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.

[Ken H]

Well, when St. Pete asks you to explain Proverbs 8:10, I'd stick with the story that silver is not an acceptable choice, rather than tell him you can have silver AND instruction.

You're welcome.

[robertpaulsen]

"A tacit admission that your view and Madison's are not in acccord?"

(I wouldn't be the first person to disagree with Madison, you know.) We're in accord -- as to what he put down in the constitution.

But then Madison is silent on this issue for 50 years. Then he writes this private letter, not to Chief Justice Marshall who's having a field day with the Commerce Clause ... oh no ... to some Cabell guy who, according to inquest, already understood what Madison was trying to explain.

So I'm dismissive of the letter, and you can't understand why I would be?

[robertpaulsen]

When you graduate from high school, you can go to work and start making money or you can go on to college. Are not these two legitimate choices?

If I had asked my parents what I should do, they would have advised me to "take the instruction rather than the silver."

I could have taken the silver -- it's just that silver was not the advised course of action.

Now, on the other hand .....

When you graduate from high school, you can go on to college or you can live a life of crime and steal. Are these two legitimate choices?

If I had asked my parents what I should do, they would have advised me to "take the instruction not the silver."

Taking the silver was not an option.

[robertpaulsen]

"65% of Americans say adults should be allowed to use marijuana ..."

What's with the "adults-only" medicine? You content to let the children die because they can't get their tiny little hands on this Wunder-Drug?

Heartless, you are.

[Ken H]

(I wouldn't be the first person to disagree with Madison, you know.)

Noted.

So I'm dismissive of the letter, and you can't understand why I would be?

I do understand why you are dismissive of the letter.

[inquest]

Then he writes this private letter, not to Chief Justice Marshall who's having a field day with the Commerce Clause

Marshall's views on that clause were not at variance with Madison's. His "field day" involved doing exactly what Madison was talking about: restraining the states from interfering with the commerce of other states, not imposing federal restrictions on the actions of private citizens.

[Ken H]

In both cases, "rather than" means you had to make a choice. You can't be a thief AND go to college to have a career.

Unless you go to work for the Federal bureaucracy.

[robertpaulsen]

Not true. Marshall's opinion in ... oops. Can't say that.

It's right there in the constitution. Plain as day, yet you refuse to see it.

[robertpaulsen]

"In both cases, "rather than" means you had to make a choice."

Am I losing my mind? In both cases? HEY, KenH, WAKE UP!!!!

The first scenario used "rather than", implying a legitimate choice, one more advisable than the other.

The second scenario used "not", implying no choice whatsoever.

[inquest]

Marshall's opinion in ... oops. Can't say that.

Since I freely spoke his name, you'd get a pass this time. So go ahead, you can say it. Assuming there's anything there.

[robertpaulsen]

"you'd get a pass this time."

Oh, but I am not worthy.

I'll pass.

[inquest]

You got that right. But I figured I'd be charitable.

[Rockingham]

You miss the point of the original post. Anslinger declared that because the cultivation of and local trade in marijuana was beyond the federal commerce clause, parents and responsible adults had to campaign for anti-marijuana laws in every state and community -- thus Reefer Madness. Of course, both commerce clause law and marijuana opponents long ago moved beyond that, but the advocates seems stuck on it, as if the existence of a ludicrous and stale piece of propaganda somehow answers arguments against marijuana.

The propagandistic scare-the-kids-into-being-good approach never works in the long run if otherwise undermined by the larger society, whether the subject is alcohol, rock music, marijuana or other drugs, VD, or going to prison. Such efforts are more about assuring parents than realistically addressing the problem.

Notably, one study a few years ago found a consistent predictor of drug problems for teens: whether they had more than fifty dollars a week in unencumbered spending money, either as an allowance or from a job. That tells a lot about the inherent weakness of the modern American parental supervision in an age of mass affluence and nonjudgmental, do your own thing cultural standards.

