The Case Against Medical Marijuana

There are two fairly well-defined positions that have emerged regarding the issue, under consideration by the Supreme Court of the United States of America, of whether the use of marijuana should be legalized for the treatment of certain medical conditions.

The first of these sees marijuana's limited legalization as, in almost all cases, the effort of so-called "stoners" (in contemporary parlance people who pretty much can't live without getting high on marijuana on a daily basis) to find a way to circumvent existing laws that criminalize the use of wacky weed so that they (the stoners), with the consent of their croakers (q.v., below), can stay high all the time with impunity. Those who oppose passing laws which legalize the use of marijuana in "medically" sanctioned cases are seen by those who favor such laws' passage as inflexible obstructionists (scare quotes intended to emphasize the rather cynical view taken by opponents of legalization to the validity of the term "medical").

The term "croaker" is Beat-Generation slang for "doctor." I first encountered it in the writings of William S. Burroughs. Its meaning has since the 1950s been narrowed somewhat to denote a physician who stretches prescription medication guidelines to insure that his or her patients do not have to endure existential pain beyond what contemporary drug mediation can guarantee is acceptable. Under the proposed new laws, I can't imagine marijuana becoming anything — at least in California — but a substance any croaker would readily prescribe for patients with the same sort of substance cravings Burroughs and his cronies flaunted 50 years ago, and for which their croakers provided relief by prescribing opiates when heroin (Burroughs' drug of choice) was in short supply.

On the other side of this issue are those who favor the blanket legalization of medical marijuana. The "medical" umbrella seems to be providing, for people who would ultimately remove any restrictions whatsoever on smoking grass, something of an entry-level platform from which they might leverage across-the-board approval of the use of boo to ameliorate pretty much any condition that might create stress in any human who tends to respond to "stressful" situations by freaking out. All of this is to say that, where the use of marijuana is concerned, the currently-enumerated "medical" conditions are designed to protect a sub-class of American citizens from coping with their lives in traditionally accepted (read "pharmacologically unmediated") ways.

In fact, if such legislation is allowed by the Supreme Court to stand, it will become not much more than an excuse for a bunch of pot-smokers of every ilk to do what abusers of the Americans With Disabilities Act and their attorneys have done: find ways to twist and subvert and otherwise undermine legislation designed to provide succor to a class of American citizens who are legitimately entitled to government-sanctioned relief from their afflictions so that the legislation in question becomes the instrument, in this case, for a bunch of stoners "getting over" at the expense of American taxpayers, who will minimally be presented with the bill for legal fees in the lawsuits that result from potheads' bringing actions against the state if they are denied, for any reason whatsoever, funded access to the drug which has been the foundation of their lifestyles for, in many cases, the past several decades.

But these arguments beg the real question, which has to focus on the consequences for human brain chemistry and, subsequently, human behavior, of the overuse of psychotropic substances. A psychotropic substance is one which, when ingested and absorbed into the bloodstream, interacts directly with brain chemistry to alter moods and behavior. Psychotropic substances can dramatically change the way we feel and the way we respond to our environments. Psychotropic substances are all potentially addictive, and marijuana is most assuredly a psychotropic substance.

Let me backtrack a bit. Hundreds of substances — from the caffeine in coffee to the nicotine in cigarettes to the alcohol in "adult" beverages — that many of us routinely ingest are psychotropic. Add to these innumerable prescription drugs, from antidepressants to allergy medications to painkillers to stimulants, and you'll begin to get an idea of the range of "acceptable" psychotropic substances tens of millions of Americans consume on a daily basis. And I haven't even mentioned so-called "street" drugs, from ecstasy to cocaine to heroin to marijuana, that millions more Americans use on a more-or-less regular basis.

What no legislation, and no public policy that I'm aware of, has ever taken into account is the biochemistry of drug use. While physicians routinely prescribe drugs that have jarring effects on human brain chemistry, they also routinely fail to acknowledge or to advise their patients that such drugs, although often suppressing symptoms of everything from allergies to depression, at the same time alter brain chemistry in such a way that the humans taking the drugs become more and more dependent on them and that their bodies and psyches are consequently less and less able to mount natural responses to their conditions. In other words, the greater the degree to which you rely on any sort of psychotropic drug to mediate between you and the events of your life, the less "human" you become.

