally, the are the only ones allowed to make laws regarding that thing.  If however, they intend that states can add additional regulations to whatever the Fed does, then the state is free to.  The Fed has made it clear that the FDA  shall be the sole dcision mker on the safety and efficacy and legality of drugs, so no "me too" by the states is allowed.

 BTW: The power of states to regulate alcohol is given to them by the 21st amendment explicitly.

You notice how it took a constitutional amendment to do that?.  It should require more than the Feds merely saying we are or want to they should have to get permission from the rest of us to assume such power.  Feds should be limited to commerce between states not what goes on solely within a states.  THE Feds should not be the ones deciding the limits of their power.

The Supremacy clause states that :

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

The clause does not say that the laws of the United States shall be the supreme law of the land. It says that laws made in pursuance of the Constitution shall be the supreme law of the land.  In 1919 it was understood that the Constitution gave the feds no power to ban alcohol. That's why they needed an Amendment to the Constitution to do so.

...


blah blah blah
which is why they use the COMMERCE CLAUSE. go read it and come back.
If every state had different laws on say, ingredient labels, which drugs were legal and which were felonies, which magazines were legal, etc.
well, interstate commerce would be a complete and total clusterfark.

next you would be ok with states defining their own units of weights and measures. right?
different electricity standards? water and air quality??

so yah
fark states' rights
2013-04-19 02:01:39 PM
3 votes:
God damn. Most of our states wouldn't exist if it weren't for the Federal Government. The Dakotas would still be indian territory if it weren't for the Federal Government and its troops. I don't understand why these idiots don't get this.
2013-04-20 08:23:01 AM
2 votes:

hasty ambush: Treason is those who have sworn to up hold and defend the Constitution and then ignore it because its convenient.

" South Carolina v. Baker, 485 U.S. 505, 511 n.5 (1988). Thus, "the Tenth Amendment confirms that the power of the Federal Government is subject to limits that may, in a given instance, reserve power to the States." New York v. U.S., 505 U.S. 144, 157 (1992)

The 10th Amendment is alive and like the rest fo the the bill of rights not totally dead, just a few examples

Supreme COurt declares portions of Brady Bill as unconstitutional -violate 10th Amendment


Supreme Court Allows 10th Amendment Challenge to Chemical Weapons Conviction


United States v. Lopez 514 U.S. 549 (1995), a federal law mandating a "gun-free zone" on and around public school campuses was struck down because, the Supreme Court ruled, there was no clause in the Constitution authorizing it.

And their are plenty of other Federal laws states are free to ignore but for the bludgeon of Federal funding for example the National drinking age of 21 only exists because if states did not raise their state drinking age to 21 the would lose some Federal funds. Same with seat belt laws and the old 55mph speed limit. The Federal government lacks real authority to impose these things on the states but it uses the threat of withholding federal funds to get the states to comply.

National Minimum Drinking Age Act of 1984-(23 U.S.C. § 158) The Secretary shall withhold 10 per centum of the amount required to be apportioned to any State under each of sections 104 (b)(1), 104 (b)(3), and 104 (b)(4) of this title on the first day of each fiscal year after the second fiscal year beginning after September 30, 1985, in which the purchase or public possession in such State of any alcoholic beverage by a person who is less than twenty-one years of age is lawful.


Oh look!  A Tenther.  It is always fun to see someone who doesnt understand how lists work.  Alas, i have a need to try to explain things, so here goes - hypo time!

You have a babysitter.  She is going to be in your house a while so you decide to leave a list of what foods she can eat.  It goes like this:

~List of things you are allowed to eat~
Tortilla chips
Leftover pizza
Diet Cokes
cookies and cream ice cream in the freezer

This seems like a reasonable limit on what she can eat.  However, you are paranoid.  So in a surfeit of caution, you add at the end of the list the following:

Anything not listed on the above approved foods list is not approved.

