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Resolved: This House would overturn United States v Darby(1941)

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Description
This debate is intended to examine the landmark ruling of the Supreme Court of the United States in United States v Darby 312 US 100(1941).[1-Summary][2-Full Case Brief]
In this Supreme Court of the United States ruling it was decided that a Federally mandated minimum wage was constitutional, and cemented minimum wage laws from there-on to today. It should be noted that this is an examination of a court ruling, and therefore an acceptance of the validity of the framework set forth by the founding documents of the US. Basically imagine if both myself and the contender are making a case before SCOTUS today, on this very same ruling. Arguments and voting should thusly be structured accordingly.
It should also be noted that this case established the *Federal* power to mandate minimum wage laws, not states ability to. The *States* ability to was affirmed in West Coast Hotel Co. v Parrish US 300 US 379(1937)[3].
Thank you for reading and Thank you to Virtuoso for agreeing to replace my previous opponent and argue in this debate instead!
[1]https://en.m.wikipedia.org/wiki/United_States_v._Darby_Lumber_Co.
[2]https://www.law.cornell.edu/supremecourt/text/312/100
[3]https://en.m.wikipedia.org/wiki/West_Coast_Hotel_Co._v._Parrish
Round 1
Published:
*I will be c/ping my first round from the previous debate*

To start I would like to thank any who are reading this debate, I hope you enjoy it. Also, thank you as well Vituoso(Con) for accepting this debate. This should be a fun debate and an interesting examination of a decades old Supreme Court ruling in light of what we now have discovered in the present. With that being said, let us begin...

First, I would like to give some observances from researching this case. US v Darby was a pivotal decision in the relationship between Federal and State law. Darby was the start of a 54 year period of time in which no Federal expansions into intrastate commerce were rejected.[1] This is quite a long time for expansions of Federal power to go unchecked. It is my humble estimation that the Court at that time was being reactionary to a time of crisis. They had in previous years and that very same staunchly rejected Federal attempts to expand into intrastate commerce. With rulings such as:

-A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935)[1]
-United States v. Butler, 297 U.S. 1 (1936)[2]
-Carter v. Carter Coal Co., 298 U.S. 238 (1936)[3]

the court upheld a narrow interpretation of the commerce clause of Article 1, Section 8, Clause 3 of the constitution that grants Congress the power "to regulate commerce with foreign nations, and among the several states, and with the Indian tribes."[5]. This interpretation strictly limited the scope of the clause to interstate commerce, and not intrastate commerce. These rulings for obvious reasons did not go well with the general public, and that intensified with Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936)[6]. It was in this case that the Supreme Court ruled against even a state mandated minimum wage law. This was an extreme error as it set in motion President Roosevelts plan to add more justices to the supreme court. Indeed, the aforementioned case of West Coast Hotel v Parrish was ruled at the height of tensions regarding the supreme court. This case is oft referred to as "The switch in time that saved nine."[7]

This decision was correct in my estimation, but the era of Federal expansionism it saw with the switching of Justice Roberts vote and an ever broadening interpretation of the commerce clause was not. This interpretation i hold, is predicated upon a false meaning being interjected into the Clause itself. Thusly we reach the first part of my case, an examination of the Commerce Clause and the language contained therein. 

The Commerce Clause

"to regulate commerce with foreign nations, and among the several states, and with the Indian tribes."

Commerce as we would define it today is the activity of buying and selling, especially on a large scale. This is actually quite close to the specific meaning of commerce as used by the framers of the Constitution. As Professor Randy E Barnett of the University of Chicago wrote in 2001, 

"While Justice Thomas has maintained that the original meaning of "commerce" was limited to the "trade and exchange" of goods and transportation for this purpose, some have argued that he is mistaken and that "commerce" originally included any "gainful activity." Having examined every appearance of the word "commerce" in the records of the Constitutional Convention, the ratification debates, and the Federalist Papers, Professor Barnett finds no surviving example of this term being used in this broader sense. In every appearance where the context suggests a specific usage, the narrow meaning is always employed."[8]

"In sum, according to the original meaning of the Commerce Clause, Congress has power to specify rules to govern the manner by which people may exchange or trade goods from one state to another, to remove obstructions to domestic trade erected by states *and to both regulate and restrict the flow of goods to and from other nations (and the Indian tribes) for the purpose of promoting the domestic economy and foreign trade."[8]

Thusly, I contest the validity of Federal regulation when it pertains to wage agreements made within the States. 

