"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Monday, November 5, 2018

On the bar to access to court to litigate injuries from vaccines, the rule of law and federalism in the United States - Part II. The "rule of law" as measured by comparative power of gun, womens' rights and pharma lobbies.

In my previous blog, here, I published the entire opinion of the U.S. Supreme Court approving - and expanding through a precedent onto the entire United States and on all state courts - the ban to allow children who were injured and legal representatives of children who died from vaccines to obtain any remedy in court for negligent design of such vaccines.

In this blog article, starting legal analysis of that decision.

Tomorrow the nation will go to election polls.

Elections in the United States are often celebrated as the indicator of the so-called "rule of law".

I have written on this blog recently though how, right about election time and during election campaigns, the most powerful and the most unaccountable branch of the government in the United States, the judiciary, reinforced its gag upon the most knowledgeable group of witnesses about misconduct and unfitness of judges and judicial candidates - attorneys, through "regulation of the practice of law".

The judiciary flat out sent a message through a case suspending a New York attorney of 27 years and forbidding him to earn a living in his profession, and the message was that an attorney cannot dare criticize the particular branch of the government that regulates attorneys, the judiciary - 1st Amendment be damned, due process of attorneys' clients and their right to impartial judicial review be damned.

So, an attorney can exercise his client's due process and 1st Amendment rights or his own 1st Amendment rights to criticize the government, if that government is the judiciary, regulator of attorneys, only at the cost of the attorney's livelihood.

And, an attorney, acting as a citizen and taxpayer, can exercise his right as a citizen and taxpayer paying the salary of government officials and employing them - to engage in public debate about fitness of public officials, if he criticizes Trump and helps "the resistance" as part of a plea deal (Michael Cohen) to gain a lighter sentence in December of 2018, than it is laudable, and if it is criticism of the judicial branch, like attorney Gino Giorgini did, then it is a professional suicide.

Go figure.

And, the U.S. government (public servant, servant of We the People, the popular sovereign) forbids its sovereign (members of We the People) from going outside of the country and complain to international courts, like citizens of other countries are allowed to do, about human rights violations within the country.

Once again.  A public servant.  Forbidding.  Its employer and sovereign, We the People.  To complain.  About the public servant's unfitness and misconduct.  Outside of the country.

That is also called "the rule of law", the U.S. version of it.

And, there is yet another variety of the "rule of law", the U.S. version of it, called "federalism".

It is used by courts, federal appointed judges and state judges who you are going to vote for tomorrow, and by the U.S. Congress, the one you are going to vote for in the midterms tomorrow - every which way that would benefit, no, not You the People, but the so-called "institutional interests", those who lobbied better, who have more money and who paid more to "get the ear" of the right "public servants" to quash the rights of You the People - like the rights of the children who were injured or died from application of vaccines.

Let's see what manipulations of "the law" are used to achieve such a glorious result.

I never voted for Trump and, probably, never will, but Trump is such an interesting phenomenon for me as a legal analyst - with election of Trump so many things became clearer and came to the fore in legal analysis.

For example, that same idea of "federalism".

The clash between regulation of state laws by the federal government, and the right of the states to regulate through their own laws on their own and to be left alone and not subject state laws to regulation and pre-emption by the federal government.

We know from school that the U.S. is a nation of a severely limited (supposedly) government that must act for the benefit of We the People only.

We know from school that the U.S. is a nation of an even more severely limited federal government that can act only on the basis of its Supremacy Clause, Article VI Clause 2 of the U.S. Constitution which includes only THREE things:

"This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."

Once again, the Supremacy Clause includes 3 things:
  • The text of the U.S. Constitution itself (which includes the text of its Amendments);
  • The text of "the laws of the United States which shall be made in pursuance thereof", and lawmaking powers in the federal government, by the U.S. Constitution are given, under Article I exclusively to the U.S. Congress; and
  • "All treaties made, or which shall be made, under the authority of the United States".

Note the absence in the Supremacy Clause of the so-called "precedents", decisions of federal courts including the U.S. Supreme Court.

SCOTUS decisions are, according to the U.S. Constitution, NOT the Supreme Law of the Land.

Let's look further into the law-making power of the federal government, the U.S. Congress.

The U.S. Congress may only make laws based on authority given to it by one of the provisions of the U.S. Constitution - not to infringe of the power of We the People in general and of We the People, voters in the states.

Here is Article I of the U.S. Constitution.  Exclusive law-making powers of the U.S. Congress.