Thus when you come home and find she ate your Omaha Steaks, drank all the milk and gorged herself on your wife's expensive organic strawberries, what a reasonable person thinks is: "That biatch, she ate a bunch of stuff not on the list."  What a Tenther thinks is: "That biatch, she violated the last line saying that anything not on the list is not approved"

The reason we discuss the Tenth as a truism is that usually when you make a list establishing the metes and bounds of what an organisation can do, any additional statement of "oh by the way, you cant do anthing not on that list of things listing what you can do" (a) is redundant and (b) is obviously for the mouthbreathers.  I mean look at what Madison said:

"I find, from looking into the amendments proposed by the State conventions, that several are particularly anxious that it should be declared in the Constitution, that the powers not therein delegated should be reserved to the several States. Perhaps words which may define this more precisely than the whole of the instrument now does, may be considered as superfluous. I admit they may be deemed unnecessary: but there can be no harm in making such a declaration, if gentlemen will allow that the fact is as stated. I am sure I understand it so, and do therefore propose it"

Now as to your florid quoting - sure, fine, occasionally the Supremes will quote the Tenth as a short hand for saying "this law exceeds congress's enumerated powers.  But the truth is they usually just say that.  It is not that the Tenth has any power other than to state the obvious that when congress lacks a power, they lack that power.  However, i would say you should check your cites first - selective quoting is weaselly at best, akin to fraud at worst (really recommend not trying it with a court):

"The Tenth Amendment likewise restrains the power of Congress, but this limit is not derived from the text of the Tenth Amendment itself, which, as we have discussed,157is essentially a tautology. Instead, the Tenth Amendment confirms that the power of the Federal Government is subject to limits that may, in a given instance, reserve power to the States. The Tenth Amendment thus directs us to determine, as in this case, whether an incident of state sovereignty is protected by a limitation on an Article I power." New York v. United States, 505 U.S. 144, 157 (1992)

Finally, I have no ideas what oaths you have sworn in your life, but i know Magorn has sworn one to protect and defend the constitution, as have I. I just felt the need to say that in this week of all weeks tossing around the term treason for someone who disagrees with you (and agrees with the majority of American law on the subject) is intellectually cowardly, and marks you as a contemptible human being.
2013-04-19 04:20:58 PM
2 votes:

lennavan: Lord_Baull: They are currently in the practice of banning safe, potentially life-saving medical procedures, so why is that a stretch?

While I get what you're getting at, those lawmakers usually carve out a life of the mother exception.  Either way, I can't imagine you or coeyagi think derpy laws about abortion can honestly be generalized to other medications/procedures.


Brownbackistan will probably eliminate the "life of the mother" exception in the next year or so. Brownback just signed another anti-abortion bill, the third in the past three years IIRC.

http://www.chicagotribune.com/news/politics/sns-rt-us-usa-abortion-k an sasbre93i108-20130419,0,2493645.story

/so embarrassed for my state
2013-04-19 03:59:22 PM
2 votes:

lennavan: ManateeGag: hasty ambush: So a state is free to regulate, with in its own borders,  the sale of and even ban the sale of things like alcohol, tobacco and even marijuana (if you believe in the 10th Amendment) but not pharmaceuticals?

so, if there was a life saving medication that you needed, but your state said it was illegal to use, you'd be AOK with your state banning that medication and let yourself die?

Yeah, because state legislators are totally in the practice of banning safe, life saving medications.



They are currently in the practice of banning safe, potentially life-saving medical procedures, so why is that a stretch?
2013-04-19 03:29:12 PM
2 votes:
I wonder if families in South Africa will be watching the Capetown equivalent of Sally Struthers talk about the poor starving children of America in 2054, complete with flies swarming around their little blue eyes.

Republicanstan - it's more depressing than you might think.
2013-04-20 09:21:43 AM
1 votes:
Forgot one thing.

Using your example, this is how 10thers read the 10th Amendment:

~List of things you are allowed to eat~
Tortilla chips
Leftover pizza
Diet Cokes
cookies and cream ice cream in the freezer

Anything not listed on the above approved foods list is reserved for our family.

When our resident 10ther gets home, he finds the babysitter has eaten some tortilla chips, and had a Diet Coke. So he gets on her case, saying "I told you NOT to drink any Diet Coke!!!!"