THC, the psychotropic ingredient in marijuana, substitutes for the brain chemical anandamide, which plays a role in such important functions as memory, mood, appetite, and pain perception (just in case you were wondering why stoners can't seem to concentrate, can't recall what's happened from one moment to the next, and need to be constantly resupplied with munchies). But while no one is arguing that marijuana might not play some role in mitigating certain types of pain, becoming an habitual marijuana user has other significantly damaging side effects, including lethargy, loss of motivation, inability to focus, the aforementioned memory lapses, and, after prolonged use, difficulty in experiencing pleasure, among numerous others.

Legislation which broadens the scope of acceptability of our use of psychotropic substances — no matter whether the substance be marijuana or Paxil, cocaine or Ritalin (Ritalin, for the record, interacts to disrupt brain chemistry in exactly the same way cocaine does) — is legislation that expands institutional authority over what we accept as "human." This is to say that legislation which expands the acceptability and the legality of using psychotropic substances for the purpose of helping us cope with the physical or psychological pain of existence is legislation which contributes, ultimately, to the disaffirmation of our humanity, of our ability to experience fully what it means to be human.

This is not to say that I don't favor, for instance, the use of painkilling prescription drugs to ease the suffering of those who are in the final stages of a terminal illness. The use of painkillers for the purpose of making bearable another human's last days on earth is to me not only an acceptable but even an honorable application of modern pharmacology. Nor do I object to the short-term use of prescription psychotropic substances in times of crisis, such as enabling someone to bear otherwise debilitating pain while recovering from physical or emotional trauma.

Rather, at issue here is the legitimization of what has been regarded as a "street" drug for the purpose of ameliorating the suffering associated (at least anecdotally) with certain medical conditions. (Indeed, the evidence that marijuana is effective in reducing physical pain among its users is totally anecdotal to my knowledge.) Further, the issue involves adding yet one more psychotropic substance to the list of such substances that can be legally used to reduce our humanness, our ability to build the natural strength to respond to the events and conditions of our lives without biochemical mediation. It is, finally, for this reason that I would argue against the legalization of marijuana use for medical purposes.

Writer Greg Lewis is co-author, with Dr. Charles Gant, of the Warner Books hardcover "End Your Addiction Now." Dr. Lewis is a frequent contributor of political and cultural commentaries to several websites. His next book, "The Politics of Anger: How Marxism's Heirs Are Redefining Liberalism in America Today," is due out in late Spring. Read more of his work at http://www.GregLewis.org

"And aside from the fact that you're reading into his statements things that just aren't there,"

As a way to explain them, nothing more. In contrast to your "explanation":

You mean this explanation?:

The fact that he called it a "provision" instead of a "power" doesn't prove anything, except perhaps that Madison knew how to write coherently; the phrase "a power against injustice" isn't really good diction, because a "power" can't by itself be against anything until it's actually used, and used effectively. The clause "provided" against injustice by giving Congress the power to do something about it. The last line of the letter, "...in which alone the remedial power could be lodged," shows that the provision did indeed provide a power.

After all, if you're going to contrast my explanations with yours, it's only honest that you contrast explanations regarding the same point.

The line you quoted wasn't an explanation, just an opinion, countering your own stated opinion (which you started with "I am equating..." without stating how you came to that conclusion). If you disagree with my opinions, you're always at liberty to say so and to say why if you so choose. But this business of quoting out of context shows that you're getting on the defensive.

"For a like reason, I made no reference to the 'power to regulate commerce among the several States.'"

In other words, he's saying that the observations he made in the first letter were not in regard to this power.

"I always foresaw that difficulties might be started in relation to that power which could not be fully explained without recurring to views of it, which, however just, might give birth to specious though unsound objections."

In other words, it's difficult to get into a discussion about this subject without it degenerating into a mess of conflicting and specious opinions from people who don't understand the context surrounding the granting of that power. Quite a correct observation, I do say.

