I got this bit from Legal Theory Blog in the discussion of the Raich case. Justice Stevens says:
In assessing the validity of congressional regulation, none of our Commerce Clause cases can be viewed in isolation. As charted in considerable detail in United States v. Lopez, our understanding of the reach of the Commerce Clause, as well as Congress? assertion of authority thereunder, has evolved over time.And which way has it evolved? Is it expanding the rights of citizens and reducing the powers of government? Well no. Justice Stevens explains:
The Commerce Clause emerged as the Framers? response to the central problem giving rise to the Constitution itself: the absence of any federal commerce power under the Articles of Confederation.25 For the first century of our history, the primary use of the Clause was to preclude the kind of discriminatory state legislation that had once been permissible.26 Then, in response to rapid industrial development and an increasingly interdependent national economy, Congress ?ushered in a new era of federal regulation under the commerce power,? beginning with the enactment of the Interstate Commerce Act in 1887, 24 Stat. 379, and the Sherman Antitrust Act in 1890, 26 Stat. 209, as amended, 15 U. S. C. §2 et seq.27 Cases decided during that ?new era,? which now spans more than a century, have identified three general categories of regulation in which Congress is authorized to engage under its commerce power. First, Congress can regulate the channels of interstate commerce. Perez v. United States, 402 U. S. 146, 150 (1971). Second, Congress has authority to regulate and protect the instrumentalities of interstate commerce, and persons or things in interstate commerce. Ibid. Third, Congress has the power to regulate activities that substantially affect interstate commerce. Ibid.; NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 37 (1937). Only the third category is implicated in the case at hand.So let me ask my Republican friends who used to think that Wickard was an over reach by FDR into areas the Federal Government had no authority to regulate. Do you agree with the ever flexible Constitution theory? Your most vaunted conservative Judge, Scalia, concurs with the opinion and substantially agrees that the Federal Government has regulatory power over items that are not actually sold, and do not cross state lines.
Our case law firmly establishes Congress? power to regulate purely local activities that are part of an economic "class of activities" that have a substantial effect on interstate commerce. * * * As we stated in Wickard, ?even if appellee?s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.? Id., at 125. We have never required Congress to legislate with scientific exactitude. When Congress decides that the "total incidence" of a practice poses a threat to a national market, it may regulate the entire class. (emphasis added)
So where is the Conservatism of the Court? Thomas. He says that there are well defined limits to Federal power. He goes back to the original understanding of the Constitution.
And to my lefty friends, is Thomas still your Uncle Tom? Scalia's water boy?
The Federal government now has unlimited police powers in the nation. It could prosecute simple theft. Why? Well the object of the thief could be sold in interstate commerce. Thus the thief is interfering with interstate commerce. Thus thievery could be a Federal crime. This is especially true for shoplifting.
There are now no understandable limits on the Federal Government. The limits are whatever five Justices decide (they decided for States Rights in Lopez). God help us all when Congress is in session.