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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: inquest
"In other words, to make sure that all regulations that it chooses to make will be effective?"

Allow me to rephrase. "Congress shall have the power to regulate commerce among the several states, and shall have the power to make all laws necessary and proper to execute such regulation."

301 posted on 11/06/2005 9:40:58 AM PST by robertpaulsen
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To: inquest
Have you read the Virginia Resolution (Madison)as well as the Kentucky Resolution (Jefferson)? Also, during the "Era of Good Feeling" James Madison vetoed a bill pertaining to building roads, canals, and bridges. This was not one of the enumerated powers according to the Strict interpretation of the Constitution.
In other words, The Federal govt. is superseding what the Intent of the Framers actually was when the Constitution was written but Hamilton and the Federalist along with Washington believed in the Elastic Clause....that pesky little idea of what is deemed "Necessary and Proper." What say ye?
302 posted on 11/06/2005 9:42:56 AM PST by Paige ("Guard against the impostures of pretended patriotism." --George Washington)
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To: robertpaulsen
Did the U.S. Supreme Court categorize them this way

Duh.

You're saying that if Congress is constitutionally regulating interstate airline traffic, each state should be allowed to regulate purely intrastate airline traffic -- setting air traffic routes, radio frequencies, landing patterns, etc., and that Congress has no authority over this activity?

If people are doing things that physically obstruct the interstate movement of traffic, then they're engaging in (unauthorized) regulation of said traffic, and conflicting with Congress's authority. This is consistent with Madison's own reasoning in Federalist 42, where he identifies the federal power as being necessary to remove the power to regulate interstate commerce away from others (mostly states, who at the time of his writing, were the only entities in any kind of position to obstruct it effectively).

Using your own grown wheat, on the other hand, obstructs no commerce. The federal government can engage in all the economic technobabble it wants about maintaining a proper price base or whatever, but all it really comes down to is the claim that its power to regulate interstate commerce involves the power to force people to engage in it. A child can see that those are two very different things.

303 posted on 11/06/2005 9:43:13 AM PST by inquest (FTAA delenda est)
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To: Wolfhound777

The Executive does not have to enforce the rulings of the Supreme Court if they believe the rulings are Unconstitutional. Therefore, every branch is at fault.


304 posted on 11/06/2005 9:44:10 AM PST by Paige ("Guard against the impostures of pretended patriotism." --George Washington)
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To: Reagan Man
After all, there was no visible drug problem in American society in the late 1700`s. The circumstances were drastically different in the second half of the 20th century

ARTICLE V

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

305 posted on 11/06/2005 9:46:11 AM PST by inquest (FTAA delenda est)
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To: Reagan Man
Fine. That's your opinion. I still think it was a badly worded question. After all, there was no visible drug problem in American society in the late 1700`s. The circumstances were drastically different in the second half of the 20th century, leading to the creation of a standard national drug strategy with the CSA of 1970.

That argument lies at the heart of the "living document" philosopy of Constitutional interpretation - that we should interpret not based on the intent of the original transfer of power, but on what we want it for right now.

306 posted on 11/06/2005 9:47:15 AM PST by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
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To: Reagan Man
Linking drugs with firearms should have immediately raised a red flag for most folks,

Linking guns and drugs under the commerce clause has already been done by Bill Lockyer, attorney general of California. He wants to use the commerce clause for gun control. This will be working its way through the courts in the near future.

The poll is right on and reflects a real world concern. Those of you who celebrated the Raich decision to slap down those pot smokin hippies in California are going to lose your 2nd amendment rights because of that decision.

Don't think it can't happen. The court decided the 4th and 5th could be "suspended" in the drunk driving roadblock case. Government can "suspend" rights for public safety. Lockyer will use public safety to win a 2nd amendment suspension under the commerce clause.
.
307 posted on 11/06/2005 9:47:52 AM PST by mugs99
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To: robertpaulsen
In other words, is the sole intent of the second amendment "arms for our own defence" or can arms be used for other purposes?

Of course they can. The people don't need permission from the Constitution to do anything. Its job is to give powers to the government and define the limits of those powers. It doesn't give anything to the people what they don't already have.