The babysitter gives him a quizzical look. "But your list said Diet Cokes are approved. See, it says it right there."

With an irritated sigh, our resident 10ther says "Did you even READ the last line?. Here, let me spell it out for you, idiot: "anything not on the above approved foods list is RESERVED FOR OUR FAMILY."
2013-04-20 09:11:07 AM
1 votes:

Teiritzamna: Thus when you come home and find she ate your Omaha Steaks, drank all the milk and gorged herself on your wife's expensive organic strawberries, what a reasonable person thinks is: "That biatch, she ate a bunch of stuff not on the list." What a Tenther thinks is: "That biatch, she violated the last line saying that anything not on the list is not approved"


I agree in principle with what you're saying, though I would phrase it just a little differently. Using your analogy, what the 10th Amendment really states is "anything not on this list is reserved for our family to eat." 10thers read that to erect some *independent bar* to what the babysitter may eat, effectively limiting the list of what is expressly listed as permissible to eat. In short, they read it like some of the other amendments, restricting the scope of what would otherwise be within Congress's power.

Let me put it this way. At the broadest level, any constitutional analysis of Congressional action proceeds in two steps.

1) Does any enumerated (or implied) power authorize this law? If not, then your analysis is done. The law is unconstitutional. If yes, then proceed to step 2.

2) Does any other provision prohibit this law, which otherwise falls within the scope of an enumerated power? If not, then the law is constitutional. If so, the law is unconstitutional.

Applying this to a hypothetical examples: House Republicans draft and pass a law banning interstate transmission of electronic messages advocating in favor of gun safety laws. After threatening to filibuster and veto, Democrats roll over and pass the damn thing when the NRA goes on Fox and says scary things about the election.

1) Does a law banning interstate transmission of electronic message advocating in favor of gun safety laws fall within the scope of an enumerated power? Yes. It clearly falls within the scope of the commerce power, because Congress has the power to regulate the movement of things across state borders. Numerous cases have at least implicitly held that applies to electronic signals.

2) Does any other provision prohibit this law? Yes. This law clearly violates the 1st Amendment, which holds political expression of the sort governed by this law has its highest value.

Now, with all this in mind--is the 10th Amendment like or unlike the 1st Amendment in erecting an independent bar to federal power? That is, in our two step analysis, once we've established that a law falls within the scope of an enumerated power, does the 10th Amendment, like the 1st Amendment, say "no, you can't do that even though you otherwise could?" Or does it just say, "after you've completed step 1, if your answer to step 1 is 'no,' then states have the power to enact this law."

Linguistically, the answer is obvious. It says, in essence, "if we didn't say Congress can do this, then states can." Read it if you don't believe me. That's what it says. But that's not how conservatives read it. They imagine in the 10th Amendment an independent bar to federal action, like unto the 1st Amendment. In their minds, a 10th Amendment analysis proceeds like the analysis I just applied to interstate transmission of pro gun safety messages.

But a proper 10th Amendment analysis applied to say, a federal law authorizing expenditures from the federal treasury to support state education efforts, but with conditions attached aimed at promoting federal prerogatives, proceeds like this:

1) Does a federal law spending to promote education fall within the scope of an enumerated power? Yes. Congress has the power to tax and to spend to promote the general welfare of the United States. While what constitutes "the general welfare" isn't completely without limits, Congress nonetheless has broad discretion in determining its meaning, and surely it could rationally believe spending money to promote education is in the country's best interests.

2) Does any other provision prohibit this law? No. All the 10th Amendment says is "if we didn't say Congress can do it, then states can." But we said Congress can do this, so the 10th Amendment is moot. The real question is "having established that Congress may permissibly regulate in this domain, may states also regulate here?" Certainly the 10th Amendment doesn't say they can. The answer is yes, but that goes into the whole issue of supremacy, overlapping powers, pre-emption, etc., which is well beyond the scope of this post.

So 10thers are wrong. Supreme Court opinions holding that the 10th Amendment forbids laws otherwise within the scope of enumerated powers are linguistically wrong, and ideologically driven. Basically, people who hold that view of the 10th Amendment are still pissed that the south lost the civil war, and they're trying to re-litigate it through the 10th Amendment.