This would be because wage laws would clearly fall under the purview still of intrastate commerce, as wage agreements are an exchange of labor and time for wage, sometimes to include benefits but not necessarily, compensation. It must therefore be concluded that wage compensation laws still fall under the purview of the 10th amendment[10], as a power reserved to the States

As can also be seen in US 116, the courts at the time held the interpretation that "commerce" included any "gainful activity". 

"interstate commerce should not be made the instrument of competition in the distribution of goods produced under substandard labor conditions, which competition is injurious to the commerce and to the states from and to which the commerce flows."[9]

With this we must come to the realization that this interpretation is applying too broad a scope to the commerce clause as originally intended. "Gainful Activity" as clearly implied, by way of powers otherwise reserved to states, is not under the purview of the Federal government to regulate or make provisions for the prohibition thereof, particularly in the realm of indirect advantage/disadvantage.

Neither does this constitute as "injurious"/as an obstruction to the flow of commerce between one state and another. Commerce is still flowing freely otherwise, and parsing distinctions of advantages gained should not even be the concern of the clause or the court, being that there is vast discrepancy in the minimum wages between states independent of the Federal government even today

Furthermore, as Barnett continues in his paper, he cites Justice Clarence Thomas and his interpretation of the commerce clause, 

"According to Justice Thomas, "at the time the original Constitution was ratified, 'commerce' consisted of selling, buying, and bartering, as well as transporting for these purposes." He also cited the etymology of the word, which literally means "with merchandise." He then noted that "when Federalists and Anti-Federalists discussed the Commerce Clause during the ratification period, they often used trade (in its selling/bartering sense) and commerce interchangeably." The term "commerce," according to Justice Thomas, "was used in contradistinction to productive activities such as manufacturing and agriculture."...activity. In cases such as United States v E.C. Knight Cothe Court distinguished "commerce" from manufacturing or agriculture, and held that the regulation of either manufacturing or agriculture exceeded the powers of Congress under the clause."[8]

Given this precedent supplied by U.S. v E.C. Knight Co.[12], as a manufacturer of lumber, Darby Lumber Co. would be likewise exempted from federal wage laws under the commerce clause as well for intrastate commerce per such an activity being held in contradistinction. 

On a final note, the courts addressal of the indirect and necessary expansions into intrastate commerce that came with the Fair Labor Standards Act was in my estimation correct. The same rationale should be applied here as well, that any indirect/incidental advantages gained from such discrepancies in *intrastate* commerce, and "gainful activity" implied therein, not be of relevance to the clause, or the Court in this matter.

After careful deliberation, I will reserve the latter part of my construct, and arguments upon the practical effects of overturning this ruling in the present for the next round, and cede the floor to Virtuoso.

Published:
Thank you Buddamoose for this debate. I've always dreamed of arguing a case in front of the Supreme Court. I suppose this is as close as I'll ever get. As a note: I am running low on time and I apologize that I can't add in more arguments or elaborate more in this round. 

Fair Labor Standard Act of 1938

First I would like to begin by analyzing the law in question. United States v. Darby Lumbar Company upheld that not only was the federally mandated minimum wage constitutional, but the entire Fair Labor Standard Act of 1938 is constitutional. This act did several things in addition to establishing the minimum wage:

  • Banned oppressive child labor
  • Established overtime
  • Established that employees under the age of 18 could not do dangerous tasks
  • Established that children under the age of 16 cannot work during school hours
Overturning United States v. Darby would not only mean that the federally mandated minimum wage would be deemed unconstitutional, but that all the other federal regulations established by FLSA are unconstitutional.

Since then this law has been amended many times, most notably to increase the minimum wage. Other amendments include the equal pay act (2), the Age Discrimination in Employment Act (3), the Migrant and Seasonal Agricultural Workers Protection Act of 1983 (4), etc. 

