-Deductive (Ableitung)
-Applies the will of the legislator
*rules
Legal Process Interest Balancing (Interessenjurisprudenz; Interessenabwägung)
1) Legal will is not always clear
*unforseen situations
*badly written legislation
2) Formal law does not always work substantive justice
So, legal interpretation should be flexible and seek substantive justice instead of formal objectivity
Identify competing interests, evaluate and compare them
Cost benefit analysis
*standards, policies, norms
Interessenabwägung – interest balancing – which factors? what weight?
-winds up bringing economics into the law.
What would a textual analysis look like?
(trade = buying and selling of goods) (free movement of goods)
“commerce” = buying and selling of goods + provission of services (goods, services)
“interstate” = accross state lines<
federal power may be implied when “Necessary and Proper” as a Reasonable Means to an Enumerated End
(^elastic clause)
(necessary and proper were interpreted by Marshall as Synonyms)
*McCulloch
“effects analysis”: a series of discrete intra-state actions effecting interstate commerce may be regulated by congress if such is necessary and proper
“purposive reasoning” (Zweckmäßig; teleologisch)
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The case: U.S. v. Morrison
“Gender-motivated crimes of violence are not, in any sense of the phrase, economic activity.”
“Given these findings and arguments, the concern we expressed in Lopez—that Congress might use the Commerce Clause to completely obliterate the Constitution‘s distinction between national and local authority” CF EU – “ever closer union”. US “a more perfect union”.
“Indeed, if Congress may regulate gender-motivated violence, it would be able to regulate murder or any other type of violence since gender motivated violence, as a subset of all violent crime, is certain to have lesser economic impacts than the larger class of which it is a part. “
Rules
In Jones & Laughlin Steel, the Court warned that the scope of the interstate commerce power ‘must be considered in the light of our dual system of government and may not be extended so as to embrace effects upon interstate commerce so indirect and remote that to embrace them, in view of our complex society, would effectually obliterate the distinction between what is national and what is local and create a completely centralized government’ “ ***.
As we observed in Lopez, modern Commerce Clause jurisprudence has “identified three broad categories of activity that Congress may regulate under its commerce power.” First, “Congress may regulate the use of the channels of interstate commerce.” Second, “Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities.” [Third,] “Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, … i.e., those activities that substantially affect interstate commerce.”
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Hepburn v. Griswold compare Zivilrecht BGB AT Rubelfall RGZ 105, 406
Can Congress print fiat currency?
Can Congress make gold debts into fiat debts?
Implied powers question
Text? Context: Structural Argument
Contracts clause
Takings clause
Cf. Federal versus State monetary powers
History? Articles of Confederation – Weak financial powers
Teleology: where do we want to go? What would the decision lead to?
Sovereignty versus Property
Recall that the sovereign power was analogized to property: the king as proprietor the subjects as property.
Property = usus + fructus + abusus
Compare: the rise of the right to property as a fundamental right
Expropriations are known colloquially (Umgangssprache) as “Takings” (Enteignung)