308 posted on 11/06/2005 9:49:17 AM PST by inquest (FTAA delenda est)
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To: Reagan Man; tacticalogic
there was no visible [...] problem in American society in the late 1700`s. The circumstances were drastically different in the second half of the 20th century

Precisely the same argument could be (and, I believe, has been) made for restrictions on the right to bear arms. Do you support that as well?

309 posted on 11/06/2005 9:50:01 AM PST by Know your rights (The modern enlightened liberal doesn't care what you believe as long as you don't really believe it.)
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To: robertpaulsen
Allow me to rephrase. "Congress shall have the power to regulate commerce among the several states, and shall have the power to make all laws necessary and proper to execute such regulation."

That's more like it. Much more accurate than talking about "effectiveness".

310 posted on 11/06/2005 9:51:24 AM PST by inquest (FTAA delenda est)
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To: Paige
In other words, The Federal govt. is superseding what the Intent of the Framers actually was when the Constitution was written but Hamilton and the Federalist along with Washington believed in the Elastic Clause....that pesky little idea of what is deemed "Necessary and Proper." What say ye?

I say the "Necessary and Proper" clause is only there in support of the enumerated powers of Congress. Before you can start talking about what is necessary and proper, you have to establish that the objective is within the intended pervue of one of those powers.

311 posted on 11/06/2005 9:54:43 AM PST by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
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Comment #312 Removed by Moderator

To: Ken H; Rockingham
We've been here before KenH.

Throughout US history the commerce clause has been abused many times. The 2nd amendment protects the rights of Americans to legally own firearms. ... the right of the people to keep and bear arms, shall not be infringed. I don't agree that drugs are in the same catagory as firearms and no one has ever been able to offer up a rationale for such a position.

>>>> Do you think Madison would view intrastate drug prohibition as being in accordance with the original intent of the power of Congress to regulate commerce among the several States?

In my original post at RE:#17, I stated yes. That hasn't changed. Rockingham made the point earlier when he posted:

"The task of genuine originalism is to begin with the Constitution as written and try to understand it in the context of the founding era. But letters and writing of the Framers should not be preferred to the text of the document itself. On that basis, the commerce clause is so broadly written that, as Madison suggests, appeals for limits are properly directed at Congress, not the courts."

In the recent SCOTUS decision of June.6, 2005, AG Gonzales v RAICH, Justice Scalia made the case for the CSA of 1970 being a proper and legal use of the commerce clause by Congress. Snippets.

I agree with the Court's holding that the Controlled Substances Act (CSA) may validly be applied to respondents' cultivation, distribution, and possession of marijuana for personal, medicinal use.

Since Perez v. United States, 402 U. S. 146 (1971), our cases have mechanically recited that the Commerce Clause permits congressional regulation of three categories: (1) the channels of interstate commerce; (2) the instrumentalities of interstate commerce, and persons or things in interstate commerce; and (3) activities that "substantially affect" interstate commerce.

Our cases show that the regulation of intrastate activities may be necessary to and proper for the regulation of interstate commerce in two general circumstances. Most directly, the commerce power permits Congress not only to devise rules for the governance of commerce between States but also to facilitate interstate commerce by eliminating potential obstructions, and to restrict it by eliminating potential stimulants.

313 posted on 11/06/2005 9:56:12 AM PST by Reagan Man (Secure our borders;punish employers who hire illegals;stop all welfare to illegals)
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To: Know your rights
>>>>>Now that you've seemingly abandoned your silly evasion about "Then you take a legal run at it and we'll see how far you get," perhaps we can have the real discussion you claim to want.

That's your opinion and your words. I haven't abandoned anything. As for further discussion, it would be an effort in futility and a waste of my time to argue with someone who holds a completely opposite position then I do. I still contend, at the very least you have libertarian leanings on the issue of drugs and the commerce clause. An endless debate on this issue will not satisfy either one of us.

314 posted on 11/06/2005 10:05:49 AM PST by Reagan Man (Secure our borders;punish employers who hire illegals;stop all welfare to illegals)
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To: tacticalogic
>>>>That argument lies at the heart of the "living document" philosopy of Constitutional interpretation ...