The Commerce Clause

At heart of the debate is the meaning and scope of the commerce clause. The opinion of the court is as follows (5): 

the distinction between manufacturing goods and engaging in interstate commerce was no longer useful, since most companies produce their goods without considering where they may travel. Moreover, Congress was justifying in seeking to prevent a race to the bottom among states, which might attempt to produce goods as cheaply as possible by exploiting workers. This practice likely would have an effect on interstate commerce, so Congress could regulate it under the Commerce Clause. Moreover, the record-keeping requirements and potential penalties imposed by the Act were not arbitrary or irrational.

While manufacture is not of itself interstate commerce, the shipment of manufactured goods interstate is such commerce, and the prohibition of such shipment by Congress is a regulation of interstate commerce.

Such regulation is not a forbidden invasion of state power merely because either its motive or its consequence is to restrict the use of articles of commerce within the States of destination, and is valid unless prohibited by other Constitutional provisions 

The power of Congress over interstate commerce extends to those intrastate activities which so affect interstate commerce or the exercise of the power of Congress over it as to make their regulation an appropriate means to the attainment of a legitimate end -- the exercise of the granted power of Congress to regulate interstate commerce.
I contend that the court is right. As justice Stone notes in his opinion(6):

In the more than a century which has elapsed since the decision of Gibbons v. Ogden (1824), these principles of constitutional interpretation have been so long and repeatedly recognized by this Court as applicable to the Commerce Clause, that there would be little occasion for repeating them now were it not for the decision of this Court twenty-two years ago in Hammer v. Dagenhart (1918). . . . In that case it was held by a bare majority of the Court over the powerful and now classic dissent of Mr. Justice Holmes setting forth the fundamental issues involved, that Congress was without power to exclude the products of child labor from interstate commerce. The reasoning and conclusion of the Court's opinion there cannot be reconciled with the conclusion which we have reached, that the power of Congress under the Commerce Clause is plenary to exclude any article from interstate commerce subject only to the specific prohibitions of the Constitution.
...
The conclusion is inescapable that Hammer v. Dagenhart, was a departure from the principles which have prevailed in the interpretation of the Commerce Clause both before and since the decision and that such vitality, as a precedent, as it then had has long since been exhausted. It should be and now is overruled.


Sources

6. https://www.law.cornell.edu/anncon/html/art1frag46_user.html
Round 2
Published:
Given the course of arguments previous to this, I feel it pertinent to quote the late Chief Justice Stone's majority opinion in US v Darby Lumber Company(p.108)

The two principal questions raised by the record in this case are,
  • first, whether Congress has constitutional power to prohibit the shipment in interstate commerce of lumber manufactured by employees whose wages are less than a prescribed minimum or whose weekly hours of labor at that wage are greater than a prescribed maximum, and,
  • second, whether it has power to prohibit the employment of workmen in the production of goods "for interstate commerce" at other than prescribed wages and hours.


  • A subsidiary question is whether, in connection with such prohibitions, Congress can require the employer subject to them to keep records showing the hours worked each day and week by each of his employees including those engaged "in the production and manufacture of goods, to-wit, lumber, for interstate commerce.'"[1]


As can be seen, the case of US v Darby was answering to principle, and a subsidiary thereof, matters. These matters were in specific relation to minimum wage and hours laws. It is but a trivial notion to hold that an overturning of US v Darby and a holding of these principle matters as unconstitutional, would by consequence, necessarily make the amended portions, or other such laws created by states themselves, as unconstitutional. 

It is here that we will turn out attention to Gibbons v Ogden[2], As the late Chief Justice Marshall writes,

It has been truly said that "commerce," as the word is used in the Constitution, is a unit every part of which is indicated by the term.If this be the admitted meaning of the word in its application to foreign nations, it must carry the same meaning throughout the sentence, and remain a unit, unless there be some plain intelligible cause which alters it.[2]

It is the power to regulate, that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution[2]
Chief Justice Marshall in this ruling makes these two key notes that are simply not in accordance with the constitution as written by the framers. In the first he holds that "regulate" must be uniform in meaning across the whole of the clause, unless there is a plain cause which alters it. This was an opinion that was directly conflictory with the one of the crucial framers of the Constitution itself, James Madison, 

Being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it. Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged. And it will be safer to leave the power with this key to it, than to extend to it all the qualities and incidental means belonging to the power over foreign commerce, as is unavoidable.

