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 have gone through the medical and policy evidence on marijuana in detail twice over the years. When I did so several months ago, I was surprised to see how strong the evidence against marijuana is now as compared with three decades ago. The case against marijuana legalization is strong on the facts and policy considerations and cannot be credibly rejected on airy generalizations energetically asserted and constantly repeated.

In essence, due to individual differences in biochemistry, some people suffer no harm or little harm from marijuana, while a significant slice of the population is vulnerable and suffers lasting damage from even relatively minor use. Teenagers are especially at risk for major, lifelong damage, as are those with preexisting mental problems or a predisposition to them.

There is no test today or to be available in the near future to allow us to tell in advance what the individual consequences of marijuana use will be. As a policy matter, the costs of wide marijuana use fall widely on the population and cannot be isolated and imposed solely on users. For all the defects and problems of marijuana prohibition, it is better than than legalization.

And it is illogical and unhistorical to take broad pronouncements from Jefferson and others in the early era of the country about individual liberty as support for pro-marijuana policies today. Until the 1960's, the US had traditional, button down mores, with drunkenness regarded as a vice and a character failing subject to legal penalties. A society that routinely put drunks into the stocks, jail, or fined them would not have embraced marijuana smoking or that its should be legal if it became widespread.

Think about it. As silly as "Reefer Madness" now appears, it reflected traditional US values and was produced, promoted, and viewed by a population that on the whole knew more about Thomas Jefferson and the founders and honored them more in the observance than we do today.

Marijuana legalization is not gaining momentum. I do not expect it to prevail. In a decade or two, I expect better testing and treatment technologies and ongoing generational and cultural changes to lead to far less drug use than there is today. My guess is that, assuming a continuity of our country and its way of life, by the middle of this century marijuana smoking will be a trivia question, just as most people today cannot tell you laudanum is.

[Zon]

Smoking marijuana is trivial and that's why I took the discussion to a wider perspective. This relates to virtually every type of harm that can be inflicted on one person from another. If you think you have been harmed by Bob take Bob to court before an impartial jury and do your best to convince the jury that Bob harmed you. You do that in order to get restitution for your pain and suffering that Bob inflicted on you. 

You can take Bob to court regardless of his actions so long as you think his actions caused you harm. His actions may be that he punched you in the face, or he stole your car, or broke into your house, or sat on his porch and drank a beer, or sat on his porch and smoked pot, or called you a nazi pinko fagot.. If Bob harmed you you have every right to take him to court. 

You don't need laws prohibiting each one of those acts. If Bob has it in his mind to do any of those acts he will do them regardless of the laws. As we have seen violent criminals don't abide gun-control laws. People that smoke pot don't abide marijuana prohibition laws. Nor did people abide alcohol prohibition laws. So the real issue is for you to gain restitution via an impartial jury awarding you damages.

With all the people that smoke marijuana society has not run headlong into destruction as parasitical elites proclaimed it would. Society wasn't headed for destruction before marijuana prohibition Yet the drug gangs turf wars and non-violent drug offenders sitting in jail and their broken families is the destruction caused by marijuana prohibition.

[supercat]

In order for your view to work, there must come a point where you can't receive any more instruction, at which time you could then start receiving silver.

What about after Jesus leaves? Does the 'prohibition' against receiving silver remain?

I am not familiar enough with the passage cited to know exactly what possibilities would have been implied or excluded, but if I tell someone they need to do their homework rather than going to a movie, and they manage to get their homework finished quickly enough (but well) that they still have time to go to the movie, would my instruction forbid them from doing so?

[supercat]

If the legislature did it's constitutional job the justice system already has enough people to handle the violent-criminal load.

IMHO, the deciding line for what merits prosecution shouldn't be 'violent vs. non-violent', but rather 'non-state complainant vs. no non-state complainant'.

If someone is openly selling pot on his front lawn, and conducts his business in such fashion as to be bothersome to his neighbors, he should be prosecuted if the neighbors complain. Likewise if someone is intoxicated and disorderly in public and others complain about that. But if someone grows some pot and sells it to a guy with glaucoma and the only 'complainants' are government personnel who don't want people to do that, he should be left alone.

[supercat]

And it is illogical and unhistorical to take broad pronouncements from Jefferson and others in the early era of the country about individual liberty as support for pro-marijuana policies today. Until the 1960's, the US had traditional, button down mores, with drunkenness regarded as a vice and a character failing subject to legal penalties. A society that routinely put drunks into the stocks, jail, or fined them would not have embraced marijuana smoking or that its should be legal if it became widespread.

I agree that the degredation of morality is a major problem in society today. I would differ, however, that this is an argument in favor or prohibition. Indeed, I would argue the opposite: passing and enforcing laws without widespread support for them does far more to undermine society than would the lack of such laws.

Until recently, there wasn't much need for large numbers of law-enforcement personnel because such personnel would receive the support of nearly the entire citizenry. In a sense, nearly everyone was a part-time cop who might sometimes provide assistance at a second's notice (literally: cop sees crook running down the street and signals for anyone who can to stop him). Citizens saw the police as their friends and allies, and were thus generally more than happy to help out when the need arose.