10thers: you are bad, dishonest people, enemies of our Constitution, and enemies of the republic. Go f*ck yourselves.
2013-04-19 11:38:04 PM
1 votes:

sheep snorter: South Dakota and Best Dakota


Coincidentally, Best Dakota is the only one with nuclear weapons these days.
2013-04-19 07:33:36 PM
1 votes:

Too_many_Brians: lennavan: Lord_Baull: They are currently in the practice of banning safe, potentially life-saving medical procedures, so why is that a stretch?

While I get what you're getting at, those lawmakers usually carve out a life of the mother exception.  Either way, I can't imagine you or coeyagi think derpy laws about abortion can honestly be generalized to other medications/procedures.

coeyagi: Yeah, because state legislators are totally in the practice of banning safe, life saving medications.
You mean like the morning after pill?

I can't think of a single person on earth who considers the morning after pill "life saving."  Not even you.  Awkward.


Have you looked at mortality rates of women giving birth? It has been growing for the past few years and is especially high among poor women. So yes, the morning after is a life saving pill.


Just like the anti-vaccination people, it seems many people in this country have forgotten how dangerous child-bearing can be if you don't have access to safe abortions and good prenatal care. Child birth used to be far and away the number one cause of death for women. If you start making it harder to get birth control, abortions and medical care, mortality rates in women will start climbing again. Birth is not easy or safe without modern medicine, which is what abortions are part of.
2013-04-19 05:56:08 PM
1 votes:

lennavan: Lord_Baull: lennavan: Lord_Baull: Either way, I can't imagine you or coeyagi think derpy laws about abortion can honestly be generalized to other medications/procedures..

You can't imagine how abortion can be generalized to another medical procedure??

No, I said I can't imagine how it can honestly be generalized.  No one sees abortion being regulated and worries about heart surgery being next.  Except internet argument douchebags of course.

skullkrusher: save the fetus from having a life. Life saving.

Oh you're bad.  I thought of replying "banning it saves the fetus' life" but that was no where near as awesome as yours.



I can see them going from banning abortions to banning birth control, they already tried. From there maybe the guardasil vaccine for HPV/cervical cancer, Bachmann showed that she didn't want it distributed and I'm sure there are others that agree with her.
2013-04-19 05:46:10 PM
1 votes:

lennavan: Lord_Baull: They are currently in the practice of banning safe, potentially life-saving medical procedures, so why is that a stretch?

While I get what you're getting at, those lawmakers usually carve out a life of the mother exception.  Either way, I can't imagine you or coeyagi think derpy laws about abortion can honestly be generalized to other medications/procedures.

coeyagi: Yeah, because state legislators are totally in the practice of banning safe, life saving medications.
You mean like the morning after pill?

I can't think of a single person on earth who considers the morning after pill "life saving."  Not even you.  Awkward.



Have you looked at mortality rates of women giving birth? It has been growing for the past few years and is especially high among poor women. So yes, the morning after is a life saving pill.
2013-04-19 05:26:32 PM
1 votes:

lennavan: Lord_Baull: They are currently in the practice of banning safe, potentially life-saving medical procedures, so why is that a stretch?

While I get what you're getting at, those lawmakers usually carve out a life of the mother exception.  Either way, I can't imagine you or coeyagi think derpy laws about abortion can honestly be generalized to other medications/procedures.

coeyagi: Yeah, because state legislators are totally in the practice of banning safe, life saving medications.
You mean like the morning after pill?

I can't think of a single person on earth who considers the morning after pill "life saving."  Not even you.  Awkward.


Actually, there are women out there whose immune systems are screwed up to the point that conceiving a child would trigger an immune response so severe that it could lead to the death of the mother.  There are lots of diseases that could lead to this as well.

So, yeah.  The morning after pill could easily be seen as life-saving.
2013-04-19 04:25:21 PM
1 votes:

namatad: If every state had different laws on say, ingredient labels, which drugs were legal and which were felonies, which magazines were legal, etc.
well, interstate commerce would be a complete and total clusterfark.

next you would be ok with states defining their own units of weights and measures. right?
different electricity standards? water and air quality??