In other words, the use of tariffs and other forms of "prohibitory regulations", the term itself a concession to the normal meaning of "regulation"--while necessary to effectuate the purposes of the power to regulate commerce with foreign nations, would fly in the face of the purpose for regulating commerce among the states.[4]
In the second Justice Marshall holds that the power to regulate, acknowledged no limitations other than are prescribed in the Constitution. I wholeheartedly agree with this sentiment, and thus we reach the next part of my case construct, 

The Power to Prohibit

I will refer back to Professor Barnett of Chicago University and his paper[4] regarding discerning the original meaning of the Commerce Clause, 

Apart from the Commerce Clause, the terms "regulate" or "regulation" appear seven other times in the body of the Constitution and three times in the amendments proposed by Congress to the states, though only once in the Bill of Rights as ratified. The term "prohibit" is used once in the body of the Constitution and twice in the Bill of Rights.

  • Article I, Section 4 gives Congress the power to "alter such Regulations"185 on the time, place, and manner of elections prescribed by state legislatures. Clearly, the power to regulate or facilitate elections is not the power to prohibit them.
  • Article I, Section 8 gives Congress the power "to . . . regulate the Value" of money, not to prohibit the use of money or to "regulate" its value to zero
 In two places the Constitution makes an explicit distinction between prohibition and regulation. Article III, Section 2 gives the Supreme Court appellate jurisdiction, both as to law and fact, "with such Exceptions, and under such Regulations as the Congress shall make."

By distinguishing "exceptions" from "regulations," the Constitution distinguished Congress's power to regulate or subject to rule the Court's appellate jurisdiction and its power to prohibit the Court from exercising its jurisdiction by making "exceptions" thereto. If the power to make regulations included the power to prohibit that which is regulated, there would have been no need to give explicit power to Congress to make "exceptions" to appellate jurisdiction.[4]
Another quite blatantly obvious use of "regulate" in the constitution, would be the Second Amendment and, "well-regulated militia..." Clearly, a well "regulated" militia did not mean a "prohibited" one and facially it would be quite absurd to think it would. Indeed, well-regulated" meant well trained. As can be seen with this, the term "regulate" rarely came with the ability to prohibit, and never in the context of domestic commerce except in one part that restricts Congresses ability until 1808 to prohibit the transport of slaves into the country by States. However, prohibition and restriction of trade to and from the country itself, is a purview of Congress under the Commerce Clause previously illustrated.

 Thusly, I hold Chief Justice Marshall's interpretation was in itself not only incorrect in these regards, but that the limitations he requested were already present within the Constitution itself. As well as that this plain intelligible cause to hold non-uniformity of the application of the clause, was also, clearly present within the constitution. 

A Subsidiary Concern- The Fifth Amendment

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.[5]
In US v Darby the court upheld that the record keeping requirements were constitutional and not a violation of the 5th amendment right to be compelled to incriminate oneself criminally. They did so reasoning that any necessary records required to uphold the law itself, were of indirect consequence to the law itself, and thus not of relevance to the Court. However, a later ruling in 1968 would appear to remand that judgement. The case in question is Haynes v United States(1968).[6] 

We hold that a proper claim of the constitutional privilege against self-incrimination provides a full defense to prosecutions either for failure to register a firearm under § 5841 or for possession of an unregistered firearm under § 5851. 
The reasoning behind this being, that such abiding by such laws would necessarily implicate an individual in a criminal act, who otherwise cannot legally possess a firearm. Basically, registry or record-keeping laws, the intent of which being to catch unlawful actors who cannot possess a firearm, cannot actually prosecute those unlawful actors under those laws.

I would ask the Court consider this adjudication in light of the Courts determination in Darby v US, and realize that this ruling applies here as well to the record keeping requirements of the FLSA. If a person was violating the act, the record keeping requirements themselves would, per Haynes v US, not be prosecutable as a crime. This failure in ability to prosecute the aforementioned violation, brings up the necessary preponderance of whether laws that could not even punish those they are most intended to(those violating labor laws) what purpose does that section of the act even have? 