Unfortunately, to an increasing extent, cops are becoming adversarial masters over the citizenry rather than being their allies and servants. There are very few people in this country who are 100.000% law-abiding. There are so many laws that nearly everyone is either guilty of, or has friends who are guilty of, things that they don't think should be crimes. In such an environment, police are no longer allies to be assisted, but rather enemies to be avoided.

Any law which is strongly opposed by even a third of the citizenry is a bad law. Efforts to enforce such a law will turn that third of the citizenry against the government. Unfortunately, many laws today get passed with complete contempt for any opposition. It should be little surprise, then, that the citizenry return that contempt.

[Mojave]

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

Goose, gander. LOL

[tacticalogic]

Writings outside the context of the Constitution, while historical in nature are nothing more then personal opinions and do not constitute any authority, nor are they binding in matters of governance and law.

They do, however constitute the bulk of available historical evidence of original intent. You're going to have a hard time laying claim to an "original intent" view of the Constitution while declaring the bulk of historical evidence as to that intent to be of no consequence.

[gitmo]

Agreed.

[Ken H]

Ockham, William of; A fourteenth-century English philosopher.

He is known for Ockham's razor, his principle that "entities are not to be multiplied beyond necessity"—that is, explanations in philosophy should be kept as simple as possible.   

--The New Dictionary of Cultural Literacy, Third Edition.

_____________________________________

Just take the instruction and forget about the silver!

[Zon]

My argument centers on the individual being the highest authority. If the person is injured by someone they are due restitution. The State is secondary. Protect and defend the victim first then protect the rest of the people from the criminal. The typical chain of events would-be an individual whom is near certain that he has identified the person that harmed him simultaneously presses civil and criminal charges.

If someone is openly selling pot on his front lawn, and conducts his business in such fashion as to be bothersome to his neighbors, he should be prosecuted if the neighbors complain. Likewise if someone is intoxicated and disorderly in public and others complain about that.

A person being disorderly in public hinders public movement and posses a danger.. A person selling pot on his front lawn hinders no ones movement or a danger to persons passing by. I suppose it may bother a neighbor in the same way that nude sun bathing bothers a neighbor or a driveway-mechanic doing business from his house in a residential neighborhood. Those I think are zoning laws violated. A local government jurisdiction, not state or federal.

[supercat]

A person selling pot on his front lawn hinders no ones movement or a danger to persons passing by. I suppose it may bother a neighbor in the same way that nude sun bathing bothers a neighbor or a driveway-mechanic doing business from his house in a residential neighborhood. Those I think are zoning laws violated. A local government jurisdiction, not state or federal.

I didn't mean to imply I thought the guy selling on his lawn should be a federal offense, but rather focus on the principle that laws should be enforced on the basis of complaints. The police's job shouldn't be to try to find places where the law is being violated except to the extent necessary to enforce other laws (e.g. the police may try to track down a fencing ring on the basis that its operations represent a continuation of already reported crimes).

BTW, one of the IMHO good things about the fact that drug laws used to be a 'revenue' issue is that their enforcement was left to "rev'nooers", who may have been despised but whose function could reasonably be seen as unpopular but necessary. Today, however, the drug laws are enforced by agents who cannot reasonably be said to be trying to collect legimate tax revenue (they may be trying to enhance revenue by stealing people's stuff but that's hardly the same thing). That rev'nooers were despised did not rub off on the rest of the police. But when the general police start acting as rev'nooers, that's no longer the case.

[supercat]

Are you saying that he and the other farmers should be allowed to get the federally subsidized price for their wheat (which was 3X world market price) and still be allowed to grow all they wanted, thereby undermining the program?

The way Wickard has been interpreted as precedent, the federal subsidy issue is irrelevant. It may be that for the particular facts at hand, the decision was reasonable, but other courts since have regarded the decision as saying that anyone who grows any commodity which is involved in interstate commerce is subject to federal government control, even if they themselves never put their commodity into the general interstate market.

[Rockingham]

Taking people to court is an effective remedy for a large class of harms, provided that the defendant is available and solvent, your claim is legally sound, you can afford a lawyer, the judge and jury and laws are honest in concept and result, you are willing and able to devote time and effort to pursuing your claim, and the size of your claim in money terms is worth it. Otherwise, to one degree or another, you are screwed.

There is also a large class of problems for which it is better in practical terms to regulate dangerous and destructive conduct before it imposes irreversible harm. Thus speeding is illegal even before there is an accident; the competence of doctors and airline pilots is regulated; you cannot store dynamite in your tool shed in the burbs; and so on. Even the mere disturbance of your enjoyment of your home is defended by regulations against your neighbors putting on a rock concert down the block.

Many of these things are done today by the government as a matter of regulation instead of by private legal action, but they build on common law tort and nuisance actions. Done properly, the net cost to the whole of society is less than a constant torrent of private lawsuits. Besides which, most people would rather have their kid alive than a private cause of action for damages against their speeding neighbor.

