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.

[LibKill]

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?

Under the original constitution, yes. Whether or not you or I like it.

It is obvious that you skipped the really important part of my post so I will repost it here.

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.

[robertpaulsen]

"OK, just as long as you're not having any misunderstandings about the original intent."

Does original intent mean sole intent? In other words, a clause cannot be used for anything other that for what it was originally intended?

It that what you're saying here? Is that why you keep bringing up this "original intent" crap, over and over and over again?

I think the original intent of the 2nd amendment was to allow individuals to own muskets. Don't you? Is that how we should look at the 2nd amendment today?

Geez Louise. Grow up and stop trying to make debating points. I ain't givin' none out today.

[inquest]

Telecommunications and airlines involve things, the mere regular use of which will interfere with the use of similar things by people traveling or communicating across the country. The argument can be made that Congress can get involved in ground transportation to the extent necessary to remove obstructions thereto. The other things you mention do not fall into those two categories, and therefore are definitely not reachable by Congress through the commerce clause when they're all manufactured and sold within a particular state.

[inquest]

Does original intent mean sole intent? In other words, a clause cannot be used for anything other that for what it was originally intended?

Fascinating question, I'm sure. But we can't begin to address it until you stop misrepresenting original intent.

I think the original intent of the 2nd amendment was to allow individuals to own muskets. Don't you?

Nope. Its original intent was for the federal government not to have a monopoly on the ability to use force internally.

Grow up and stop trying to make debating points.

Paulsen, you're in absolutely no position to be telling anyone here to grow up.

[supercat]

An ingenious idea, but not plausible due to the strong reading given to the full faith and credit clause as leaving little room for Congressional tinkering. Also, equal protection arguments would be raised against special full faith and credit legal rules as to guns. These considerations also likely doom the federal Defense Of Marriage Act.

It is less of a stretch to declare that the FF&C clause would allow Congress to declare certain types of state court rulings inapplicable to other states, or alternatively to provide a means of seeking federal relief from them, than it is to declare that I.8 allows all the stuff it's used for.

For example, suppose that the government of a free state were to pass a statute providing that any person whose relatives were held as slaves could sue for $1,000,000 in 'just because' damages from whoever held those relatives. Such a statute might be valid under that state's constitution, but should rulings passed under it be enforceable against slave holders in other states?

I think part of the intention of giving Congress authority there was to ensure that rogue states couldn't use their courts as a weapon against other states. To be sure, I don't know that the Founding Fathers would have anticipated the types of legal abuse that are so commonplace today, but the notion of legal abuse probably wouldn't have been completely foreign to them.

[robertpaulsen]

"Under the original constitution, yes. Whether or not you or I like it."

Under the original constitution, no. And it's not a matter of liking it.

If Congress is currently regulating in these areas (and they are), then independent state regulations would interfere with constitutional interstate regulations -- maybe destructively, in the case of airlines.

Congress is certainly free to use the Necessary and Proper Clause to eliminate conflicting regulations for the health and safety of the country.

[supercat]

With the goal of that being ... what? That one or two states, or some group of individuals within one state, could undermine and subvert constitutional Congressional interstate regulatory efforts?

If Congress declares that the only way that it can effectively maintain the desired patterns of interstate commerce is to forbid any person from reproducing more than once, should such a restriction be within Congress' authority? Why or why not?

[Ken H]

tacticalogic: "Rather than" means "and not".

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

Various biblical translations of Proverbs 8:10 contradict robertpaulsen:

[web] Receive my instruction rather than silver;

[kjv] Receive my instruction, and not silver;

[web] Receive my instruction rather than silver;

[bbe] Take my teaching, and not silver;

[robertpaulsen]

"But who decides what is "necessary"?"

Congress, in designing and passing the statute. The President, when he signs it. The USSC, if and when the law is challenged.

Who would you prefer? "The People"?

[LibKill]

Fair enough. We have a difference of opinion.

Now, what is your opinion on my statement that the 10th amendment is dead, the feds have the power, and WE need to regulate THEM?

This whole states-rights issue is a waste of time. States rights are dead.

Of course, I have today off and can waste my time in this discussion. :)

[inquest]

This whole states-rights issue is a waste of time.

Defeatism is a waste of time.

[robertpaulsen]

I have no idea what you're talking about. And why are you using biblical translations? Of proverbs?

Was Madison quoting Proverbs? Why should Madison's words be translated biblically?

[LibKill]

Defeatism is a waste of time.

Realism is never a waste of time.

We have been a federal society since Appomattox. It does not matter that I don't like it. It is what it is.

