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FR Poll Thread: Does the Interstate Commerce Clause authorize prohibition of drugs and firearms?
Free Republic ^ | 11-3-05

Posted on 11/03/2005 2:24:08 PM PST by 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.


TOPICS:
KEYWORDS: alito; banglist; commerce; commerceclause; frpoll; herecomesmrleroy; interstate; interstatecommerce; madison; no; scotus; thatmrleroytoyou; wodlist
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To: Rockingham
Indeed, rarely has the US Supreme Court overturned Congressional enactments on commerce clause grounds, and never did so until the 20th Century.

That might have something to do with the fact that Congress never attempted to use the interstate commerce clause as a source of regulatory power over private citizens and corporations until the late 19th century.

161 posted on 11/05/2005 1:27:38 PM PST by inquest (FTAA delenda est)
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To: tacticalogic
"The letter describes the intended purpose of the commerce power. I don't see anything there to support the interpretation of it being of a speculative nature."

Really? Then why the phrase "rather than" instead of "not"?

Seems to me that Madison is indeed speculating, saying that it shouldn't be necessary for Congress to intervene since the states can resolve their differences themselves -- but that Congress can intervene if necessary.

162 posted on 11/05/2005 1:31:39 PM PST by robertpaulsen
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To: Rockingham
"Moreover, in the early decades of the Republic, judicial review was seen as having little role and Madison would not have contemplated it as a check on Congressional exercise of the commerce power"

Marbury v Madison was decided 20 years before this letter was written.

163 posted on 11/05/2005 1:36:41 PM PST by robertpaulsen
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To: inquest
"against the view that the same extent applies to both powers"

Yep. That's what I said. Can't read?

164 posted on 11/05/2005 1:37:56 PM PST by robertpaulsen
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To: robertpaulsen
Good. So then the same extent doesn't apply to both, despite their similar wording. Madison describes them to be of a very different nature.
165 posted on 11/05/2005 1:40:04 PM PST by inquest (FTAA delenda est)
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To: robertpaulsen
Really? Then why the phrase "rather than" instead of "not"?

"Rather than" means "and not". There is no commonly accepted meaning, now or then that makes in inclusive. Can you produce an other use of the phrase "General Goverment" in any other writings that support the assumtion that it means only the legislative branch?

166 posted on 11/05/2005 1:40:13 PM PST by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
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To: inquest
"That might have something to do with the fact that Congress never attempted to use the interstate commerce clause as a source of regulatory power over private citizens and corporations until the late 19th century."

Meaning what? That they weren't allowed?

Maybe they just felt they didn't need to.

167 posted on 11/05/2005 1:41:28 PM PST by robertpaulsen
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To: inquest

Federal gun laws and the WO(s)D are certainly unconstitutional. And the damage they have done to the integrity of the Bill of Rights far outweighs any benefits.


168 posted on 11/05/2005 1:42:50 PM PST by mysterio
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To: robertpaulsen
Meaning what?

Meaning that his point about judicial review isn't anywhere near as relevant as he was making it seem. It helps to follow the context of an exchange a little before jumping in.

169 posted on 11/05/2005 1:45:05 PM PST by inquest (FTAA delenda est)
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To: Rockingham
Indeed, rarely has the US Supreme Court overturned Congressional enactments on commerce clause grounds, and never did so until the 20th Century.

It was not until the 20th Century that Congress took to interpreting the Commerce Clause in a manner inconsistent with what Madison has described as the intended purpose of that power.

170 posted on 11/05/2005 1:45:43 PM PST by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
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To: inquest
No. If I read the original framers right, the second amendment is absolute.

Yes, in that drugs are an item of commerce. They can be regulated as to purity, efficacy, and also to prevent monopolies. SO LONG AS THAT DRUG IS TRADED INTERSTATE. If a drug is manufactured/grown in a state and does not leave that state it is up to the state to regulate it. Not the feds.

The 10th amendment died at Appomattox in 1865. This whole question is merely an intellectual exercise over a moot point.