On a matter of principle, I would hold the Court overrule such a law that would incorporate such requirements with full knowledge such laws are of little use to prosecuting offenders who are violating the hours and wages components of the FLSA. A law that can only be used to prosecute individuals who otherwise would be completely law abiding and performing no harm upon any others, is not a sensible, rational, or Just law. 

__________________________________________

Thank you again for reading, I will reserve further addressal of Virtuoso's case for the final round, until then, I cede the floor to Virtuoso, and look forward to his R2. 


[6]https://supreme.justia.com/cases/federal/us/390/85/
Published:
Thank you, pro, for your response! I am a bit sick right now and thought I had a extra day. I'll touch up on as much as I can.

There was a debate as to how broad the meaning of the commerce clause to be. Ultimately the SCOTUS determines the meaning and scope of the constitution. Ultimately I believe that we should follow the principle of stare decisis. In other words, SCOTUS set a precedent for their interpretation of the commerce clause. A hyper-literal hyper-understanding of the word "commerce" in the late 1700s cannot work in 21st century America. As noted here (1):

Our constitutional system has become a common law system, one in which precedent and past practices are, in their own way, as important as the written Constitution itself. A common law Constitution is a "living" Constitution, but it is also one that can protect fundamental principles against transient public opinion, and it is not one that judges (or anyone else) can simply manipulate to fit their own ideas. 

....

Originalism, as applied to the controversial provisions of our Constitution, is shot through with indeterminacy-resulting from, among other things, the problems of ascertaining the original understandings and of applying those understandings to the modern world once they've been ascertained. In the face of that indeterminacy, it will be difficult for any judge to sideline his or her strongly held views about the underlying issue. But originalism forbids the judge from putting those views on the table and openly defending them. Instead, the judge's views have to be attributed to the Framers, and the debate has to proceed in pretend-historical terms, instead of in terms of what is, more than likely, actually determining the outcome.
Thus I charge Pro's method of interpretation the constitution is deeply flawed. Thomas Jefferson stated that a country's constitution should be re-written (or at least re-evaluated) every 19 years as "the dead should not rule the living." (2) It is only by interpreting the constitution as a progressive document and as a living document that we have made the constitution to work for so long. I do contend, however, that the constitution is in dire need of a re-write (but that is a side note and for another debate). 

The US Appeals Court for the 3rd circuit notes (3):

A judicial precedent attaches a specific legal consequence to a detailed set of facts in an adjudged case or judicial decision, which is then considered as furnishing the rule for the determination of a subsequent case involving identical or similar material facts and arising in the same court or a lower court in the judicial hierarchy
And the 9th circuit notes:

Stare decisis is the policy of the court to stand by precedent; the term is but an abbreviation of stare decisis et non quieta movere — "to stand by and adhere to decisions and not disturb what is settled." Consider the word "decisis." The word means, literally and legally, the decision. Under the doctrine of stare decisis a case is important only for what it decides — for the "what," not for the "why," and not for the "how." Insofar as precedent is concerned, stare decisis is important only for the decision, for the detailed legal consequence following a detailed set of facts.[5]
Thus the court, in U.S vs. Darby upheld the legal precedent that was started way back in Gibbons v. Ogden

The Fifth Amendment Concern

The court addressed this concern in their decision (4) 

Validity of the wage and hour provisions under the Fifth Amendment. Both provisions are minimum wage requirements compelling the payment of a minimum standard wage with a prescribed increased wage for overtime of 'not less than one and one-half times the regular rate' at which the worker is employed. Since our decision in West Coast Hotel Co. v. Parrish, 300 U.S. 379 , 57 S.Ct. 578, 108 A.L.R. 1330, it is no longer open to question that the fixing of a minimum wage is within the legislative power and that the bare fact of its exercise is not a denial of due process under the Fifth more than under the Fourteenth Amendment. Nor is it any longer open to question that it is within the legislative power to fix maximum hours. Holden v. Hardy, 169 U.S. 366 , 18 S.Ct. 383; Muller v. Oregon, 208 U.S. 412 , 28 S.Ct. 324, 13 Ann.Cas. 957; Bunting v. Oregon, infra; Baltimore & Ohio R. Co. v. Interstate Commerce Commission, supra. Similarly the statute is not objectionable because applied alike to both men and women. Cf. Bunting v. Oregon, 243 U.S. 426 , 37 S.Ct. 435, Ann.Cas.1918A, 1043.
Conclusion

The SCOTUS set a legal precedent in interpreting the commerce clause. The court upheld that precedent in U.S vs. Darby  and it should not be overturned. Pro's case is entirely based on a hyper-originist understanding of the constitution, something that I argue is a flawed understanding. 