First let me introduce you to a little something called the Constitution:

Article 1 - The Legislative Branch
Section 8 - Powers of Congress

The Congress shall have Power To

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

This s power reserved for the the Feds by the Constitution

Then the is that thing called reality. Many states already adopt their own standards for things like air quality, labor laws, drug laws, marriage, drivers license, hunting fishing, boats, fire resistance standards and labeling and package labeling etc, etc, etc.. California is an excellent example of this. Why are cars sold in California required to meet different emission standards than normal states?

I am not saying some national standards among these things would not be good but rather than just assume the power for itself beyond the intent of the commerce clause(for our own good) the Federal government should obtain the consent of the governed, through the amendment process.

:
2013-04-19 04:22:07 PM
1 votes:

Nadie_AZ: God damn. Most of our states wouldn't exist if it weren't for the Federal Government. The Dakotas would still be indian territory if it weren't for the Federal Government and its troops. I don't understand why these idiots don't get this.


Umm - nope. Settlers established communities in eastern and central Dakota territory before there was ever conflict with the American Indians there. Fort Pierre, Yankton, Sioux Falls,  Centralia/Fargo, Grand Forks, etc were established before the Indian Wars in that region or without any conflict or assistance from the federal government.

The Great Sioux Nation was always west of the Missouri, other tribes like the Mandan, Sisseton, Yankton, didn't really have a problem with white settlement.
2013-04-19 03:49:26 PM
1 votes:

hasty ambush: So a state is free to regulate, with in its own borders,  the sale of and even ban the sale of things like alcohol, tobacco and even marijuana (if you believe in the 10th Amendment) but not pharmaceuticals?


so, if there was a life saving medication that you needed, but your state said it was illegal to use, you'd be AOK with your state banning that medication and let yourself die?
2013-04-19 03:32:04 PM
1 votes:

hasty ambush: Magorn: hasty ambush: So a state is free to regulate, with in its own borders,  the sale of and even ban the sale of things like alcohol, tobacco and even marijuana (if you believe in the 10th Amendment) but not pharmaceuticals?

Yep.  It's called "federal premption"   If the Federal government explicitly or implicity makes it clear that they intend to be the sole regulator in a particular area of commerce, then, Constitutionally, the are the only ones allowed to make laws regarding that thing.  If however, they intend that states can add additional regulations to whatever the Fed does, then the state is free to.  The Fed has made it clear that the FDA  shall be the sole dcision mker on the safety and efficacy and legality of drugs, so no "me too" by the states is allowed.

 BTW: The power of states to regulate alcohol is given to them by the 21st amendment explicitly.

You notice how it took a constitutional amendment to do that?.  It should require more than the Feds merely saying we are or want to they should have to get permission from the rest of us to assume such power.  Feds should be limited to commerce between states not what goes on solely within a states.  THE Feds should not be the ones deciding the limits of their power.

The Supremacy clause states that :

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

The clause does not say that the laws of the United States shall be the supreme law of the land. It says that laws made in pursuance of the Constitution shall be the supreme law of the land.  In 1919 it was understood that the Constitution gave the feds no power to ban alcohol. That's why they needed an Amendment to the Constitution to do so.

...


It would be cool if you were a bit more concerned about the rights of actual people as opposed to this strange fetish-worship of the state government.
2013-04-19 03:13:17 PM
1 votes:

namatad: Magorn: You really don't want to look for the state of the Law in 1919 as defintive about state's rights federal ones or the extent of Congress' commerce clause power   that was the Lochner-era when a corrupt Supreme Court was bending over backwards to invent Constitutional reasons to invalidate nearly every reform proposed by the Progessive movement   Want to set minimum wage laws? sorry. it interferes with a fundmental right of private parties to agree to a contract we just found in the 14th Amendment.  Want to ban Child labor?  Sorry Kids too have an inlienable right to bargain for their services.   Ban the products of child labor in interstate commerce?  oh...errr. well, even if the products were made in one state, transported through several others, and then sold in yet another, that's not really "interstate commerce" since each discrete action (making, transporting, selling) occured wholly with the boundaries of one state.  (so presumbly interstate commerce was only when a factory happened to be located in such a way as its physical location put it on the border of two staes or something absurd like that)