The feds have the power now. I hope WE can regulate THEM.

ceteris parabus

171 posted on 11/05/2005 1:47:23 PM PST by LibKill (Beer is proof that God loves us and wants us to be happy. - Benjamin Franklin)
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To: inquest
"So then the same extent doesn't apply to both, despite their similar wording"

No, I said that's what Madison claimed. Courts have ruled that there's no difference -- "to regulate" means "to regulate", whether it's with foreign nations or among the several states.

172 posted on 11/05/2005 1:48:31 PM PST by robertpaulsen
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To: elbucko
That is the very issue we are dealing with in California right now. The CA Attorney General argues that the 2nd. Amendment only applies to the feds and not the states. He is asserting "States' Rights". Therefore, since California does not have an RKBA amendment in the state constitution, the state is then free to restrict arms and ammo as it pleases.

California was admitted to the union on condition that it acknowledged the U.S. Constitution as the supreme law of the land. Lockyer must have missed that in his night school pursuit of a legal education. Geoff Metcalfe made a strong effort to get the California constitution amended with 2nd amendment protections. Lockyer used used a few dirty tricks to ensure the issue never made it to the ballot. You can't lose at the polls if you ensure that the issue never comes before the voters.

173 posted on 11/05/2005 1:49:09 PM PST by Myrddin
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To: robertpaulsen
No, I said that's what Madison claimed.

OK, just as long as you're not having any misunderstandings about the original intent. If you want to say that you know more about the Constitution than Madison, that's of course a separate matter.

174 posted on 11/05/2005 1:50:53 PM PST by inquest (FTAA delenda est)
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To: tacticalogic
"Rather than" means "and not"."

Oh baloney. "Rather than" implies a choice. "Not" excludes choice.

"Can you produce an other use of the phrase "General Goverment" in any other writings that support the assumtion that it means only the legislative branch?"

You have me confused with someone else. I never said that "General Government" means only the legislative branch.

175 posted on 11/05/2005 1:52:57 PM PST by robertpaulsen
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To: tacticalogic
"It was not until the 20th Century that Congress took to interpreting the Commerce Clause in a manner inconsistent with what Madison has described as the intended purpose of that power."

Congress was banning interstate commerce as early as 1884.

176 posted on 11/05/2005 1:56:35 PM PST by robertpaulsen
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To: robertpaulsen
Oh baloney. "Rather than" implies a choice. "Not" excludes choice.

Okay. You've got an argument based on the premise that "rather than" doesn't mean "and not". I'm not buying it, but feel free to peddle it somewhere else if you think it'll do any good.

177 posted on 11/05/2005 1:58:12 PM PST by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
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To: robertpaulsen
"Rather than" implies a choice.

It also implies a contrast. "A rather than B" can mean "A, as opposed to B" or "A, as contradistinguished from B".

And in either event, the choice had already been made. Once the Constitution's ratified, there's no further "choosing" to do except through Article V.

178 posted on 11/05/2005 2:01:06 PM PST by inquest (FTAA delenda est)
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To: LibKill
"If a drug is manufactured/grown in a state and does not leave that state it is up to the state to regulate it. Not the feds."

Ah. Would that then also apply to airlines? Radio, TV, cellphone licensing? Railroads? Trucking?

Would that apply to prescription medicine? Machine guns, grenades, and Light Antitank Weapons?

Child porn?

179 posted on 11/05/2005 2:01:47 PM PST by robertpaulsen
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To: Rockingham
Actually, necessity is a credible argument in favor of comprehensive regulation as to drugs. Simply insisting upon the contrary does not answer the argument.

But who decides what is "necessary"? If the mere fact that Congress declares something to be "necessary" for the effective exercise of an enumerated power is deemed to make it so, then I.8 may as well authorize Congress to pass any and all laws it sees fit. Further, the notion that Congress can declare certain things to be facts, and use those "facts" in the enforcement of other laws comes dangerously close to it to pass bills of attainder without having to call them such (indeed, in some cases that already seems to happen).

One of the underlying principles of common law justice, and American justice which is based upon it, is that any person accused of a crime should have the right to call into question any factual element of the offense and have such matters decided by a jury. Allowing Congress to issue factual findings which cannot be challenged in front of a jury seriously undermines this principle.

180 posted on 11/05/2005 2:02:35 PM PST by supercat (Don't fix blame--FIX THE PROBLEM.)
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