Article I Section 8 and Section 9 Clause 1 define what exactly are the allowed bases of the law-making powers of the U.S. Congress, bear with me, it is about your own rights:

Section 8.

The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;
To borrow money on the credit of the United States;
To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;
To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;
To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;
To provide for the punishment of counterfeiting the securities and current coin of the United States;
To establish post offices and post roads;
To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;
To constitute tribunals inferior to the Supreme Court;
To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;
To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;
To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;
To provide and maintain a navy;
To make rules for the government and regulation of the land and naval forces;
To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;
To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;--And
To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

Section 9.

The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.


We are reviewing, remember, whether it is legal for the federal government to forbid Americans injured by application of vaccines to seek redress of those injuries through jury trials in state or federal courts.

The U.S. Congress established such a bar by enacting the National Childhood Vaccine Injury Act of 1986, and the U.S. Supreme Court upheld such a bar as lawful in 2011.

The Food and Drug Administration informs you of the long history of how it has come into being and how its existence was approved by the U.S. Supreme Court.

Yet, what it does not inform you about is the very basics of its existence - what clause of Article I was used by the U.S. Congress to enact its enabling federal statute, the Food, Drug and Cosmetics Act of 1938.

It does hint though at which basis was used - by repeatedly using in description of various food and drug-regulating acts "interstate commerce".

Those hints correspond with the description of the National Childhood Vaccine Injury Act of 1986 - and for those preparing to "vote blue because democracy depends on it", consider that this act was passed with bipartisan support:

A Democrat, Rep. Henry A. Waxman, a lawyer, sponsored (introduced) the bill that was enacted as the National Childhood Vaccine Injury Act,

and a Republican president, Ronald Reagan, signed it into law.

Note that in the House the Bill was introduced in the "Energy and Commerce" and the "Ways and Means" Committees.

In other words, the bill was introduced under the power to regulate interstate commerce, not general welfare of people, because - guess what - the U.S. Congress has NO POWER to regulate general welfare of people, that power, under the 10th Amendment, belongs to STATE governments.

But, let's see what the "interstate commerce" clause of Article I - giving exclusive lawmaking power as to federal laws to the U.S. Congress - says.

Article I Section 8 Clause 3 says:

"The Congress shall have power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes".

The Congress has no right to regulate commerce between individual sellers within the state, only between governments:

  • Between the U.S. government and foreign governments;
  • between the states; and
  • with the Indian tribes.
That is all.

You may know that every licensed attorney in the United States is taught a mandatory course of constitutional law in law school, then is tested on knowledge of the U.S. Constitution on the bar examination and then takes an oath of loyalty to the U.S. Constitution.

And, every Senator and Representative of the United States takes an oath to uphold the U.S. Constitution.

So, did lawyer Henry A. Waxman, portrayed nowadays as a formidable "warrior" supposedly feared by the drug industry - that was spending, as of 11 years ago, $600,000 on lobbying the U.S. Congress - did that lawyer NOT know that he, as a member of federal government, may not regulate PEOPLE's "general welfare", but can only regulate "general welfare" of the country - meaning, in international forums?

Of course, he knew about that.

That's why he "sponsored" the bill for review of "energy and commerce" Committee in the House of Representatives.

And here Trump has come very handy.

Because since his election states have been suing Trump for - guess what - violation of states' 10th Amendment right to handle care about general welfare and safety of the people without intervention from the federal government.

That would be the sanctuary city lawsuits and nationwide injunctions based on it - because, according to federal courts that approved such injunctions, the federal government (Trump) may not interfere with how the state takes care, or prosecutes, people residing within the states.

The press cites often in that regard to the "anti-commandeering clause" of the 10th Amendment.

Let's see whether there is such a clause there.

Here is the text of the 10th Amendment, in its entirety:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people".

This is about:

  1. powers of the federal government restricted only to the powers given by the text of the U.S. Constitution, no more, and
  2. the rights of the states to regulate on issues for which the federal government is not given powers to regulate strictly in the text of the U.S. Constitution, and, most importantly for our analysis, 
  3. about individual rights of the people to all rights that are not given to regulate, strictly by the text of the U.S. Constitution, to the U.S. government, and 
the rights of the states to regulate general welfare of THE PEOPLE is not - as many federal courts, through nationwide injunctions against Trump administration on the issues of welfare of illegal immigrants have so far proven - within the power of the federal government to regulate.

Even before Trump's election, a federal statute introduced by the U.S. Congress under its power to regulate interstate commerce, but used to regulate the general welfare of the people and individual rights, was struck by the U.S. Supreme Court as unconstitutional.

