Is Marijuana Legalization Illegal?

Townhall.com ^ | March 5, 2014 | Jacob Sullum

[quadrant]

It is long established that Congress has the right to legislate to protect the health of the American people; the Pure Food and Drug Act being but one example of the exercise of this power. Consequently - though you may disagree with the conclusion - Congress is perfectly within its rights to decide the use of pot constitutes a threat to the health of the people in this country. And as the Constitution gives Congress the right to tax - hence the power to destroy - Congress is free to tax pot in such a manner as to destroy the cultivation and distribution of pot. Again, you may disagree with this conclusion, but your views have not been accepted by the courts - at least not yet.

[tacticalogic]

It is long established that Congress has the right to legislate to protect the health of the American people; the Pure Food and Drug Act being but one example of the exercise of this power.

Can you point out the enumeration of this power in the Constitution?

[quadrant]

Get serious. Congress - controlled by both parties - has been doing this for almost 100 years. No Supreme Court decision that I'm aware of has ever stopped them. Were all these justices - some very liberal, some very conservative wrong? Perhaps you know of one but I don't. You're trying to revive a dead horse. Congress had the power to regulate or prohibit pot. Get used to it. Go onto to something else.

[tacticalogic]

Get serious.

I am serious. If there is no discernible enumerated power, then the only limit to their power is what they can take. That's the stuff of war.

Which side can I expect to find you on?

[morphing libertarian]

you have the question reversed

[quadrant]

I plan to be on the winning side. In 1861 my family chose what would be the losing side; we don't plan to make that mistake again.
But in any event, Congress has the power to tax, and the power to tax is the power to destroy.

[tacticalogic]

I plan to be on the winning side. In 1861 my family chose what would be the losing side; we don't plan to make that mistake again.

Mine picked the winning side in 1775.

[quadrant]

So did mine.

[quadrant]

So did mine. But being on the side of pot legalization is a sure loser.

[Ken H]

Congress uses its power under the Wickard Commerce Clause to impose intrastate marijuana prohibition.

Since you support the current policy, you are also supporting the same expansive Commerce Clause that allows fedgov to control education, the environment and welfare - to name just a few.

Agreed?

[tacticalogic]

So did mine. But being on the side of pot legalization is a sure loser.

The sticking point isn't the legalization, it's subverting the original intent of the Constitution to let the federal government do it without an amendment to grant them the power.

It's not worth the collateral damage.

[quadrant]

Walk through the Tenderloin in SF, CA and look at the damage done by heavy pot use; and then tell me the attempt by the federal govt to prohibit out use isn't worth the collateral damage.

[tacticalogic]

Look at all the damage every federal agency created and every piece of legislation passed under authority claimed by virtue of “finding a substantial effect on interstate commerce”, and tell me San Francisco and California’s failure in the Tenderloin district justifies doing that to all of us.

[quadrant]

Just two questions: perhaps some judge has, but I haven't read of one; doesn't it seem likely that some judge somewhere at some time would have ruled that the federal government lacked the authority to regulate or prohibit drug sales?
Of all the crazy judges on the bench of the Loony Ninth Circuit, has any of them ruled against federal regulation?

[tacticalogic]

What purpose will be served by the answer to those questions?

I care about upholding and working within the original intent of the Constitution.

I believe the Constitution is an "enduring document", with the meanings of it's words fixed as they were understood and intended at the time it was written and ratified.

I don't believe it was intended or should be considered a "living document", subject to revision by judicial interpretation.

The answers to those questions won't change that one iota.

[quadrant]

I care about all of those values too; but I see nothing in them that precludes federal prohibition of pot.

[tacticalogic]

I care about all of those values too; but I see nothing in them that precludes federal prohibition of pot.

If you care about them, you should be able to point out the enumerated power in the Constitution that authorizes them to do it, and be able to supply references from the Founders and their contemporaries that supports it as being within their understanding of that power and the intended scope of it's use.

I can supply historical references about the original understanding and intent of the Commerce power, but none of it is consistent with using it to prohibit pot.

[quadrant]

I don't want to get into a constitutional argument about this provision or that or the interpretation of amendments; but my simplistic reasoning leaves me with the impression that the Preamble gives ample authority to Congress.

[tacticalogic]

but my simplistic reasoning leaves me with the impression that the Preamble gives ample authority to Congress.

From Joseph Story's Commentaries on the Constitution":

"§ 462. And, here, we must guard ourselves against an error, which is too often allowed to creep into the discussions upon this subject. The preamble never can be resorted to, to enlarge the powers confided to the general government, or any of its departments. It cannot confer any power per se; it can never amount, by implication, to an enlargement of any power expressly given. It can never be the legitimate source of any implied power, when otherwise withdrawn from the constitution. Its true office is to expound the nature, and extent, and application of the powers actually conferred by the constitution, and not substantively to create them. . . ."

More here:

http://press-pubs.uchicago.edu/founders/documents/preambles21.html

[quadrant]

I'm not an attorney and I don't want to get into arguments about specific provisions. But I know that many ardent defenders of the Constitution have supported laws regulating drug use. Their support is sufficient for me.