Massachusetts Court rules state cannot ban gay marraige

[Berzerker]

Imran -

That's the point. The wording of the Constitution doesn't cut out the states... judicially created (maybe rightly) DCC does. It's judicial activism you like, basically .

The wording of the Constitution doesn't cut out the states when confirming nominees for the SCOTUS either, that doesn't mean the states share the power to confirm judges. According to you, they should be able to vote because they share that power with the Senate.

Once again, why does this preclude the states from regulating parts of interstate trade?

Because the states don't share the power to regulate ICC with Congress. That power was delegated to Congress, not the states...

Can you explain to me why Land's End asks you to include sales tax for EVERY state, except those that don't have one? Wouldn't that be illegal under your formulation?

Kansas has a sales tax and we're not on that list. The obvious answer is these states asked Congress for permission and got it or the courts have re-written the ICC to allow the states leeway.

Furthermore, I just paid Georgia sales tax on a sweater I just purchased, even though the UPS tracking said it came from a warehouse in Kentucky and crossed over Tennessee and will soon go into Georgia. Oh, the company is based in Wisconsin.

How are they able to do this if you say states can't charge sales tax on 'interstate commerce'?

Geez Imran, maybe they asked Congress for permission? Why are the states lobbying Congress for the power to charge sales taxes on internet commerce? If you were right, they wouldn't need to ask...

No, but at least you admit the clause is primarily a restriction .

I admitted that? No, the restriction is the ICC, this provision is an exception to that restriction.

If the ICC foreclosed all restriction by states on interstate commerce, then why have that restriction on tariffs against other states?

That question makes no sense. Replace "restriction" with "exception" and it makes sense. I already explained why...

Because that would be power over the federal government.

No it isn't, I didn't ask if the states alone can vote on nominees, just why they can't also vote. How is that any different than what you propose wrt the ICC. Congress has the power to regulate commerce among the states and you claim the states can regulate trade among the states too, obviously these "shared" powers are in conflict if Congress and a state disagree. So why can't the states add their votes to the Senate when considering nominees to the SCOTUS? According to your argument, that since the Constitution doesn't forbid the states from having a power given to Congress, then the states should have the power to vote on nominees too. This is just one example why your argument is invalid...

They don't have power over the federal superstructure, but they do have soveriegn power over anything that enters their borders, except where specifically closed off to them (and not by inference).

What is "federal superstructure"? Why don't the states share power to determine the make-up of this federal superstructure? Does the Constitution prohibit the states from voting on federal judicial nominees or not? That's your argument! You're just pulling...ahem...stuff out of your behind... They don't have the shared power because powers aren't shared...

The States get their power from a vastly different source than the Federal government. The States are soveriegn over everything. They can do whatever they want except where the Constitution specificially says they can't. The Federal Government can only do what the Constitution says.

That isn't what the 10th Amendment says.

Once again, why does this preclude the state courts from excersizing jurisdiction over those cases as well? Where does it say the SCOTUS only has original jurisdiction over those cases?

Once again, read the 10th Amendment. Those powers not delegated to the US government are reserved to the states. It doesn't say, "those powers delegated to the US government are shared by the states".

Got an A

Just goes to show a student can get an A without understanding what the 10th Amendment means wrt the Constitution.

Or rather, getting your ass whupped . You are trying to argue that states can't regulate interstate commerce without the Dormant Commerce Clause, and as the SCOTUS found out, you can't do that, at least not well.

I've never mentioned this "dormant" Commerce Clause, and it isn't in the Constitution. It's a creation of the courts to allow the states to regulate IC under certain circumstances... The DCC is basicly a test to scrutinise whether or not a state regulation infringes too much on interstate trade - an attempt by the courts to balance the internal interests of a state with IC. The courts have blurred the line at the behest of competing legislative jurisdictions, allowing the states to regulate IC and Congress to regulate intrastate commerce (partially) beyond that allowed by the Constitution. Contrary to your claims, I'm not the one using judicial activism to support my argument, that would be you, but what else is new...