The resolution is negated.

I humbly ask that pro wait for as long as he can before posting the next round. Thank you! 

Sources 

Round 3
Published:
To begin this final round it is necessary that we address Hammer v Dagenhart[1]. As my opponent brought up earlier in Chief Justice Stones opinion in US v Darby[2], 

these principles of constitutional interpretation have been so long and repeatedly recognized by this Court as applicable to the Commerce Clause, that there would be little occasion for repeating them now were it not for the decision of this Court twenty-two years ago in Hammer v. Dagenhart (1918). . . . In that case it was held by a bare majority of the Court over the powerful and now classic dissent of Mr. Justice Holmes setting forth the fundamental issues involved

It would not be argued today that the power to regulate does not include the power to prohibit. Regulation means the prohibition of something, and when interstate commerce is the matter to be regulated, I cannot doubt that the regulation may prohibit any part of such commerce that Congress sees fit to forbid.
WIth all due respect to the late Justice Holmes, his lack of doubt, and this interpretation of Chief Justice Holmes decision in Gibbons v Ogden[3], that Congress has unlimited power to prohibit, is merely indicative of his noble intent leading to wishful thinking. As stated pre this debate, and in the first part of my case construct, I am not arguing against an overturning of child labor laws as unconstitutional. West Coast Hotel Co. v Parrish overturned the ruling in Morehead v. New York ex rel. Tipaldo[4] that erroneously held child, female, and substandard wage laws by states, as unconstitutional. And, as pointed out in my case, "regulation" most certainly does not mean "the prohibition of something, in regards to the founding documents themselves. 

However, as Justice Day wrote in the majority opinion of Hammer v Dagenhart[1], the precedent established that allows the Federal government to "prohibit" commerce, was not one of unfettered power, it was limited in scope,

In each of these instances, the use of interstate transportation was necessary to the accomplishment of harmful results. In other words, although the power over interstate transportation was to regulate, that could only be accomplished by prohibiting the use of the facilities of interstate commerce to effect the evil intended...

...This element is wanting in the present case... the goods shipped are, of themselves, harmless.
Even if we were to wholly ignore the original meanings of the texts, and operate off of precedent established, that precedent did not establish an unfettered power to prohibit interstate commerce. And furthermore, goes on to write, 

There is no power vested in Congress to require the States to exercise their police power so as to prevent possible unfair competition. Many causes may cooperate to give one State, by reason of local laws or conditions, an economic advantage over others. The Commerce Clause was not intended to give to Congress a general authority to equalize such conditions.
I wholly agree with this, and this is wholly in line with how commerce is treated, and has always been treated. For example, even in the realm of minimum wage today, States have varying minimum wages above the Federal, except for a few that do not have a State minimum wage at all. This unfair advantage is being allowed to continue, why is that advantage any less unfair solely because it has met an, in a sense, arbitarily established amount? Different States have different prices across the board on near every sort of commodity. The Court would hardly rule that such differences amount to an unfair advantage and thusly the Federal government has the power to mandate uniformity in price. That would be a wholly, without any doubt, a total violation of the Constitution, and yet, would be required to be ruled as such if this interpretation is allowed to stand. 
 
On Originalism

The opposed is indeed correct that our constitution is one that is a "living" constitution. It is a living one because it allows for amending of it, as written in Article Five of the Constitution. However, it is not a "living constitution" in the sense that the opposed wishes it was. Thomas Jefferson may have thought, as pointed out, that the constitution should be rewritten every 19 years. However, that is not the path that was decided upon. It is also pertinent to point out, that the opposed, in advocating against an originalist interpretation, links to an article that argues for a path that would throw the principle evoke in Stare Decisis, to the wind. 