You know which statute that was?

A portion of Violence Against Women Act providing for federal civil remedies of victims of gender-motivated violence.

The U.S. Supreme Court said in U.S. v Lopez, upholding the reversal of a criminal conviction of a 12th grader who "arrived at Edison High School in San Antonio, Texas, carrying a concealed .38 caliber handgun and five bullets", for a federal crime of possession of a firearm within a "school zone", that "[t]o uphold the Government's contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States" and that "[t]o do so would require us to conclude that the Constitution's enumeration of powers does not presuppose something not enumerated, and that there never will be a distinction between what is truly national and what is truly local" (internal citations omitted).

More importantly as to the power of the U.S. Congress to even enact The Gun Free School Zones Act of 1990", here is the chain of reasoning of the U.S. Supreme Court in striking down The Gun Free School Zones Act of 1990, in its federal crime part, as unconstitutional and agreeing with the federal court of appeals that reversed the conviction on these grounds:

"respondent challenged his conviction based on his claim that §922(q) exceeded Congress' power to legislate under the Commerce Clause. The Court of Appeals for the Fifth Circuit agreed and reversed respondent's conviction. It held that, in light of what it characterized as insufficient congressional findings and legislative history, "section 922(q), in the full reach of its terms, is invalid as beyond the power of Congress under the Commerce Clause".

Here is the chain of the U.S. Supreme Court's reasoning:

  • "The Constitution creates a Federal Government of enumerated powers";

  • "The Constitution delegates to Congress the power "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." U. S. Const., Art. I, §8, cl. 3. ";
  • "Commerce, undoubtedly, is traffic, but it is something more: it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse." 
  • "The commerce power "is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution."
  • "It is not intended to say that these words comprehend that commerce, which is completely internal, which is carried on between man and man in a State, or between different parts of the same State, and which does not extend to or affect other States. Such a power would be inconvenient, and is certainly unnecessary.

And here is the kicker in the U.S. Supreme Court's argument:

"Section 922(q) is a criminal statute that by its terms has nothing to do with "commerce" or any sort of economic enterprise, however broadly one might define those terms. [n.3] Section 922(q) is not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated. It cannot, therefore, be sustained under our cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce."

So, BUYING a firearm and bullets and bringing it into the school zone is not connected with commerce or "economic enterprise" that Congress is allowed to regulate, especially through criminal law.

" Rehnquist, C. J., delivered the opinion of the Court, in which O'Connor, Scalia, Kennedy, and Thomas, JJ.,joined. Kennedy, J.,filed a concurring opinion, in which O'Connor, J., joined, post, p. 568. Thomas, J., filed a concurring opinion, Stevens, J., and Souter, J., post, filed dissenting opinions. Breyer, J., filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ., joined".

Rehnquist and his former lover O'Connor, Scalia and his "shadow" Thomas and Kennedy, the "swing vote", carried the majority in U.S. v. Lopez, with Kennedy and O'Connor (the usual "swing votes") also filing concurring opinions, and there were 4 dissenters: 

  1. Stevens;
  2. Breyer;
  3. Souter, 
  4. Ginsburg.

Within 4 years, relying on Lopez, the U.S. Supreme Court struck not a criminal conviction, but a federal civil remedy stemming from commission of a state crime, rape.  

The federal civil remedies portion of The Violence Against Women Act, which sought to protect by federal law victims of gender-motivated violence (rape) was struck down by the U.S. Supreme Court just 6 years into the Act's existence, in 2000.

The voting record was same as in U.S. v. Lopez:

"Rehnquist, C. J., delivered the opinion of the Court, in which O'Connor, Scalia, Kennedy, and Thomas, JJ., joined. Thomas, J., filed a concurring opinion, post, p. 627. Souter, J., filed a dissenting opinion, in which Stevens, Ginsburg, and Breyer, JJ., joined, post, p. 628. Breyer, J., filed a dissenting opinion, in which Stevens, J., joined, and in which Souter and Ginsburg, JJ., joined as to Part I—A, post, p. 655."

The reasoning of the U.S. Supreme Court in denying federal civil remedies to victims of rapes was as follows:

"In these cases we consider the constitutionality of 42 U. S. C. § 13981, which provides a federal civil remedy for the 602
*602 victims of gender-motivated violence. The United States Court of Appeals for the Fourth Circuit, sitting en banc, struck down § 13981 because it concluded that Congress lacked constitutional authority to enact the section's civil remedy. Believing that these cases are controlled by our decisions in United States v. Lopez, 514 U. S. 549 (1995), United States v. Harris, 106 U. S. 629 (1883), and the Civil Rights Cases, 109 U. S. 3 (1883), we affirm."