[Ramo]

The concept of marriage preceded government, and the term for that concept preceded government.

Which concept of marriage? That of a heterosexual monogamous sexual relationship? Because that isn't necessarily marriage. See incestual people. Marriage by definition is sanctioned by the state.

Marriage in the US is between one man and one woman only because the US gov't says it is.

Stealing and murder are also concepts that preceded government as did the terms for these actions.

No, the concepts of taking and killing preceded government, but stealing and murdering did not. Since stealing is by definition illegal taking and murder is by definition illegal killing.

Only in these debates do we hear people claiming the Nazis didn't steal and murder people...quite telling...

Which debates? In any debate, I'd say that the Nazi's (when in power), did not steal and murder. A state by definition cannot steal and murder or do anything else that's illegal.

And that is what the states have done. Marriage doesn't include same sex unions even according to how government defines marriage

Not Canada and a few other states. Once again, you missed my entire point: the US can redefine marriage, and it should.

, but I reject this notion that one group of people - government - can walk in and start re-defining words.

A gov't can't redefine its own laws?

That's why I don't have to put forth the argument that the Nazis didn't steal or murder people, they did and you won't find survivors of their crimes agreeing with you that they didn't.

Oh come on, this is a totally loaded argument. Let's go over this again:

Murder is defined as (acccording to dictionary.com's primary definition):
The unlawful killing of one human by another, especially with premeditated malice.

The state by definition cannot do anything illegal.

Thus, the state cannot murder.

[DinoDoc]

We stopped talking about that long ago. Try to keep up Ramo.

[Imran Siddiqui]

Don't worry, DD... it isn't like Berz is reading my posts anyway

Kansas has a sales tax and we're not on that list.

OMG... reading is fundamental:

Group 2 States: all others, except AK, DC District of Columbia, DE, MT, NH, and OR.

Are you asserting Kansas isn't a US state?

Congress has the power to regulate commerce among the states and you claim the states can regulate trade among the states too, obviously these "shared" powers are in conflict if Congress and a state disagree.

If they disagree, Congress wins... supremacy clause.

So why can't the states add their votes to the Senate when considering nominees to the SCOTUS? According to your argument, that since the Constitution doesn't forbid the states from having a power given to Congress, then the states should have the power to vote on nominees too.

Yes, according to your twisted reading of my argument. The Supreme Court and federal judiciary are things created by the federal government Constitution, and thus can only be subject to regulation from the federal government. Trade is something that had been excersized since the beginning by the states and therefore they have that power until taken away from them.

The Supreme Court is in DC, therefore no state has power over it anyway (not in their borders), and the other federal courts were created by Congressional law, which stated the manner of their appointment. Since it was created by Congress, only Congress can decide how they are appointed, or how they are managed.

However, until McCulloah v. Maryland, the states believed they COULD regulate federal structures in their states. Marshall said that the states cannot control federal institutions for the survival of the federal government. And because the federal government has its own soveriegnty as well.

However, plenty of framers believed that states could do what Maryland did. Many states had taxes on the Bank of the US at the time (which wasn't very popular).

Those powers not delegated to the US government are reserved to the states.

Where does that amendment say the powers delegated to the US government are totally prohibited from being excersized by the states, without specific prohibition somewhere else in the document? Your argument assumes that the federal government took all the powers of the states, delegated some of it to itself, and then said that stuff we haven't talked about the states can have back. This is totally contrary to Supreme Court decisions talking about the 11th Amendment, which talk about this history of soveriegn immunity.

edit:Read my excerpt of my Con Law book and an opinon by Justice Scalia in post below.

It's a creation of the courts to allow the states to regulate IC under certain circumstances.

Bzzzt. Wrong again. The DCC was created as a mechanism to prevent the states from infringing on interstate commerce.