 A common law Constitution is a "living" Constitution, but it is also one that can protect fundamental principles against transient public opinion, and it is not one that judges (or anyone else) can simply manipulate to fit their own ideas 


Originalism, as applied to the controversial provisions of our Constitution, is shot through with indeterminacy-resulting from, among other things, the problems of ascertaining the original understandings and of applying those understandings to the modern world once they've been ascertained. In the face of that indeterminacy, it will be difficult for any judge to sideline his or her strongly held views about the underlying issue. But originalism forbids the judge from putting those views on the table and openly defending them. Instead, the judge's views have to be attributed to the Framers, and the debate has to proceed in pretend-historical terms, instead of in terms of what is, more than likely, actually determining the outcome. Instead, the judge's views have to be attributed to the Framers, and the debate has to proceed in pretend-historical terms, instead of in terms of what is, more than likely, actually determining the outcome
I fail to see the issue with an Originalist interpretation from this. As contended in that article linked, he would have us apply whatever meaning was most suited to accomplishing one own personal views, and to be frank, the Judiciary was not meant to be a legislature, if it were it would have been enumerated with such a power.  It has been accepted since this nations founding and ratification of the Constitution, that the aforementioned constitution is one of enumerated powers. As Chief Justice Marshall writes in McCulloch v Maryland[5],

This government is acknowledged by all, to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent

Indeed the only enumerated power that provides any elasticity, is the necessary and proper clause. But as held before, any law, any ruling, that would so constitute a breech of constitutionality, a breech of states rights reserved by the 10th amendment, that it would be held as neither necessary nor proper. 

Beyond that, that which would embrace the sentiment of a judiciary that rules on its political opinions, as opposed to being independent thereof, cannot be deemed as impartial to any extent. Being that impartiality in ruling is a core aspect of judicial procedure, to where people have to announce potential conflicts of interest before even becoming involved with a case. And even if we were to hold that such opinions would hold sway over rulings, as they likely would, to suggest instead the opposite should happen, that we should fully embrace this impartiality, is beyond scope of being able to be labeled as a just jurisprudence. 

Holding that the Judiciary should be a legislature in their own right, holding that judicial review should be held sway to transience of public opinion, to be allowed to be interpreted in a different manner than enumerated, is exactly what it appears as, a desire to see the constitution itself discarded,

I do contend, however, that the constitution is in dire need of a re-write

but in the face of that being highly improbable,

"It can be amended, but the amendment process is very difficult."

one instead goes, "what if it meant whatever we want it to so long as we could just stretch the meaning?" 

"Our constitutional system has become a common law system, one in which precedent and past practices are, in their own way, as important as the written Constitution itself."
I do not disagree that we hold a common law system. All but Louisiana is a common law system, that is, a system in which decisions are derived from judicial decisions instead of from statutes. However, as apportioned in Article Six of the US Constitution,

"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, anything in the Constitution or laws of any State to the contrary notwithstanding."[6]
When that precedent is contary to anything in the constitution or laws of any State, then any such law or ruling cannot be held as valid. On another note, the Supreme Court, though it does tend to abide by precedent, it does not have to, at all. As dictated in Article Six, the Judiciary is bound to the Constitution. If a law is made that is, or is found to be, in violation of the Constitution, said Judiciary cannot rule in favor of that law, even if precedent may seem to allow it. 


And though I can acknowledge the indeterminacy in Originalist interpretations for things that have not been fully researched. This is where having a common law system does come into play, because it is in these realms that precedent could be held to have equal sway to constitutional argumentation. But in realms where it is clear that a miscarriage of justice has occurred, when it is clear that the documents have been utterly misinterpreted and twisted beyond recognition, it cannot be held that precedent has equal sway, as such a holding would be in direct contradiction to Article Six of the Constitution itself. This novel idea of a "living constitution" as one where Judiciary can interpret the language of the founding documents as it would be regarded in the transient thought of the general public, is itself antithetical to the very consistency appealed to in rebuttal of Originalism. 

