Think I'm joking? This is the stated judicial philosophy of the majority of Supreme Court justices. There is no traditional deeply rooted in American tradition that says anything about the Internet, either.
Moreover, when taking that mode of interpretation, it doesn't say anything about the States, nor does the 14th Amendment say anything about some of the rights protected against federal intrusion by the Bill of Rights.
The Court will rely on this precedent where convenient, I suspect.
It's complicated.
Obviously a website cannot simply proclaim to only facilitate the dissemination of information to people exclusively in one state, or to exclude people in another. There is practically no concept of mutual exclusivity or mutual inclusivity on the internet, so then it's abjectly "interstate" or even "international". But it's not that simple.
The commerce clause tends to apply to federal laws, of things that transit state or territorial lines. Just because something could transit a state line, does not mean the all things in all states are automatically under federal regulation, or that federal regulation has supremacy. Obviously certain things are legal in one state but not in others, and things might be legal or illegal at a federal level regardless of interstate commerce.
The question is, is free speech subject to interstate commerce? What about commercial speech (which is afforded less 1st amendment protections)? Since we are talking about free speech, commercial or otherwise, does the idea of commerce clauses even apply? According to Heller case, and recently reaffirmed by the NY v Bruen case, when dealing with civil liberties the courts must apply strict scrutiny.
So it might boil down to a simple 1st amendment case without any commerce clause mental gymnastics.
Laws are allowed until the Court rules on them. The states can pass all manner of fucked up laws (and they will), and they will stand while we figure this out -- or, until the Supreme Court rules in their favor.
Edit: changing Supreme Court to Courts, since the appellate court exists. But the point is the same.
No, they aren't. Unconstitutional laws are unconstitutional ab initio, and lower courts can and do refuse to enforce laws on that basis, and the Supreme Court may never even get to rule on them since appeal to the Supreme Court is not by right; the farthest that cases in the federal system get by right is the Court of Appeals.
Courts don't enforce laws, but I get what you mean. I have no confidence whatsoever that appellate courts will do anything about these laws. There has been a willful, deliberate, strategic stacking of the judiciary starting in the early 2000s to get us to this place.
Sorry to repeat myself, but we really can't all sit back and reference our civics books as if this system is still functioning to protect us against these fucked up laws. It's over. Stare decisis is now at the whim of the political affiliation of the courts.
Out of curiosity, what about the current makeup of appellate courts in this region + the Supreme Court makes you think this is going to get shut down quickly?
That being said I would hope this is an open and shut enoght case under the 1st Amendment and the Interstate Commerce clause to justify this. Which I would hope overrules personal agendas in the court.
I know a lot of people are upset with the overturn of Roe v Wade, but even the initial judges in that case said the constitutional ground that case was ruled on was shaky, which my understanding is the basic job of the SC is to rule on the constitutionality of laws. Now decades of an activist judiciary have distorted that concept as the legislative branch has chosen to abdicate their responsibility for their own gain, but the fact still stands, congress should be making the laws and the courts deciding if they are constitutional.
The Supreme Court ruled on the constitutionality the first time. If it’s up to Congress to make the laws, then why did the Supreme Court intervene this time? They could have kicked this back to congress and said: “We already ruled on this. If you want a different outcome, do your job.” But they didn’t.
Your citation to Wickard v. Fillburn for support of this is...bizarre. That case took what some view as an unreasonably expansive view of the federal power under the ICC, but that does the opposite of supporting the contention that it was “hollowed out” in a way that expands state power into the reserved federal space.
It explicitly says Congress however it is currently interpreted that it applies to all governmental organizations. Federal, state and local. It has previously been argued that the same limitation on interstate law existed at the state level, as the authority of a state could not exceed that of the congress when it came to national matters. If congress effectively has no limitation, there is no limitation to exceed.
No, it isn't.
States are limited by the 14th Amendment. Now, the Supreme Court has interpreted the Due Process Clause of the 14th Amendment to apply a whole lot of substantive rights against the states, including rights exactly identical to those protected against federal interference by the 1st, 2nd, 3rd (but only, to date, but one Circuit Court), 4th, 5th, most of the 6th (except for the jury locality requirement), and 8th (but maybe not the excessive bail requirement) amendments.
> It has previously been argued that the same limitation on interstate law existed at the state level, as the authority of a state could not exceed that of the congress when it came to national matters.
The interstate commerce clause argument against the state isn't that states can't do what Congress can't: that states can regulate purely intrastate Commerce is not subject to serious dispute.
The argument is that the interstate commerce clause itself prohibits many state regulations of interstate commerce, and further empowers Congress to further narrow the permissible space of state regulations of interstate commerce.
> The argument is that the interstate commerce clause itself prohibits many state regulations of interstate commerce
If you argue that states have the right to regulate interstate commerce AND the congress can pass a bill in regards to abortion because doing so is in the interest of interstate commerce. Then why can't a state pass a law that allows fathers of children that were aborted in another state to sue the abortion provider that did the procedure?
On the other hand what if we agreed that having an abortion isn't a matter of interstate commerce, then congress would not have the authority to regulate it nationally and states wouldn't be able to do so either.
States have the power to regulate intrastate commerce within their own state. They have very limited power with regard to interstate commerce (limited, very roughly, to nondiscriminatory regulation of transactions within the state which impact interstate commerce and where such regulation also is not in conflict with federal regulation of interstate commerce), because interstate commerce is expressly Constitutionally a federal function, and state action in that domain otherwise interferes with that federal function. A more expansive view of the federal power here narrows, rather than expands, the state power.
The law isn't determined on a factual, textual or even a logical basis. Gitmo, civil asset forfeiture, mass surveillance, dread scott, alien and sedition, japanese american internment camps, executive order 6102, roe. It's a political system and it reflects the political thinking at the time. The consensus you outline here is a bad idea, full of logical leaps, and it will lead to ruin, but I guess it will take the other guys getting into power to prove that to some people.
You are talking about how things are, I'm trying to say that they could be something else.
SC would have no recourse for web hosts that have no nexus within it's borders?
Are they going to start to force local ISP's to block out of state hosts?