[Imran Siddiqui]

Here is a quote from my Con Law textbook (American Constitutional Law: Structure and Reconstruction by Charles A. Shanor)

Whatever legislative powers Congress does not have reside with the states or the people. On a conceptual level, both courts and commentators have had difficulty sorting out whether, concerning a particular matter, (1) Congress has exclusive power, (2)Congress and the states have concurrent power, or (3) the states have exclusive power

p. 201

---

Here is a portion of Justice Scalia's opinion in Tyler Pipe Industries, Inc. v. Washington State Department of Revenue, 483 U.S. 232 (1987)

[To] the extent that we have gone beyond guarding against rank discrimination against citizens of other States - which is regulated not by the Commerce Clause but by the Privileges and Immunities Clause - the Court for over a century has engaged in an enterprise that it has been unable to justify by textual support or even coherant nontextual theory, that it was almost certainly not intended to undertake, and that it has not undertaken very well***. There is no concievable reason why congressional inaction under the Commerce Clause should be deemed to have the preemptive effect elsewhere accorded only to congressional action. There as elsewhere, "Congress' silence is just that - silence."

The argument is that when Congress is silent on interstate commerce, it should not have preemptive effect on the states on interstate commerce. Scalia also says it has little textual or coherant nontextual support. Preemption in other parts of the document is only for Congressional action, not simply because Congress has a power (and once again, the states have no power over the federal judiciary because they are part of the federal structure created by the federal government and the states cannot overrule the government).

[Ned]

Perhaps the Defense of Marriage Act is unconstitutional as a violation of an essential liberty known as the right to travel? Not recognizing gay marriages in states where the gay couple migrate imposes a significant burden on the right to travel.

Here is clip from Shapiro v. Thompson, 394 U.S. 618 (1969):

" This Court long ago recognized that the nature of our Federal Union and our constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement. It suffices that, as MR. JUSTICE STEWART said for the Court in United States v. Guest, 383 U.S. 745 (1966): "The constitutional right to travel from one State to another . . . occupies a position fundamental to the concept of our Federal Union. It is a right that has been firmly established and repeatedly recognized.

". . . The right finds no explicit mention in the Constitution. The reason, it has been suggested, is that a right so elementary was conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution created. In any event, freedom to travel throughout the United States has long been recognized as a basic right under the Constitution." In Corfield v. Coryell, 6 F. Cas. 546 (C. C. E. D. Pa. 1825) the right to travel interstate was grounded upon the Privileges and Immunities Clause of Art. IV, § 2. In concurring opinions in Edwards v. California, 314 U.S. 160, reliance was placed on the Privileges and Immunities Clause of the Fourteenth Amendment. In Edwards v. California and the Passenger Cases, 7 How. 283 (1849), a Commerce Clause approach was employed. See also Kent v. Dulles, 357 U.S. 116 (1958); Aptheker v. Secretary of State, 378 U.S. 500(1964); Zemel v. Rusk, 381 U.S. 1 (1965), where the freedom of Americans to travel outside the country was grounded upon the Due Process Clause of the Fifth Amendment."

[CharlesBHoff]

First I donot see same sex marraige as the biggest threat we are faceing there are far more pressing threat like climate canges, glodal warming and etc.

Makeing too many unpopluar or unenforceable laws unmine law enforcement and the legal system an lead normal law aidding people to have conpent to the legal system( dislike).
Than good example of this was when they try to stop people from drink alcohol drink in the 1920's. Than other good example is when we have than woman president try to make girl's watching illegal and how are you going to enforce that.

Than constitution agendment to ban same sex marraige is just plain silly just as the 18 amendment which ban allochol manufacture,sale or transportation but not the drinking of it. It was pass by the state as the state legulator was control
by religious zeal which was than tiny minitores of the america
people of that time. The 21 amendment was arrange use the other menthord to have the people of the state vote on and approve of the amendment without going throught the state
legalature at all.The 21 th repeal the 18th amendment.

