FR Poll Thread: Does the Interstate Commerce Clause authorize prohibition of drugs and firearms?

Free Republic ^ | 11-3-05

[inquest]

There's a new poll up on the side. Do you think the interstate commerce clause of the Constitution authorizes federal laws against narcotics and firearms? Now lest everyone forget, this isn't asking whether you personally agree with such laws. It's about whether your honest reading of the Constitution can justify them.

While you're thinking it over, it might help to reflect on what James Madison had to say about federal power over interstate commerce:

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

I'll be looking forward to your comments.

[Rockingham]

I grant that in the early era of the Constitution, there would have been great arguments over intrusive federal laws based on the commerce clause, or anything else, for that matter. But the potential for such arguments does not usefully illuminate the commerce clause issue because intrusive federal laws about commerce would have been politically impossible due to the weakness of the federal government and physically impossible and unnecessary due to the rudimentary state of communications in that era.

[Know your rights]

Read the Federalist Papers and Madison's Notes and the work of Forrest MacDonald and other reliable historians.

I've read all three, and I find no support for your claims. Please provide exact quotations.

With your dislike of Supreme Court precedents on the commerce clause, I am surprised to see you suddenly demand such precedents as authoritative.

I don't ... I suggest it as a possible source for at least a shred of evidence, which would be more than I've seen so far.

If I produced one for the point urged, would you concede the argument?

No ... see above.

[Rockingham]

In the parlance of the era, "several states" refers to the states as a whole. What contrary meaning do you attach to the term?

Here's an example -- in a passage with several other points of interest.

The Federalist Papers : No. 45

The Alleged Danger From the Powers of the Union to the State Governments Considered

MADISON

The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States. If the new Constitution be examined with accuracy and candor, it will be found that the change which it proposes consists much less in the addition of NEW POWERS to the Union, than in the invigoration of its ORIGINAL POWERS. The regulation of commerce, it is true, is a new power; but that seems to be an addition which few oppose, and from which no apprehensions are entertained. The powers relating to war and peace, armies and fleets, treaties and finance, with the other more considerable powers, are all vested in the existing Congress by the articles of Confederation. The proposed change does not enlarge these powers; it only substitutes a more effectual mode of administering them.

We are deprived of a better sense of what the Framers would have done with today's commerce clause controversies because they did not see the federal power over commerce as a source of worry and controversy. Fot the better part of a hundred years, that held true.

[Know your rights]

Even assuming it's true that the feds can effectively suppress interstate trade of marijuana only by suppressing intrastate cultivation and possession, it doesn't follow that they have the Constitutional authority to do so. There is no reason to think the Framers were unaware that placing limits on federal power would make permitted actions less effective than they might be in the absence of such limits.

I grant that in the early era of the Constitution, there would have been great arguments over intrusive federal laws based on the commerce clause, or anything else, for that matter. But the potential for such arguments does not usefully illuminate the commerce clause issue because intrusive federal laws about commerce would have been politically impossible due to the weakness of the federal government and physically impossible and unnecessary due to the rudimentary state of communications in that era.

No evidence there for the Framers being unaware that placing limits on federal power would make permitted actions less effective than they might be in the absence of such limits. Have anything responsive to say?

[Know your rights]

In the parlance of the era, "several states" refers to the states as a whole.

Which in no way supports the claim that regulating commerce "among the several states" includes uniform regulation of commerce within states.

[Rockingham]

I heard that!

[Know your rights]

I apologize for not pinging you. I think post #100 had the last word on the subject.

[Know your rights]

Where is this Congressional power enumerated?

Rockingham seems to think the concept of enumerated powers (at least as it applies to regulating commerce) should be surrendered in the face of FDR-and-post SCOTUS rulings to the contrary.

[tacticalogic]

Wickard marked a philosophical shift. FDR demanded and exerted whatever political pressure he could to get the court to abandon original intent and use a "living document" interpretation of the Constitution to avoid having to get a constitutional amendment to authorize the New Deal.

With that came the idea that the federal commerce power was not restricted to the objective of regulating commerce among the several states, but that it encompassed not only interstate but intrastate commerce, not only actual but potential commerce, and that it need not be used with the objective of regulating commerce, but as a tactic to regulate things that were not commerce.

That's a lot of authority to be assumed on the basis of what appears to be nothing more than an exercise in creative semantics.

[Know your rights]

Is that a "no"? ;-)

[inquest]

In the parlance of the era, "several states" refers to the states as a whole.

No, almost the exact opposite. Think of the phrase "jointly and severally liable". Do you know what the "severally" means in that phrase? It means separate from one another. So "commerce among the several states" means among the states considered as seprate entities from each other. In other words, interstate commerce.

In the context of the Constitution, the word "several" has absolutely nothing to do with quantity - either directly, indirectly, or tangentially.

[Know your rights]

Thanks for the educational post!

[Rockingham]

Instead of not being able to "turn back the clock," I would put it as that even God cannot undo the past. See the Book of Job.

Under my projected revival of dual federalism concepts, matters involving local police powers without an appreciable impact on federal commerce ought to be beyond the scope of the federal commerce clause.

In one example, under the commerce clause, the federal government might comprehensively regulate commerce in dynamite but could not in isolation of such a scheme pass a law that prohibited the stockpiling of dynamite within a hundred feet of a school.

Nor could the federal government use the commerce clause to comprehensively regulate education, but it could regulate educational credentialing so as to prevent diploma fraud and prohibit diploma mills or it could make safety requirements for school buses.

Sorry though, for reasons I have already explained above, the suppression of marijuana cultivation and trade -- or attempted suppression if you wish -- requires a comprehensive scheme that penalizes even small scale cultivation or transfers.

[Rockingham]

Take a look at the "necessary and proper" clause. Where the Framers granted authority to the federal government, they meant for that authority to be effective.

[Know your rights]

Take a look at the "necessary and proper" clause. Where the Framers granted authority to the federal government, they meant for that authority to be effective.

If they had said just "necessary" or "necessary OR proper" you might have a point. But they didn't.

[Reagan Man]

I understand, you libertarians are easily amused.

[Rockingham]

We seem to have exhausted the possibilities for useful exchange. We read the source materials so differently as to be in utter opposition.

[Know your rights]

None of that directly addresses my question, "how much of New Deal commerce clause abuse would they undo?" Based on what you've written, the answer appears to be "none." Sorry, but as a conservative I can't accept such thin gruel.

[Know your rights]

Please provide exact quotations.

We read the source materials so differently as to be in utter opposition.

No quotations, I see ... so no opportunity to evaluate our readings. Too bad.