"Being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it."

Pretty self-explanatory. I don't think there's much disagreement between us on this sentence.

"Yet..."

Very important word here. Probably the most important word in the entire letter. It means that what "would" be the case in the preceding sentence is in fact not the case. In other words, the same extent that belongs to the power over foreign commerce does not belong to the power over interstate commerce.

"...it is very certain that it grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged."

This is the part that goes into detail about the difference in extent between the power over foreign commerce and the power over interstate commerce. It could only have meaning in the context of the letter if Madison was assuming that the power is what it was intended to be (because otherwise it would have provided no explanation about the difference in the extent of the two powers), that "rather than" means (pick one, they all mean pretty much the same thing) "and not", "instead of", "in contrast to", etc., and that "positive purposes of the general government" means what I described at the bottom of #733.

And how that letter either supports or conflicts with the actual words of the Commerce Clause.

It doesn't conflict with the actual words. The power to regulate commerce among the several states naturally involves the power to negate state laws that attempt to regulate trade between state and state. Strictly speaking, the words could possibly be understood to involve the power to impose restrictions, but there'd be no constitutional way to enforce such restrictions. There are only two ways it could be done effectively:

One is to do what the feds do now, which is to regulate the internal affairs of the states - and that more than anything else conflicts with the words of the commerce clause, not to mention would have been revolted at by anyone living at the time the Constitution was being considered for ratification, if in fact he knew or even suspected that such a thing was implied by that power. Not even Alexander Hamilton claimed such an outrageously expansive power for the federal government.

The other way would be to set up internal customs points along the borders between states, to make sure no one's trafficking in forbidden material. And that would conflict with the "privileges and immunities" clause of Article IV.2. Among the privileges and immunities that were understood to pertain to all the citizens of the states was free ingress and egress to and from every other state.

Thanks for the detailed reply.

""I always foresaw that difficulties might be started in relation to that power which could not be fully explained ..."

If the differences between the powers were as you described, where's the difficulty? If the power to regulate commerce among the several states is to be limited to removing or preventing injustices, bada bing, there's your Commerce Clause. That ain't rocket science.

Madison was certainly able to explain the power to regulate commerce with foreign nations. The power to regulate commerce among the several states must be much more complex for him to make this statement.

"Being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it."

That could mean simply that Congress was not treat individual states the way they treated individual countries. Or that Congress was not to tax and tariff the commerce of individual states to fill the federal treasury (National Sales Tax?). Or that Congress was not supposed to use the power to encourage manufacturing.

But there is another possibility. And that is that Madison was saying that the power to regulate commerce among the several states would not be used to the same extent (as often, as much as) as the power to regulate commerce with foreign nations.

For example, Congress regulates commerce with foreign nations only by passing laws. Congress can (and still does) regulate commerce among the several states in the same manner -- passing laws. An injustice exists, a law is written. Another injustice, another law. On and on.

But, Madison didn't foresee Congress passing these kinds of laws to the same extent as foreign commerce laws. Why not? Because he envisioned a commerce clause whereby the states themselves would resolve their own commerce problems without Congress passing laws. All injustices could be removed without Congress passing one single law. Totally different than the mechanism to regulate commerce with foreign nations.

That then explains his phrase about how it was his intent that the clause be used this way, as a provision against injustice to be used among (by) the states themselves, rather than for the positive purposes of the General Government (Congress writing laws).

When looking at the Commerce Clause this way, now you can see where Madison would say, "I always foresaw that difficulties might be started in relation to that power ..."

And we cannot ignore the fact that the federal courts have recognized this provision, calling it the Dormant (or Negative) Commerce Clause. This provision does exist, and your interpretation of Madison's letter does not account for it.

In your post #733, you're distinguishing between a "positive" law and a "negative" law. Madison is referring to laws that are passed for a positive purpose. It could be a negative law (say, banning the interstate commerce of adulterated eggs) for a positive purpose (public health). The two are different.