[Ben Kenobi]

Murdoch:

So you're arguing that people are sinning when they don't have large families to increase the population.

I fail to see where I have employed the term 'sin' anywhere in my previous post to you. I argue that the state has an interest in sustaining the population.

This still doesn't particularly seem relevant given that the widespread availability of artifial insemination allows gay men to father children and lesbians to have kids if they choose.

Would the gay men, as a unit be fertile? No. You always need the third person, so why don't you argue for a contract of three or more?

I can tell you that in the last dozen years Colorado has had a huge increase in population and its defiantely harmed the general quality of life through issues such as the loss of open space and far worse traffic congestion. You simply can't solve these issues with management techniques, even the most effective solution such as apartments reduce the amount of living space individuals can enjoy, thereby harming their quality of life. You also seem to be ignoring issues with worldwide enviromental damage being magnified by a general population increase.

Traffic congestion cannot be blamed on population increase. Perhaps more efficient controls would relieve the congestion, or perhaps benefits for those who choose to take transit and relieve the burden on the roads. There are plenty of ways to relieve congestion without resorting to population control.

Secondly, is this the argument we see from those handing out condoms? Wear a condom and reduce congestion on our roads? No.

such as apartments reduce the amount of living space individuals can enjoy, thereby harming their quality of life.

Why does living in a NY apartment signify a drop in quality of life? Some people enjoy living in small places close to their workplace, while others prefer the long commute to live in their stand-alone house in the suburbs. Perhaps if more people lived in apartments, they would have a shorter commute, increasing their quality of life, and thus the quality of those around them?

In short, overpopulation problems have more to do with the system, than with the population. In most cases, wealth can be directly attributed to areas with large rather than sparse populations. When you get enough people together, you can begin to specialise in much greater amounts than when seperated over long distances.

I certainly am willing to take a close look at any studies you'd like to present, and at the very least you may convince me you have some sort of scientific basis to support your view that children raised in heterosexual families are in general better off. The fact that I feel its necessary to examine the legitimacy of any study you present, as would be true in any argument involving anyone with any subject, is certainly not justification for you failing to show any examples if you have of through studies with valid methodologies involved.

Said critiques must be more substantive than "oh, they have an agenda." All scientists have an agenda. The better ones recognise their blindspots. I'll post the studies when I have more time. Trying to hammer out a paper tonight.

[Ben Kenobi]

Without any other issues being brought up, you fail to show why marrying a man of his choice would be a bad thing, and therefore any reason for the restrict to restrict his right to do this. You certainly may be reducing or eliminating his chance at personal happyness by restricting who he can marry.

By the analogy, if you don't vote, you should not whine about who's elected. Just as it would be wrong to count the vote of someone who voted through the proper channels as the equivalent of the person who did not bother to vote.

[Ben Kenobi]

David Floyd:

Ideally, the contract would be between two people, and that's it. At best, the state is a neutral observer.

The state, in recognising marriages provides benefits to the couple. Therefore the state has a vested interest. Unless one were to remove the benefits surrounding marriage, the state has a right to regulate the marriages.

Yes, but the fact remains that your religious beliefs have a lot to do with your beliefs about gay marriage. To deny that is preposterous.

Ad hominem. I'm disappointed.

And what proportion of marriages, adjusted for population, would be between gays and lesbians? Not a lot, I assure you.

On the whole, what benefits could society expect to receive from recognising gay unions as marriage? That's the relevant counter-point to the question of the benefits provided by marriage.

And if it didn't, I seriously doubt you'd have a big problem with it. It might disgust you, on the same lines that making out in public disgusts some people, but don't tell me you'd call for the criminalization of homosexuality and denying homosexuals the right to marry.

All of my arguments in this thread would still stand. This is another ad-hominem argument.

Secondly, is their a right to marry under the constitution? If so, how are homosexuals abrogated from exercising the same right as everyone else has? Any man can marry the woman of his choice, provided it is with her consent.