Note the reasoning.

The U.S. Supreme Court may only apply the written law, and the Supremacy Clause does not include SCOTUS' prior decisions.

Yet, it is their prior decision and not exceeding the power under the Commerce Clause that is prominent in U.S. v. Morrison.

This is what happened to the woman suing for the federal civil remedy after a rape on the campus of Virginia Tech.

Petitioner Christy Brzonkala enrolled at Virginia Polytechnic Institute (Virginia Tech) in the fall of 1994. In September of that year, Brzonkala met respondents Antonio Morrison and James Crawford, who were both students at Virginia Tech and members of its varsity football team. Brzonkala alleges that, within 30 minutes of meeting Morrison and Crawford, they assaulted and repeatedly raped her. After the attack, Morrison allegedly told Brzonkala, "You better not have any . . . diseases." Complaint ¶ 22. In the months following the rape, Morrison also allegedly announced in the dormitory's dining room that he "like[d] to get girls drunk and . . . ." Id., ¶ 31. The omitted portions, quoted verbatim in the briefs on file with this Court, consist of boasting, debased remarks about what Morrison would do to women, vulgar remarks that cannot fail to shock and offend.
Brzonkala alleges that this attack caused her to become severely emotionally disturbed and depressed. She sought assistance from a university psychiatrist, who prescribed 603*603 antidepressant medication. Shortly after the rape Brzonkala stopped attending classes and withdrew from the university.
In early 1995, Brzonkala filed a complaint against respondents under Virginia Tech's Sexual Assault Policy. During the school-conducted hearing on her complaint, Morrison admitted having sexual contact with her despite the fact that she had twice told him "no." After the hearing, Virginia Tech's Judicial Committee found insufficient evidence to punish Crawford, but found Morrison guilty of sexual assault and sentenced him to immediate suspension for two semesters."

Note the "finding" of 
"guilty" and "sentencing" not by a court, but by the "Virginia Tech's Judicial Committee" - while the power to find "guilty" for the crime of rape is vested in Virginia only in the state courts.

Note that it is now the students that "upheld the conviction" and the university administration that ultimately "set it aside":

"Virginia Tech's dean of students upheld the judicial committee's sentence. However, in July 1995, Virginia Tech informed Brzonkala that Morrison intended to initiate a court challenge to his conviction under the Sexual Assault Policy. University officials told her that a second hearing would be necessary to remedy the school's error in prosecuting her complaint under that policy, which had not been widely circulated to students. The university therefore conducted a second hearing under its Abusive Conduct Policy, which was in force prior to the dissemination of the Sexual Assault Policy. Following this second hearing the Judicial Committee again found Morrison guilty and sentenced him to an identical 2-semester suspension. This time, however, the description of Morrison's offense was, without explanation, changed from "sexual assault" to "using abusive language."
Morrison appealed his second conviction through the university's administrative system. On August 21, 1995, Virginia Tech's senior vice president and provost set aside Morrison's punishment. She concluded that it was "`excessive when compared with other cases where there has been a finding of violation of the Abusive Conduct Policy,' " Brzonkala v. Virginia Polytechnic Institute and State Univ., 132 F. 3d 950, 955 (CA4 1997). Virginia Tech did not inform Brzonkala of this decision. After learning from a 604*604 newspaper that Morrison would be returning to Virginia Tech for the fall 1995 semester, she dropped out of the university."

In other words, there was no criminal conviction, and thus, the court could easily dismiss the case on the grounds that the condition precedent (criminal conviction in state court) was not satisfied.

But, the court somehow had to go further and strike the portion of the statute giving the federal civil remedy to state crime (rape) victims as unconstitutional.

The court, first, pointed out that the major point in reviewing constitutionality of a federal statute introduced under the "interstate commerce clause" is whether the statute had anything to do with economic regulation.

"Both petitioners and Justice Souter's dissent downplay the role that the economic nature of the regulated activity plays in our Commerce Clause analysis. But a fair reading of Lopez shows that the noneconomic, criminal nature of the conduct at issue was central to our decision in that case."