In HIPOLITE EGG CO. v. U S, 220 U.S. 45 (1911), the shipment of adulterated eggs was prohibited by Congress under the Commerce Clause, with no mention of internal customs points along the borders between states.

But, Madison didn't foresee Congress passing these kinds of laws to the same extent as foreign commerce laws. Why not? Because he envisioned a commerce clause whereby the states themselves would resolve their own commerce problems without Congress passing laws. All injustices could be removed without Congress passing one single law. Totally different than the mechanism to regulate commerce with foreign nations.

Marshall says the opposite:

Willson v. Blackbird Creek Marsh Co. 2 Pet. 245 1829

Mr. Chief Justice Marshall delivered the opinion of the Court.

But the measure authorized by this act [passed by the State of Delaware] stops a navigable creek, and must be supposed to abridge the rights of those who have been accustomed to use it. But this abridgement, unless it comes in conflict with the Constitution or a law of the United States, is an affair between the government of Delaware and its citizens, of which this Court can take no cognizance.

The counsel for the plaintiffs in error insist that it comes in conflict with the power of the United States "to regulate commerce with foreign nations, and among the several states." If Congress had passed any act which bore upon the case, any act in execution of the power to regulate commerce, the object of which was to control state legislation over those small navigable creeks into which the tide flows, and which abound throughout the lower country of the middle and southern states; we should feel not much difficulty in saying that a state law coming in conflict with such act would be void. But Congress has passed no such act.

The repugnancy of the law of Delaware to the Constitution is placed entirely on its repugnancy to the power to regulate commerce with foreign nations and among the several states; a power which has not been so exercised as to affect the question.

We do not think that the act empowering the Black Bird Creek Marsh Company to place a dam across the creek, can, under all the circumstances of the case, be considered as repugnant to the power to regulate commerce in its dormant state, or as being in conflict with any law passed on the subject.

In Willson, Marshall is saying that the power to RCATSS is dormant unless Congress has exercised that power.

If the differences between the powers were as you described, where's the difficulty?

He explains that in the next sentence. I consider it a foregone conclusion that one sentence flows into the other. So when he follows up with the next by saying, "Being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it," he's showing where the difficulty is: People who are ignorant of the context surrounding the granting of the power would look at the clause and assume that they're just two different eggs from the same hen, when in fact they're not.

"Being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it."

Even if it means all or any of these things, it would at the least establish the point that the actual extent of power belonging to the two clauses is in fact different. How it differs is a different question, but right now I'm not sure you and I agree that it even differs at all according to him.

That doesn't jibe with the words he used. If he's saying that the same extent doesn't belong to both powers, he's not speculating that the powers would be used to different extents; he's saying that the same extents don't belong to them.

The whole point of the first letter was to examine the constitutionality of a certain exercise of power by Congress. That is, he was making comments on the actual quantity and quality of power that the Constitution grants to Congress. The default assumption should be that he's continuing along those lines in the second letter - that he's discussing constitutionality, not speculating on how a power might be used (nor reminiscing about history just for its own sake).

But, Madison didn't foresee Congress passing these kinds of laws to the same extent as foreign commerce laws. Why not? Because he envisioned a commerce clause whereby the states themselves would resolve their own commerce problems without Congress passing laws. All injustices could be removed without Congress passing one single law. Totally different than the mechanism to regulate commerce with foreign nations.

There's nothing in his letter that indicates he had that understanding of the clause. You earlier broke his words down two ways. The first, which you said was incorrect (but is in fact correct) was:

"...and was intended as a negative and preventive provision / against injustice among the States themselves"

and the second was:

"...and was intended as a negative and preventive provision / against injustice / among the States themselves."

In the first version, the phrase "among the states themselves" attaches to the word "injustice", which syntactically makes perfect sense ("injustice among the states themselves"). In the second, that phrase attaches to the word "provsion", in which case it would be syntactically equivalent to "a provision among the states themselves". That makes no sense.