Really? So if I make a contract with you, to, for example, work on your roof, am I also making a contract with the government? And is the nature of that contract such that the government can tell both of us that we have no right to contract with each other for roofing work, unless it's a certain color? And if you answer yes to either of those questions, is that MORAL?

Is the state paying benefits to either one of you? No. Do you want to remove the state's recognition of all marriages, civil or otherwise, and leave the matter to the churches?

[Ben Kenobi]

Than constitution agendment to ban same sex marraige is just plain silly just as the 18 amendment which ban allochol manufacture,sale or transportation but not the drinking of it. It was pass by the state as the state legulator was control
by religious zeal which was than tiny minitores of the america
people of that time.

Refuted earlier in this thread. The majority of Democrats do not support gay marriage, let alone the Republicans.

As for unenforceable, if it is not a marriage, you don't pay out the benefits. Not hard.

[David Floyd]

BK,

I fail to see where I have employed the term 'sin' anywhere in my previous post to you. I argue that the state has an interest in sustaining the population.

If that's the case, then surely you wouldn't object to laws obligating couples to have children, right?

The state, in recognising marriages provides benefits to the couple. Therefore the state has a vested interest. Unless one were to remove the benefits surrounding marriage, the state has a right to regulate the marriages.

That's the problem - the State should not be providing benefits.

Ad hominem. I'm disappointed.

It isn't an ad hominem unless you think that I think religion is bad. I don't. I'm simply pointing out that it sounds like ultimately, your position is based on your religious beliefs, and I still haven't seen you deny this.

On the whole, what benefits could society expect to receive from recognising gay unions as marriage?

Why should a private contract between two individuals necessarily "benefit society"? In fact, I don't even really know what that phrase means, but you seem to be saying that it is more important to take actions "beneficial to society" than it is to be free.

All of my arguments in this thread would still stand. This is another ad-hominem argument.

It's not an ad hominem, and you still haven't denied it.

Secondly, is their a right to marry under the constitution?

Actually I'd argue that there IS a Constitutional right to marry, both as a result of due process, and, looking at it from another direction, there is no enumerated power that allows the government to restrict marriage.

If so, how are homosexuals abrogated from exercising the same right as everyone else has? Any man can marry the woman of his choice, provided it is with her consent.

Let's try another argument. Let's say that the government passes a law against speaking against the government. According to you, we still have free speech, because we all have the right to say whatever we want, as long as it doesn't offend the government.

Is the state paying benefits to either one of you? No.

Let's take benefits out of it, for a second. I don't think the government should pay benefits, and if that were the case, most of your arguments would go away.

Do you want to remove the state's recognition of all marriages, civil or otherwise, and leave the matter to the churches?

I think that marriage, as far as the state is concerned, should simply be an issue of contract law, same as the roof work example. That is, the government is still involved, but only in the capacity of enforcing valid contracts, not in the capacity of telling people what they can and cannot contract to do (unless, of course, a certain contract violates someone's rights, which even you can't argue that a homosexual marriage contract does).

So, then, let me pose this question to you:

Do you think homosexual marriage in any way violates anyone's rights? If so, whose rights and how? If not, if homosexual marriage does not result in rights violations, how can you possibly say it shouldn't be allowed?

[David Floyd]

By the way, WRT my religion comments, I'm not denying that your arguments, at face value, are non-religious - I'm simply questioning their motivation. I just can't see a non-religious motivation, and I wait for you to refute that.

[CharlesBHoff]

Originally posted by Ben Kenobi


Refuted earlier in this thread. The majority of Democrats do not support gay marriage, let alone the Republicans.

As for unenforceable, if it is not a marriage, you don't pay out the benefits. Not hard.