Federal law trumps state law. It does not matter that I don't like it. It is what it is.

It does not even matter that you don't like it.

The only hope for conservatives is to continue to build the lead we have in all levels of government, but most particularly at the federal level.

All else is wishful thinking.

Wishful thinking is a very pleasant waste of time.

[robertpaulsen]

"The argument can be made that Congress can get involved in ground transportation to the extent necessary to remove obstructions thereto"

I can make the argument that Congress can get involved in ground transportation to the extent necessary to place obstructions thereto, and back it up with actual law. As far back as 1884.

"and therefore are definitely not reachable by Congress through the commerce clause when they're all manufactured and sold within a particular state."

Correct. Unless they have a substantial effect on the interstate commerce that Congress is currently (and constitutionally) regulating. Which, oops, they all do.

[robertpaulsen]

"But we can't begin to address it until you stop misrepresenting original intent."

Or until you do.

Does original intent mean sole intent? Answer that question.

[supercat]

Do the facts of the individual cases determine limit of federal jurisdiction under the commerce clause, or should there be objective criteria for what those limits are set before the cases are considered?

IMHO (and if I'm on a federal jury, this is what will apply), the standard should be whether the defendant's conduct is such that either:

1. The defendant knew or expected that its effects would be contrary to Congress' enumerated powers, or
2. The defendant should have known that its effects would be contrary to Congress' enumerated powers, or
3. A reasonable person would judge that, if many people acted 'just like' the defendant is accused to have done, such actions would undermine Congress' enumerated powers.

Suppose someone grows pot for his own personal use and smokes it himself. He does not sell it to anyone.

One cannot reasonably argue that this person's actions, taken as a whole, increase interstate traffic levels of pot. Nor can one argue that his actions, in whole or in part, in any way reduce legal interstate traffic.

One could argue that by smoking the pot rather than selling it, the person reduces the amount of pot that gets exported from his state illegally, or that by growing it he reduces the amount imported, but such reductions, even if real, should hardly be the basis for federal complaint.

The only way one could argue that the person's actions increased interstate traffic would be if one were to take them separately and suggest that by smoking the pot rather than selling it, he increased the amount of pot imported by other people in his state (since he wasn't filling their demand); or that by growing the pot rather than purchasing it, he was increasing the amount exported by other people in his state (since they weren't selling it to him, they sold out-of-state). Both of these arguments, however, in essence say that this person is increasing interstate commerce by refusing to illegally take part in it.

I think it would be fair to say that someone who buys pot without regard for where it came from, or who sells larger-than-immediate-personal-use quantities without regard for where it's going, should expect that the pot he buys or sells is likely to be involved in interstate commerce. On the other hand, if he buys from someone who claims to have grown it himself, or if he sells to someone with a doctor's script who claims to want it for personal in-state use, such a person would not have reason to believe that pot would be involved in interstate commerce.

BTW, I see this sort of thing as being a "safety valve" for federal overreaching. Normally, it would not be worthwhile for someone to go through the effort of ensuring that business was only done intra-state, but if federal regulation of a business or commodity becomes too severe, people within a state should be allowed to form an island beyond that overreaching federal power.

[robertpaulsen]

"Its original intent was for the federal government not to have a monopoly on the ability to use force internally."

Is that right?

Many lower courts have ruled that its original intent was for the federal government not to prevent states from forming militias. Do you need cites? How many would you like?

Now, back up your claim, with cites. Or is your definition of original intent what YOU think it should be? Now, that's a novel approach!

[robertpaulsen]

Congress cannot simply "delare" something. Lopez and Morrison demonstrated that.

So cool it with your Chicken Little routine. And your stupid analogies.

[supercat]

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

If someone constructs a railroad which operates entirely within a state and does not connect to the national railroad network, why should Congress have any authority over it?

If a trucking company operates entirely within a state, in a manner which does not interfere with traffic on public rights of way, again I don't see Congress' authority.

As a practical matter, I would think it useful for Congress to have authority over airspace and airwaves even for intra-state flights and transmissions, but I see nothing in the Constitution that gives it such authority. I also see nothing that provides Congress the authority to authorize long-term (over two years) appropriations for the Air Force (while it's possible that even the largest projects are produced without longer-term contracts, I wouldn't expect that to be the case).

Of course, the remedy for such shortcomings can be found in the amendment process.

[robertpaulsen]

"and WE need to regulate THEM?"

Yep. And we have the power every two years to wipe the slate clean and start over with 435 brand new legislators who write those laws.