As illustrated in my rebuttal and construct, the original precedent set in Gibbons v Ogden was not one that clearly established prohibition as under the purview of regulation of domestic commerce. It was however eventually read to give as such in US v Darby, against what was another clearly established precedent outlined in Hammer v Dagenhart. If Precedent held supreme power over rulings, then Hammer v Dagenhart would not have been overturned. Justice Day was not arguing for an abandonment of the precedent, but for an adherence to it, as outlined in the numerous cases cited establishing that precedent in the aforementioned opinion. Even one that is supported by a constitutional provision that affords Congress the power to prohibit trade of slaves into and out of the country. This, the only instance where prohibition is attributed to regulation at all, is clearly tied with a "commodity" that is unquestionably harmful on levels that few things match in proportion. 

Instead the court decided to read into Precedent, Chief Justice Marshall, and the Constitution, a precedent of unfettered and nigh limitless powers in regulation of commerce, particularly the ability to prohibit both transport interstate, and production intrastate. 

In closing it is plainly obvious that

  • the reading of the Commerce Clause in this case, and precedent itself is, simply put, false.
  • the commerce clause does not generally afford the power to prohibit.
  • "Unfair","injurious", or "imbalanced" advantages in commerce between states is not of concern to the Federal Government
  • US v Darby was itself a tortured reading of precedent that overturned a ruling that was labeled what it in itself actually was.
  • In light of Haynes V US, the record-keeping requirements tied to minimum wage and hours laws itself cannot be applied to those who are actually violating such laws, this making them effectively useless and arbitary
  • Originalist interpretations, though flawed, are less flawed than proposed alternatives. Particularly when it comes to proper jurisprudence, impartiality, and adherence to founding principles and documents as outlined.
  • Federal Government does not have the power to interfere with state and local police powers in regulation of commerce.
Thusly, i see little other choice than for the court to overturn US v Darby immediately. Thank you Virtuoso for a fine debate, I thoroughly enjoyed it! I now cede the floor to Virtuoso for his final rebuttals and closing statement.
 



Forfeited
Added:
Since both debaters agreed on a tie I won't vote but if I notice someone else voting, I will vote.
#16
Added:
Ok awesome. Challenge me to the debate.
Contender
#15
Added:
I don't mind 🤔
Instigator
#14
Added:
--> @Buddamoose
Shit! I was almost finished my arguments. Fuck phone posting! @Budda - Mind if we tie and restart?
Contender
#13
Added:
Glad you got it in on time! It would be a shame to forfeit the last round in an excellent debate.
Contender
#12
Added:
Boi, I almost didn't get this in on time. Was typing it up, page auto-refreshed and deleted it when I was almost done xD.
Instigator
#11
Added:
I'm totes down for a 2a debate 🤔
I posted about Citizens United earlier in the forums, down for that too. just one at a time though 🤔
Instigator
#10
Added:
Other cases of interest:
Roe v. Wade
obergefell vs hodges
I'm in favor of both cases. Also I'd be interested in debating repeal of the second amendment
Contender
#9
Added:
--> @Buddamoose
Sure! I love constitutional law and legal debates. Perhaps we could do one on Cotizens United?
Contender
#8
Added:
--> @Virtuoso
Thanks to you as well! If you wanna do another. Ur pick on case and position
I'll hold off on posting my R3 to the deadline for ya 👌👏
Instigator
#7
Added:
--> @Buddamoose
This is one of my favorite debates of all time. Thank you for debating this with me! I've learned quite a lot from this debate!
Contender
#6
Added:
Looks good to me
Contender
#5
Added:
How about R1= Constructs
R2 = Construct+Rebuttal
R3= Rebuttal+Closing statement
?
Instigator
#4
Added:
Its ok you didn't compile your entire case initially btw. I see no issues with doing R1+R2 as rounds where constructs are permissed. Because of the size limitations, and the scope of what's being argued, it makes little sense to me to limit constructs to solely one round. Constructs wouldn't be nearly detailed enough at that point. Like my R1 was the main part, but theres no way I could have squeezed my entire construct in one Round xD
Instigator
#3
Added:
Thank you!
Contender
#2
#1
Criterion Pro Tie Con Points
Better arguments 3 points
Better sources 2 points
Better spelling and grammar 1 point
Better conduct 1 point
Reason:
Both debaters agreed on a tie.