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The Power of the Court to Interpret the Commerce Clause



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Matt argues that the Courts have no business deciding a Commerce Clause case “unless as an ancillary matter the legislation or duly-authorized executive action happens to violate a constitutional right quite apart from the commerce-power or implied-power issue.” He argues that “[t]he business of courts is to vindicate the rights of individuals. But it has never been demonstrated that any individual has a constitutional right, which can be vindicated in a court of law, to be free from the strictures of any and all unconstitutional actions of legislatures or other government agencies.” First, I would submit that his view of the business of the courts does not comport with the text of the Constitution or the view of the Founders. Unless one sips particularly deeply from the Caroline Products footnote 4 Kool-Aid, Art. III’s grant of the judicial power of the United States to the Supreme Court and inferior tribunals is not simply limited to cases of individual rights, but on its plain terms extends to all cases or controversies arising under the Constitution. Marshall rightly understood this general grant of “judicial power” to include the power of judicial review (which is not inherently limited to individual rights cases), and the founders generally saw the courts as exercising a check on the other branches. Second, Matt’s repeated questioning of the basis for Gerry and Robby’s assertion that an individual is entitled to only have constitutionally valid rules applied can be answered by the text of the Constitution: specifically the Due Process Clause. Even a narrow understanding of Due Process would encompass the right not to be prosecuted under laws improperly passed—laws which are not law at all—in this case, because the legislature exceeded its authority.



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