Is That Legal?

Maybe that case is fictional. But really, is it that much loopier than SCOTUS's decision in Wickard (which I assume everyone will agree is a real case :-)?

[ELM: Yes, it is! In Wickard, the connection between consuming home-grown wheat and interstate commerce was tenuous but real. A farmer who consumed his own wheat did not buy that amount on the open market. This is not to say that the interestate commerce connection in Wickard is strong; it is simply to say that it's real. In Judge Napolitano's supposed case, being able to see into New Jersey from outside a window of the Empire State building has no connection whatever to commerce. That's an important distinction.

There are enough real silly cases out there that illustrate the worrisome reach of the commerce clause; there's no need to make up bogus ones.

A few things.

First, why would anyone with any sense expect a hack like Napolitano to stick to the truth -- assuming the NY case is bogus (as it must be, or it'd be in every Con-law case book). He's an apologist for the worst elements of the right. Period. "Remember Schiavo!!!"

Second, isn't it self-evident that the taking of property -- as Dred Scott made plain -- applied to slaves? C'mon, Eric? You're making one of those "liberal" policy arguments in attacking the good judge's view about Lincoln's unAmericanism.

(Was Lincoln a liberal, by the way?)

Finally, Eric, what does the "L" in "ELM" stand for? I bet it's "Lehigh". Am I right? [Okay, I had a rotten day today.]

We couldn't find the case either.

BTW, the argument that Lincoln was the first Liberal was brought forth by William Kendall in the 1960's, if not earlier.

Why would it matter whether the slaveowners "deserved" compensation if it would have avoided the extraodinary cost of the Civil War, never mind the bloodshed? We've spent over $150 billion fighting the war in Iraq. What if you could have bought off Saddam for a billion, the loyalty of the Iraqi armed forces for a couple billion more for a smooth transition? You'd have $147 billion left over to supply the Iraqis with the flowers they were supposed to greet us with, and buy up the oil fields.

I don't know about that case, but when I searched for window washer and new york in Lexis, I found the case of "Fox v. Scully", which is a blatant sign of a cover up. No other searches yielded anything closer. Are you ready to believe?

As John Noble said. When you pay ransom to a kidnapper, you're not implying that he deserves the money.

I think the "pay for the slaves" comment is kind of funny. I wonder if he thinks that the government buying a slave for the purpose of setting it free is a valid use of eminent domain.

Napolitano should be a little more careful in what he says during his book tour. He's likely to alienate a significant portion of his potential market if he keeps implying that the South would gladly have thrown out their noble way of life and lofty principles like states' rights if Lincoln had just slipped them a few bucks. It would be a shame for folks to have to choose between their unreasonable fear of liberal judges and their rebel flag decals.

Simon,
Keep searching. The truth is certainly out there.

John,
I agree that pragmatism sometimes trumps principle, but such a decision must take other factors into account. First, what would have been the likely dangers associated with a billionaire Saddam wandering around the middle east? Second, would such a deal have encouraged other leaders to build WMDs (or gas their own people, or be undemocratic, or whatever it was that justified invasion)? Finally, what would have happened to Iraq if Saddam had just up and left? Would that really have made it unnecessary to send in US troops? (If so, why weren't they withdrawn immediately after 'Mission Accomplished'?)

That last issue relates to the slavery question as well. What would have happened to the redeemed slaves? Would their slaveowners have considered the payment sufficient reason not only to give up ownership, but to accept their former property as neighbors, or would the ex-slaves have been forced to flee north in order to gain some modicum of actual freedom? If the latter, what would have been the fallout from such a massive migration? I'm not suggesting that post-bellum America was a paradise for blacks, but wouldn't this gentleman's agreement have made their situation even worse?

Finally, is there any real evidence that the South would not have seceded if such payment had been offered? If there is, why do some people still try to claim that the Civil War was about anything other than slavery? If there isn't, Napolitano's argument is rotten to the core.

Eric,
In Wickard, the connection between consuming home-grown wheat and interstate commerce was tenuous but real. A farmer who consumed his own wheat did not buy that amount on the open market.

Feel free to ignore this if it's a foolish question, but as a non-lawyer I have to wonder: if that's the justification for federal regulation of intrastate production and use, then how did it apply in the ruling that affirmed the fed's right to override state marijuana laws? How could they possibly be justified in protecting illegal interstate commerce?