And since there's nothing in the public documents at the time of the founding to suggest that the clause was intended to directly operate without the agency of Congress, and in fact plenty (including Madison's own Federalist #42) to suggest otherwise, then either Madison was not saying in his letter to Cabell that the clause had that intent, or he was lying. And in fact, the last line of the letter - "in which [the general government] alone, however, the remedial power could be lodged" - shows that there is, according to him, a power to be exercised here. The only way of resolving all this is to conclude that the phrase "positive purposes" is fully analogous to the term "positive law", that is, that he's using the word "positive" in the same sense (in other words, postive doesn't necessarily mean "desirable" any more than negative does; it just means the opposite of remedial or preventive). Then everything falls into place quite nicely.

And we cannot ignore the fact that the federal courts have recognized this provision, calling it the Dormant (or Negative) Commerce Clause.

For the purposes of interpreting this letter, I think we can. There's no inherent reason why we should strain his words to comport with Marshall's interpretation of the Constitution.

This provision does exist, and your interpretation of Madison's letter does not account for it.

That's not an argument against my interpretation of his letter. What matters is whether the interpretation comports with the words and syntax that he used. If it does, then that means the letter itself doesn't account for the fact that the courts have come up with this "dormant" clause.

In HIPOLITE EGG CO. v. U S, 220 U.S. 45 (1911), the shipment of adulterated eggs was prohibited by Congress under the Commerce Clause, with no mention of internal customs points along the borders between states.

Perhaps. Though it would still seem that to restrict citizens from entering a state with a product that's perfectly legal in that state would be to infringe on his privileges and immunities as a citizen, by inhibiting his ability to travel freely, subject only to the requirements of the state that he's in (requirements that are the same for everyone, whether a citizen of that state or of any other state). But whether that's specifically true or not, it's just a possible way of explaining how the interstate commerce clause doesn't extend that far. The bottom line is that Madison's letter can not reasonably be interpreted in any other way than to say that it doesn't.

"and the second was: "...and was intended as a negative and preventive provision / against injustice / among the States themselves."

I think you read it wrong (or I wrote it wrong). It should be: "...and was intended as a negative and preventive provision against injustice / among the States themselves."

The power to regulate commerce among the several states was intended to be used as a preventative provision against injustice, and it was to be used among (by) the states themselves.

Provision: a stipulated condition. The stipulated condition: to stop abuses between the states.

In summary: It was Madison's intent that the states themselves were to use this power under one stipulated condition: to stop abuses between states.

"but right now I'm not sure you and I agree that it even differs at all according to him."

We do. And I did give you some examples. In addition to that, I said that "extent" could be interpreted differently.

"to suggest that the clause was intended to directly operate without the agency of Congress,"

I haven't found any, other than this letter. Madison is not saying that Congress cannot write laws to correct injustices. Quite the contrary.

But Madison is saying, in this letter, that it was his intent that the states resolve these issues themselves, rather than waiting for a Congressional statute. And we cannot ignore the fact that the Commerce Clause is used exacly this way today. It's obvious someone, sometime read this into the Commerce Clause. Where did they get it?

"in which [the general government] alone, however, the remedial power could be lodged""

Yes, the remedial power (the power to enact laws to correct state injustices) could be lodged with the General Government. That's fine by Madison. That wasn't his intent, but that's fine.

"The only way of resolving all this is to conclude that the phrase "positive purposes" is fully analogous to the term "positive law",

I have yet to figure out how to debate someone who insists that black is not black -- it's white.

Positive purpose is positive purpose. It's not positive law, positive intent, positive good, positive anything other than positive purpose.

If Madison had said, "a power to be used in a positive manner by the General Government", I'd agree with you. But he doesn't.

He is simply saying that it was his intent that the states resolve these issues themselves, rather than the General Government writing these laws (ie., acting for the positive purpose).

"Though it would still seem that to restrict citizens from entering a state with a product that's perfectly legal in that state would be to infringe on his privileges and immunities as a citizen,"

"The control of Congress over interstate commerce is not to be limited by State laws."
-- United States v. Hill, 248 U.S. 420, 425 (1919).

I think you read it wrong (or I wrote it wrong). It should be: "...and was intended as a negative and preventive provision against injustice / among the States themselves."