Also the clause you cited above says that any law Congress makes IS supreme over any state law,  the in pursuance thereof  clause is meaningless because the Constitution itself limits Congress' power, so any law it makes not in line with the Constitution is facially invalid and no law at all.   However that question is one the Supreme Court gets exclusive jurisdiction over, not the states

WHY THE FARK was this shiat not taught in school?
THIS is interesting! More time on this stuff and less time on memorizing what day lincoln was shot.


It is taught in schools, or at least it was. It just gets buried under years of area men defending what they imagine the constitution to be.
2013-04-19 03:13:15 PM
1 votes:
the state's sole women's clinic that offers abortion services, the Red River Women's Clinic

That's got to be a joke.
2013-04-19 03:13:14 PM
1 votes:

hasty ambush: Magorn: hasty ambush: So a state is free to regulate, with in its own borders,  the sale of and even ban the sale of things like alcohol, tobacco and even marijuana (if you believe in the 10th Amendment) but not pharmaceuticals?

Yep.  It's called "federal premption"   If the Federal government explicitly or implicity makes it clear that they intend to be the sole regulator in a particular area of commerce, then, Constitutionally, the are the only ones allowed to make laws regarding that thing.  If however, they intend that states can add additional regulations to whatever the Fed does, then the state is free to.  The Fed has made it clear that the FDA  shall be the sole dcision mker on the safety and efficacy and legality of drugs, so no "me too" by the states is allowed.

 BTW: The power of states to regulate alcohol is given to them by the 21st amendment explicitly.

You notice how it took a constitutional amendment to do that?.  It should require more than the Feds merely saying we are or want to they should have to get permission from the rest of us to assume such power.  Feds should be limited to commerce between states not what goes on solely within a states.  THE Feds should not be the ones deciding the limits of their power.

The Supremacy clause states that :

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

The clause does not say that the laws of the United States shall be the supreme law of the land. It says that laws made in pursuance of the Constitution shall be the supreme law of the land.  In 1919 it was understood that the Constitution gave the feds no power to ban alcohol. That's why they needed an Amendment to the Constitution to do so.

...


Wrong. That issue was settled in favor of the Federal government in 1864.
I'd rather not have to return to active duty to remind you what happens to traitors who take  up arms against the United States.
2013-04-19 03:02:21 PM
1 votes:
Good. About time someone forced a little sanity on these idiots.
2013-04-19 02:55:57 PM
1 votes:
South Dakota and Best Dakota
2013-04-19 02:51:18 PM
1 votes:

Magorn: You really don't want to look for the state of the Law in 1919 as defintive about state's rights federal ones or the extent of Congress' commerce clause power   that was the Lochner-era when a corrupt Supreme Court was bending over backwards to invent Constitutional reasons to invalidate nearly every reform proposed by the Progessive movement   Want to set minimum wage laws? sorry. it interferes with a fundmental right of private parties to agree to a contract we just found in the 14th Amendment.  Want to ban Child labor?  Sorry Kids too have an inlienable right to bargain for their services.   Ban the products of child labor in interstate commerce?  oh...errr. well, even if the products were made in one state, transported through several others, and then sold in yet another, that's not really "interstate commerce" since each discrete action (making, transporting, selling) occured wholly with the boundaries of one state.  (so presumbly interstate commerce was only when a factory happened to be located in such a way as its physical location put it on the border of two staes or something absurd like that)


Also the clause you cited above says that any law Congress makes IS supreme over any state law,  the in pursuance thereof  clause is meaningless because the Constitution itself limits Congress' power, so any law it makes not in line with the Constitution is facially invalid and no law at all.   However that question is one the Supreme Court gets exclusive jurisdiction over, not the states


WHY THE FARK was this shiat not taught in school?
THIS is interesting! More time on this stuff and less time on memorizing what day lincoln was shot.
2013-04-19 01:49:55 PM
1 votes:
Good.
 
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