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View Diary: Keith Olbermann Is Short (on the Constitution) (110 comments)

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  •  That would be the best argument (2+ / 0-)
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    trashablanca, bubbanomics

    I'm not sure it would win, but that would be the argument I'd make if I were representing the gvt.  I presume the standard for review would be whether there existed a rational basis for the law.  If this were the case the gvt would stand a fighting chance.

    They've got Charles Darwin trapped out there on highway 5" Bob Dylan

    by NearlyNormal on Fri Oct 16, 2009 at 09:42:00 AM PDT

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    •  Commerce Clause interpretation is changing. (2+ / 0-)
      Recommended by:
      Liberal Thinking, NearlyNormal

      I think there's a case this year.

      Even some opinion-making liberal legal scholars have been writing that the Commerce Clause is being too broadly interpreted. Mostly in the context of medical marijuana and the other drug-war issues, but they're acknowledging that you can't carve out an exception just for drug laws.

      And of course, conservative legal thought has been beating this drum for 40 years.

      The next few Interstate Commerce cases are going to be decided in ways that narrow the interpretation of the Commerce Clause.

      I don't think Rational Basis review is going to be the standard much longer. I'd expect the Court to end up with Intermediate Scrutiny at a minimum. The Conservatives will want to go to Strict, and there may be enough benefit for the centrists to get one of them to sign on. Kennedy's got an old-school New Englander streak in him... he might well go for it.


      "It is better to die on your feet than to live on your knees." -- Emiliano Zapata Salazar
      "Dissent is patriotic. Blind obedience is treason." --me

      by Leftie Gunner on Fri Oct 16, 2009 at 09:55:30 AM PDT

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