Still, in order for it to make sense syntactically, the phrase "among the states themselves" has to attach to something (prepositional phrases are like adjectives or adverbs in that sense). If it doesn't attach to the word "injustice", what does it attach to?

"but right now I'm not sure you and I agree that it even differs at all according to him."

We do. And I did give you some examples. In addition to that, I said that "extent" could be interpreted differently.

The interpretation I've given based on the context is that it refers to the actual constitutional extent of the two powers. Do you agree?

But Madison is saying, in this letter, that it was his intent that the states resolve these issues themselves, rather than waiting for a Congressional statute. And we cannot ignore the fact that the Commerce Clause is used exacly this way today. It's obvious someone, sometime read this into the Commerce Clause. Where did they get it?

Prior to Madison's letter someone interpreted it this way? The only thing that comes close is Gibbons, but therein Marshall made specific reference to (and misread the intent of, btw) an act of Congress granting licenses to shippers engaged in the coasting trade. As Ken H pointed out, there was another Marshall ruling that refused to strike down a state law on the grounds that it allegedly conflicted with the "dormant" commerce clause, because Congress hadn't yet passed a law dealing with that particular subject.

Yes, the remedial power (the power to enact laws to correct state injustices) could be lodged with the General Government. That's fine by Madison. That wasn't his intent, but that's fine.

Wasn't his intent? Look over again what I quoted from Federalist #42. How can you then say that it wasn't his intent?

Positive purpose is positive purpose. It's not positive law, positive intent, positive good, positive anything other than positive purpose.

I didn't say that "positive purpose" = "positive law". I said that the word "positive" has the same meaning in both instances (though the adjective modifies different nouns).

"If it doesn't attach to the word "injustice", what does it attach to?"

Read it this way: "...and was intended to be used as a negative and preventive provision against injustice / among (between) the States themselves."

(As in, "Split the profit among the players") Make sense now?

"The interpretation I've given based on the context is that it refers to the actual constitutional extent of the two powers. Do you agree?"

I agree that it can be interpreted that way, and I've given you examples of that. But even if I were to agree that yours is the only interpretation (which I don't, as I explained), it changes nothing. It just says one power does not have the extent of another. OK.

"Prior to Madison's letter someone interpreted it this way?"

Prior? I'm not sure. In 1829, the same year as Madison's letter, Founding Father and Chief Justice John Marshall mentions the concept of the "dormant state" of the Commerce Clause in Willson v. Blackbird Creek Marsh Co. 2 Pet. 245. There may be earlier cases, I don't know.

But that's not to say that it couldn't have been used that way by the states out of court. After all, it was to be a preventative provision -- it was hoped that the mere existence would deter injustice.

Don't forget. The power to regulate commerce was not taken away from the states. They were not forbidden to erect barriers. There are many instances in the Constitution where Congress was given a power and that same power was then removed from the states in another part of the Constitution. This wasn't one of them.

"As Ken H pointed out ..."

Ken H doesn't have a clue.

His case, Willson v. Blackbird Creek Marsh Co. 2 Pet. 245, 1829, was thrown out because it "is an affair between the government of Delaware and its citizens, of which this Court can take no cognizance."

First, there was no interstate commerce going on. Second, there was no conflict between State law and Federal law. That's very clear in his post.

"Wasn't his intent? Look over again what I quoted from Federalist #42. How can you then say that it wasn't his intent?"

I said it wasn't his intent based on his letter. But let's examine your Federalist #42. In it Madison says:

"In Germany, it is a law of the empire, that the Princes and States shall not lay tolls or customs on bridges, rivers, or passages, without the consent of the Emperor and Diet; though it appears from a quotation in an antecedent paper, that the practice in this as in many other instances in that confederacy, has not followed the law, and has produced there the mischiefs which have been foreseen here."

So Madison is saying in Federalist #42 that even though the empire passed a law prohibiting tolls, it didn't work. But, that has been forseen here in our Constitution, and our Commerce Clause takes care of that (by allowing the states themselves to rectify the injustice).

What do you think, "which have been foreseen here" refers to?