Continuing review of VAWA according to principles established in review of the Gun Free School Zone Act, the court mentioned that:

"The second consideration that we found important in analyzing § 922(q) was that the statute contained "no express jurisdictional element which might limit its reach to a discrete set of firearm possessions that additionally have

an explicit connection with or effect on interstate commerce." Id., at 562. Such a jurisdictional element may establish that the enactment is in pursuance of Congress' regulation of interstate commerce.
Third, we noted that neither § 922(q) "`nor its legislative history contain[s] express congressional findings regarding the effects upon interstate commerce of gun possession in a school zone.' "

In other words, while the act was introduced under the Commerce Clause, neither its legislative history not its text does not connect it in any way with regulation of commerce.

But, probably, the main, most forceful argument of the U.S. Supreme Court was - while you start trying to stretch the text and meaning of the statute and try to connect anything under the sun with "interstate commerce", when does it end.  Such boundless interpretation of the Interstate Commerce Clause gives unlimited power to the federal legislature and government and undermines the whole idea of "limited federal government", clearly embedded into the U.S. Constitution:

Finally, our decision in Lopez rested in part on the fact that the link between gun possession and a substantial effect on interstate commerce was attenuated. Id., at 563-567. The United States argued that the possession of guns may lead to violent crime, and that violent crime "can be expected to affect the functioning of the national economy in two ways. First, the costs of violent crime are substantial, and, through the mechanism of insurance, those costs are spread throughout the population. Second, violent crime reduces the willingness of individuals to travel to areas within the country that are perceived to be unsafe." Id., at 563-564 (citation omitted). The Government also argued that the presence of guns at schools poses a threat to the educational process, which in turn threatens to produce a less efficient and productive work force, which will negatively affect national productivity and thus interstate commerce. Ibid.
We rejected these "costs of crime" and "national productivity" arguments because they would permit Congress 613*613 to "regulate not only all violent crime, but all activities that might lead to violent crime, regardless of how tenuously they relate to interstate commerce." Id., at 564. We noted that, under this but-for reasoning:
"Congress could regulate any activity that it found was related to the economic productivity of individual citizens: family law (including marriage, divorce, and child custody), for example. Under the[se] theories . . . , it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign. Thus, if we were to accept the Government's arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate." Ibid. "
 Since the U.S. Supreme Court found no connection between giving rape victims federal civil remedies for state crimes (note that in that case there was no state criminal conviction, or even state criminal charges filed, or state lawsuit filed by the supposed victim) and regulation of interstate commerce by the federal government, the portion of Violence Against Women Act was struck as unconstitutional.

And here comes another kicker.

There was NO analysis as to whether the U.S. Congress exceeded its powers under the Interstate Commerce in enacting the Food, Drug and Cosmetics Act of 1938, or the National Child Vaccine Injury Act of 1886.

None whatsoever.

Even though it was analyzing a non-economic activity of immunizing children, a medical activity squarely falling within the care for general welfare of the population, reserved to the states and directly to the people by the 10th Amendment.

In fact, the U.S. Supreme Court has actually stated that "in the 1970’s and 1980’s vaccines became, one might say, victims of their own success. They had been so effective in preventing infectious diseases that the public became much less alarmed at the threat of those diseases, and much more concerned with the risk of injury from the vaccines themselves."

So, the case was about the public perception of vaccines as unsafe and risky - causing permanent disabilities and deaths - to children.

And the response of the federal government to that public concern was to block access of victims to state courts to obtain full discovery of what went wrong and full jury adjudication of victims' claims was - to block access of the victims to state courts.

What does it have to do with commerce?

There is not one word in the vaccine case of 2011 about the statute being unconstitutional and in excess of the U.S. Congress commerce power.


Likely, because too many careers and too much money was riding on this case, and because the pharma lobby appeared to be more powerful than the gun lobby and the womens' rights lobby.

And that is the only reason why in this "rule of law" nation child victims of unsafe vaccines got barred from access to state court remedies, remedies that are allowed to everybody else for personal injuries from OTC or prescription drugs or from medical devices other than vaccines - which is, to begin with, a major access-to-court, due process and equal protection of laws problem.

And that is despite the fact that barring victims of personal injuries that occurred due to a non-commercial transaction within the state (as in - vaccination of a child) from receiving a remedy for that injury in a state court has absolutely nothing to do with regulation of "interstate commerce", which, as Article I Section 8 Clause 3 provides, has to do ONLY and exclusively with regulation of commerce between GOVERNMENTS and not between private individuals, or between private individuals and private companies/corporations.

For continuation of analysis of that extraordinary case, with its extraordinary background and history and its extraordinary effect upon the rights of children and adults for access to court to redress injuries from unsafe vaccines (including permanent disability and death), stay tuned for my next article.


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