First I think the Democrats pol are too afraid to stand for anything compare to the General Public. I talk to afew bus driver and they agrees if two man or two woman want to get marraige let then do so. The reason some people who hold extrem religious view want than Constitution Amendment is that the Defence of Marriage Act might be rule Unconstitution by the Federal Court. An what are going to do when same sex marriage take place in Churches and the general public get more acception of the idear.

[Berzerker]

Ramo -

Which concept of marriage? That of a heterosexual monogamous sexual relationship? Because that isn't necessarily marriage. See incestual people. Marriage by definition is sanctioned by the state.

Marriage in the US is between one man and one woman only because the US gov't says it is.

Polygamy and yes, even incestuous - half-sisters/brothers - marriages with a certain amount of separation - qualify under the definition based on tradition. I'm not using the US definition, just the definition as marriage has been practiced.

No, the concepts of taking and killing preceded government, but stealing and murdering did not.

Huh?

Since stealing is by definition illegal taking and murder is by definition illegal killing.

No, these were moral considerations before they became legal or illegal. You don't need a government to know if someone trying to kill you without justification is trying to murder you.

Which debates? In any debate, I'd say that the Nazi's (when in power), did not steal and murder. A state by definition cannot steal and murder or do anything else that's illegal.

These debates. That's ridiculous, Ramo.

Not Canada and a few other states.

So what? I didn't say anything about Canada.

Once again, you missed my entire point: the US can redefine marriage, and it should.

I'm not missing the point, I reject the notion that any state can simply re-define words because some special interest group wants words re-defined.

A gov't can't redefine its own laws?

Re-read that quote, I said words, not laws.

Oh come on, this is a totally loaded argument. Let's go over this again:

Murder is defined as (acccording to dictionary.com's primary definition):
The unlawful killing of one human by another, especially with premeditated malice.

The state by definition cannot do anything illegal.

Thus, the state cannot murder.

The definition of murder is broader than that, it's just that the broader definition has become less significant as states have come to rule. Would you call genocide a "lawfull" act? There is a difference between "lawful" and "legal", lawful acts can refer to codes beyond the legal statutes of a state.

Imran -

OMG... reading is fundamental:

Group 2 States: all others, except AK, DC District of Columbia, DE, MT, NH, and OR.

Are you asserting Kansas isn't a US state?

I mis-read the policy.

Don't worry, DD... it isn't like Berz is reading my posts anyway

You just mis-read Dinos post. Shall I use this as an opportunity to make a snide comment about your reading comprehension?

If they disagree, Congress wins... supremacy clause.

Then the power is not shared.

Yes, according to your twisted reading of my argument. The Supreme Court and federal judiciary are things created by the federal government Constitution, and thus can only be subject to regulation from the federal government. Trade is something that had been excersized since the beginning by the states and therefore they have that power until taken away from them.

The federal power to regulate interstate commerce was created by the Constitution too. So if the states share federal powers created by the Constitution, why not the power to advise and consent on judicial nominees? You just quoted an opinion from Scalia where he says the states are not pre-empted from regulating commerce if Congress has been silent on the matter, doesn't that mean if Congress is not silent, the states are pre-empted? So which body has the power, Congress, the states or both? Congress can choose to act on the power or not, but the power belongs to Congress. The states only enter the picture once Congress has made it's choice (and that relies on Scalia's opinion, not the Framers)...

The Supreme Court is in DC, therefore no state has power over it anyway (not in their borders), and the other federal courts were created by Congressional law, which stated the manner of their appointment. Since it was created by Congress, only Congress can decide how they are appointed, or how they are managed.

But you said the states share the enumerated powers with Congress unless specifically prohibited. And it doesn't matter where the SCOTUS is, nominees aren't members of the SCOTUS until confirmed. The power to create federal courts comes from the Constitution, not Congress, so that is an enumerated power which, according to your argument, is shared by the states.

However, until McCulloah v. Maryland, the states believed they COULD regulate federal structures in their states. Marshall said that the states cannot control federal institutions for the survival of the federal government. And because the federal government has its own soveriegnty as well.

