A Different Perspective On Recent Idiocy

Orin Kerr, while indisputably a bright guy, seems to have a great lack of common sense. I base this off his statement here:
It's difficult to distinguish interstate commerce from intrastate commerce and commerce from non-commerce, and it's difficult to distinguish public use from private use.
Well, no, it’s only difficult if you’re confused and/or a lawyer. Interstate commerce is commerce that crosses state lines. No matter what people in the legal profession have argued, if the exchange of goods or services does not cross the boundary of a sovereign state, it’s not interstate. If the commerce is conducted entirely within the boundaries of a state, it’s intrastate. This is not complicated, although the legal profession has made it so. Similarly, commerce is distinguished from non-commerce in that there is an exchange of goods or services. If I give you a watermelon and receive nothing in return, it’s not commerce. Similarly, if I grow a plant in my backyard and consume it myself, it’s not commerce. The concept of exchange is basic to the idea of commerce. No exchange, no commerce. If you give me 20 bucks for some weed, it’s commerce. (Note to constitutional scholars: The concept of "affecting the market" is crap made up by weasels to justify abrogating the Constitution, mmkay?)

In a similar vein, public use is not that hard to distinguish from private use. If the government ends up owning the property, it’s public use. If another private entity ends up owning the property, it ain’t public use. Are we all clear on this? The entire legal profession can argue about how black is white and up is down and bow down before the altar of stare decisis all damn day. It doesn’t change the underlying reality. Which, in case you’re forgetting, is that the city of New London fucked over a bunch of people for the benefit of Pfizer and tried to claim that was a ‘public use’. You don’t need a law degree to see that for the bullshit it most certainly is.

I think it’s time to remind people: just because it’s legal doesn’t mean it’s right.


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