The amendment process makes our Constitution a living document, but only to that extent. As George Washington said, the Constitution is a "guide" for each generation of Americans to govern themselves. As the world changes, so does the challenges facing America and her people. Focusing on the growing problems our society has had with illicit drugs in the last 50 years, I believe the Congress and the SCOTUS have acted in a responsible manner consistent with the best interests and welfare of the American people. Again, specific to this case only. Trying to override the Constitutional RKBA, or to find a right of privacy that allows pregnant women to kill their unborn babies in excess of 45 million dead since 1973, I draw the line.

315 posted on 11/06/2005 10:22:08 AM PST by Reagan Man (Secure our borders;punish employers who hire illegals;stop all welfare to illegals)
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To: tacticalogic

Before I say anything else....do you think the Supreme Court has a Constitutional Right to legislate from the bench?


316 posted on 11/06/2005 10:29:55 AM PST by Paige ("Guard against the impostures of pretended patriotism." --George Washington)
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To: Reagan Man
Focusing on the growing problems our society has had with illicit drugs in the last 50 years, I believe the Congress and the SCOTUS have acted in a responsible manner consistent with the best interests and welfare of the American people. Again, specific to this case only.

All well and good, but the question is not specific to this case only, just as the expansion of federal power under the New Deal commerce clause is not. The question is posed as separate from whether you agree with the objective of the laws. If you cannot separate the two and consider each on it's own, then the end is justifying the means, and the constitutional issues are irrelevant.

317 posted on 11/06/2005 10:39:33 AM PST by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
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To: Reagan Man
SCALIA: "And the category of "activities that substantially affect interstate commerce," Lopez, supra, at 559, is incomplete because the authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws governing intrastate activities that substantially affect interstate commerce."

MADISON (re the power to regulate commerce among the several States): "...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."

Madison: "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite."

JOHN MARSHALL (Gibbons v. Ogden): "Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c., are component parts of this mass."

"No direct general power over these objects is granted to Congress; and, consequently, they remain subject to State legislation."

ALITO (dissenting): "If there is any sort of interstate market for a commodity--and I think that it is safe to assume that there is some sort of interstate market for practically everything--then the purely intrastate possession of that item will have an effect on that market, and outlawing private possession of the item will presumably have a substantial effect."

"Consequently, the majority's theory leads to the conclusion that Congress may ban the purely intrastate possession of just about anything."

-- http://www.cs.cmu.edu/afs/cs.cmu.edu/user/wbardwel/public/nfalist/us_v_rybar.txt

Scalia's position is contrary to Madison, Marshall, and Alito.

318 posted on 11/06/2005 10:40:34 AM PST by Ken H
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To: Paige

What do you mean by "legislate from the bench"? Some people consider any judicial review of federal legislation "legislating from the bench". Others reserve that description for attempts to re-write the law, such as the Florida SC tried to do in the last presidential election.


319 posted on 11/06/2005 10:44:33 AM PST by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
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To: Ken H
"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."

The power to regulate commerce with foreign nations was lodged alone with the federal government. The power to regulate commerce among the several states was different -- it was shared between the states and the federal government, although it could be lodged alone in the federal government.

In interstate commerce clause cases where the federal government DOES act, the federal government acts alone -- the state has no say in the matter. And when the federal government DOES act in an interstate commerce case, it acts not in favor of one state or another, but for the the positive purposes of the General Government -- ie., for the good of all.

This was the point of the letter to Cabell. Madison was differentiating the power to regulate commerce with foreign nations with the power to regulate commerce among the several states.

Now, let's examine this phrase using "and not".

"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, and not as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged."

It makes no sense. You'd have to say, "... and not as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could not be lodged.

How can you lodge this power with the federal government and expect them to act in any way except for their positive purposes? Should they favor one state over another? Should they act for negative purposes?

"Rather than" means that it was Madison's intent that the states themselves solve their commerce problems, rather than running to Congress every time they needed a resolution. Though they COULD.

320 posted on 11/06/2005 10:45:17 AM PST by robertpaulsen
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