And that is a doctrine that supports my position, the federal government is also sovereign. Therefore it's powers cannot be shared with the states any more than the states' powers are shared with Congress. That's why the 10th Amendment says those powers not delegated to the US government are reserved to the states.

Where does that amendment say the powers delegated to the US government are totally prohibited from being excersized by the states, without specific prohibition somewhere else in the document?

Those powers not delegated to the US government are reserved to the states. If a power is delegated to the US government, that power is not reserved to the states.

Your argument assumes that the federal government took all the powers of the states, delegated some of it to itself, and then said that stuff we haven't talked about the states can have back. This is totally contrary to Supreme Court decisions talking about the 11th Amendment, which talk about this history of soveriegn immunity.

No Imran, I assume the 10th Amendment means what it says - that certain powers were given (delegated) to the US government and those powers not given are kept (reserved) by the states.

Bzzzt. Wrong again. The DCC was created as a mechanism to prevent the states from infringing on interstate commerce.

You're right, I'm thinking of the Pike test. The DCC is a mechanism to prevent the states from infringing on interstate commerce when Congress is silent on an issue, i.e., "dormant".

The Commerce Clause (Article I, Section 8, Clause 3) grants gives Congress the power to regulate interstate commerce. While states share certain powers with the federal government (eg.the power to tax their own citizens), the Supreme Court has held that the power to regulate interstate commerce is an exclusive one. When the citizens of the United States ratified the Constitution, and within it the delegation of such regulation to the federal government, there arose a negative inference that States surrendered their power to regulate interstate commerce. Even where Congress chooses not to exercise such power, States cannot regulate (even when Congress sleeps, that exclusive power is dormant).

However, the Supreme Court recognizes that States may exercise police powers to safeguard their citizens. At times, laws passed under such authority affect interstate commerce. The Supreme Court created the Pike test (Pike v. Bruce Church) to see whether such a law can survive: so long as state laws do not regulate commerce qua commerce, discriminate against interstate commerce, or overly burden commerce, the courts will refuse to strike them down. Note that where a law has an extraterritorial effect, courts will often presume its purpose was one of economic protectionism and outside a state's police powers. But where a state law does not violate the exclusive nature of the Commerce Clause (always present,ie.dormant), and is not preempted by federal law, the state law will survive a constitutional challenge.

Note that so long as the Constitution does not expressly prohibit the action, Congress may delegate power back to the Sates. But where there is not such express authorization, States may not regulate interstate commerce, even in a vacuum of Congressional action.

http://faculty.lls.edu/~manheimk/cl1/dormant2x.htm

Here is an example of the DCC being enforced recently:

http://www.gigalaw.com/articles/2001-all/burke-2001-07-all.html

Here is a quote from my Con Law textbook (American Constitutional Law: Structure and Reconstruction by Charles A. Shanor)

(2)Congress and the states have concurrent power, or (3) the states have exclusive power

And? The states and Congress have the power to prosecute murderers within their respective jurisdictions, and that is a concurrent power. That doesn't mean the states share Congress' power to regulate interstate commerce. Powers cannot conflict and they do if the states share the power to regulate IC...

From Scalia's opinion:

There is no concievable reason why congressional inaction under the Commerce Clause should be deemed to have the preemptive effect elsewhere accorded only to congressional action. There as elsewhere, "Congress' silence is just that - silence."

According to that logic, if Congress doesn't opt to exercise a delegated power, the states can. That flies in the face of the 10th Amendment. Scalia's opinion contradicts the history of the ICC and DCC dating back to Justice Marshall who recognised the legitimacy of Congress' dormant power wrt ICC.

If you and I agree to a contract where I have the delegated power to sell a car we've built, then you don't get that power if I choose not to sell the car.

Now, why do you keep avoiding my question? Why are the states lobbying Congress for the power to regulate the internet? Congress has said no up until now and the states continue their effort, why?