[Rockingham]

Excellent point!

[Ken H]

The first scenario used "rather than", implying a legitimate choice, one more advisable than the other.

So if you tell a kid he has a choice between a new bike and a new X-box, he can choose both?

Am I losing my mind?

Regrettably, yes.

[robertpaulsen]

"So if you tell a kid he has a choice between a new bike and a new X-box, he can choose both?"

Or what's behind Door #1.

[Rockingham]

On some questions, for our modern understanding, the meaning of the words of the Constitution and contemporary documents is obscured by changes in usage. By specialized references, I mean references compiled by historians and constitutional scholars.

The OED is of little help because it is about modern usage, not the usage of the late 18th Century. The language of the founding era of our country is closer to Shakespeare and reading by candlelight than to our era of pop culture and television.

Zounds, would not one of the witte of a codfishe alsoe reckone that to be so?

[inquest]

The OED is of little help because it is about modern usage, not the usage of the late 18th Century.

The unabridged version will help with both, which is exactly why I recommended it.

[Rockingham]

Not really. For our purposes, there are far better references particular to the usage of the Constitution in the era of its drafting and adoption.

I have in mind the muti-volume "The Founders' Constitution," contemporary American legal authorities such as Blackstone and Kent and American dictionaries like the early Websters. I would also like to look at some of the state debates on the ratification, the anti-Federalist Papers, and some good legal treatises and law review articles. I have spend more than a few spare afternoons wandering among such reference works out of sheer love of the subject.

[Zon]

Reefer Madness propaganda was intended to demonize the evil weed as incredibly harmful..

Marijuana is harmful but on the scale of harmful things it's relatively low on the list. It's stupid to smoke it. Even stupider to make a war on an inanimate object and lose. The WOsomeD is a war on people. The war causes more harm to innocent people. We don't see gang violence fighting turf battles over alcohol sales. But we did during alcohol prohibition just as we do today with the WOD.

Taking this to a wider perspective. A conversation I had with a public defender the other day on FP.

And plea bargains are an absolute necessity when you have as many criminal cases filed as you do in this country. 

Not only has the justice system failed, so has the legislative. Legislators, the media and educators tell us that if not for each years new laws people and society would run head long into destruction. Clinton's two terms created 3,000 new laws and regulations each year -- 24,000 new laws.

Question, how is it that the people and society didn't self-destruct prior to the 1990's? Not to mention how it is that people and society are not now self-destructing without the new laws and regulations to come over the next five, ten, fifteen years? Apparently the above mentioned parasitical elites would have us believe that people and society are constantly on the tipping point of self destruction. In reality people and society increasingly prospered, moving away from destruction.

To try the other nintey something percent, we'd need a good forty times as many courtrooms, judges, bailiffs, prosecutors, public defenders, jurors, clerks, court reporters, and on and on and on. We'd go bankrupt.

Virtually every person breaks the law a few times each year. If every lawbreaker, that's virtually all of society, could be apprehended next week, society would run headlong into destruction. Yet with all those lawbreakers running lose society is not in danger of self-destruction. The fact is, the number of violent crimes, crimes where a person initiates force, threat of force or fraud against a person or business is a small fraction of the laws broken. For example, over half the convictions last year were for non-violent drug offenses.

If the legislature did it's constitutional job the justice system already has enough people to handle the violent-criminal load. See my tag line  Nothing personal. Honesty rules. It shines a spotlight on errors.

* * *

"No man has a natural right to commit aggression on the equal rights of another, and this is all from which the laws ought to restrain him." -- Thomas Jefferson

If a person thinks they have been harmed by a person's act of possessing drugs they can take the person to court before an impartial jury and try to convince the jurors that they were harmed and to what extent so that they may gain restitution for their pain and suffering.

Drug warriors and gun-control nazis enlist and advocate government agents to initiate harm and suffering on people that are minding their own business and have harmed no one except perhaps themselves.