"I said that the word "positive" has the same meaning in both instances"

Fine. So you agree that "positive pupose" could also refer to a "negative law"? In other words, a law which prohibits some behavior enacted for the general good?

Read it this way: "...and was intended to be used as a negative and preventive provision against injustice / among (between) the States themselves."

(As in, "Split the profit among the players") Make sense now?

It would, if that was what Madison actually wrote. Then "among the states themselves" would attach to "used", the way "among the players" attaches to "split". The sentence could then be rearranged as "...and was intended to be used among the states themselves as a negative and preventive provision against injustice," without any alteration in meaning, just as if you were to rearrange the other sentence as, "Split among the players the profits" (would sound a bit awkward to our dialect, but syntactically there's nothing wrong with it).

But since Madison didn't use those words, there's nothing for the prepositional phrase to attach to, except the word "injustice".

Don't forget. The power to regulate commerce was not taken away from the states. They were not forbidden to erect barriers. There are many instances in the Constitution where Congress was given a power and that same power was then removed from the states in another part of the Constitution. This wasn't one of them.

Exactly. That's why this whole "dormant" commerce clause theory has no basis in original intent.

...

What do you think, "which have been foreseen here" refers to?

It refers to those mischiefs in Germany that he was talking about. Trade wars between the principalties led to tensions and law evasion, and ultimately boiled over into shooting wars from time to time. Madison foresaw such results in America unless something was done to stop the states from oppressing each other with these kinds of laws, and that "something" was to give Congress power over their trade with each other.

"Foreseen here" means "here" in the essay that he was writing. In the previous paragraph he wrote:

We may be assured by past experience, that such a practice would be introduced by future contrivances; and both by that and a common knowledge of human affairs, that it would nourish unceasing animosities, and not improbably terminate in serious interruptions of the public tranquility.

And the reason why the law in the Holy Roman Empire didn't "work" is that practically none of the laws of that empire worked, because it couldn't hold itself together at all (that's why he said "in this as in many other instances"). By Madison's time, the HRE pretty much existed in name only. Note that he didn't say the same about Switzerland or the Netherlands. Madison was simply citing the consequences of the law's failure in the HRE as validation of the predictions he made in the previous paragraph. In other words, we better do it, or this is the situation we'll wind up with.

So you agree that "positive pupose" could also refer to a "negative law"? In other words, a law which prohibits some behavior enacted for the general good?

No, I'm saying that "positive" means the opposite of "remedial". "Positive" involves doing something that's not in response to someone else doing something wrong, but rather attempting to bring about a desirable goal (such as promoting manufactures) without anyone necessarily having prompted your action by doing something wrong.

His case, Willson v. Blackbird Creek Marsh Co. 2 Pet. 245, 1829, was thrown out because it "is an affair between the government of Delaware and its citizens, of which this Court can take no cognizance."

First, there was no interstate commerce going on.

You cannot say that. It was a navigable creek, and Marshall had already said in Gibbons that the power to RCATSS was applicable to navigation.

If Congress had passed any act which bore upon the case, any act in execution of the power to regulate commerce,... we should feel not much difficulty in saying that a state law coming in conflict with such act would be void. But Congress has passed no such act.

Second, there was no conflict between State law and Federal law. That's very clear in his post.

That is the point. Congress had the power to RCATSS over blockage of navigable waterways, but had chosen not to exercise it (ie write a Federal law). Therefore, the Clause was dormant and the Court could not apply it.

Marshall said that had Congress passed such an act, then the Court would have "not much difficulty" in voiding a State law which conflicted with such an act.

The "dormant Commerce Clause" as you've explained it, did not come from Marshall.

Don't know what happened in post #758, but I'll try again:

First, there was no interstate commerce going on.

You cannot say that. It was a navigable creek, and Marshall had already said in Gibbons that the power to RCATSS was applicable to navigation.

Second, there was no conflict between State law and Federal law. That's very clear in his post.

Marshall said that had Congress passed such an act, then the Court would have "not much difficulty" in voiding a State law which conflicted with such an act.

The "dormant Commerce Clause" as you've explained it, did not come from Marshall.

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