There is yet another class of harms in which the conduct at issue is destructive or costly to others in a way that is not fully rational or amenable to redress through damages actions or injunctive relief. What do you do for the kid who wonders why his father tells him to piss off through a cloud of smoke on many evenings? Or is glassy eyed and barely responsive? Or who just acts odd and has trouble working because of damage done long ago by drug use?

What about the doctor who operates with a buzz on? The pilot who flies that way? What about the costs for hospitalization and institutionalization of those who are schizophrenic and psychotic due to marijuana or other drugs? In such cases private causes of action are a poor or useless remedy even if a solvent, deep pocket defendant is within reach.

And to contrive a system of tort law that offered an effective system of remedies -- against drug dealers and suppliers one supposes -- would still require massive help from law enforcement in order to be made effective. Why wouldn't drug dealers just operate in the shadows beyond view of the law -- just like the millions of illegal immigrants who live off the books and work for less than minimum wage?

To be sure, criminalizing marijuana and other drugs has its own costs, policy hazards, and drawbacks, but the settled view of most societies is that the net balance is against legalizing marijuana. The case for legalization cannot be made by asserting that the tort system is the cure for the economic and social harms of marijuana.

Indeed, close acquaintance with the role of marijuana in such harms and the inadequacy of other measures is the most potent reason why the American public has not embraced legalization. Whatever else we differ on, I think that we both agree that decades after "Reefer Madness," Americans know quite a lot about marijuana through experience in one form and another.

[inquest]

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.

Those are definitely good references as well. I don't know if you're aware of this, but the Founders' Constitution can be perused in an indexed online version. One page on that site that might be of interest is Marshall's opinion in Gibbons vs Ogden. About a quarter of the way down, he says, "But it has been urged with great earnestness, that, although the power of Congress to regulate commerce with foreign nations, and among the several States, be co-extensive with the subject itself, and have no other limits than are prescribed in the constitution, yet the States may severally exercise the same power, within their respective jurisdictions." Just another example of how the word was used that should give a good idea of how it was understood to mean.

Anyway, you still might want to take the OED for a spin when you have the leisure. You'll see what I'm saying about it.

[Rockingham]

Thanks. I was utterly unaware that "The Founders' Constitution" is now available online and am delighted to see that it is so. I was not able to find anything useful to the meaning of "several states" there, but I found an online version of Kent's that shows as a chapter heading "Of Constitutional Restrictions on the Powers of the Several States" (http://www.constitution.org/jk/jk_000.htm). To me, that makes sense only if several means not "interstate" or "between the states" but as reference to the states as a whole, which I what I took Madison's meaning to be.

[supercat]

Taking people to court is an effective remedy for a large class of harms, provided that the defendant is available and solvent, your claim is legally sound, you can afford a lawyer, the judge and jury and laws are honest in concept and result, you are willing and able to devote time and effort to pursuing your claim, and the size of your claim in money terms is worth it. Otherwise, to one degree or another, you are screwed.

There are a variety of criminal offenses which involve acting in a manner that causes others to complain. These can range from minor ones (like having an outdoor rock concert at 2am) to major ones (like assault). Murder is a special case because the victim cannot act personally as a complainant, but even there the crime usually comes to the attention of government because someone complains--there generally aren't a bunch of police officers going around looking to see if there are any murder victims about.

If someone has an outdoor rock concert at 2am and nobody in earshot feels like complaining, it's not the government's job to do anything about it.

There is also a large class of problems for which it is better in practical terms to regulate dangerous and destructive conduct before it imposes irreversible harm. Thus speeding is illegal even before there is an accident; the competence of doctors and airline pilots is regulated; you cannot store dynamite in your tool shed in the burbs; and so on.

Speeding is illegal because speeding tickets provide a means of raising revenue. Although there are some cases where speed enforcement is done to promote safety, speed limits are generally set sufficiently below the speed at which roads may safely be traversed that the only reason they are taken seriously is because of people's desire to avoid paying the state.

Reckless driving, unlike most speeding, is a crime which often does affect other people even when it does not result in an accident, because it forces others to take evasive action and interferes with the orderly flow of traffic. Although it is not in most cases practical for people to file complaints against those who cut them off in traffic, the nature of the act is such that there'd be plenty of people willing to file complaints if they could do so.

Even the mere disturbance of your enjoyment of your home is defended by regulations against your neighbors putting on a rock concert down the block.

Answered in my first point.

There is yet another class of harms in which the conduct at issue is destructive or costly to others in a way that is not fully rational or amenable to redress through damages actions or injunctive relief. What do you do for the kid who wonders why his father tells him to piss off through a cloud of smoke on many evenings? Or is glassy eyed and barely responsive? Or who just acts odd and has trouble working because of damage done long ago by drug use?

If the child's parents are abusive to the child, why should it matter whether it's because of illegal drugs, alcohol, or some other cause? And to contrive a system of tort law that offered an effective system of remedies -- against drug dealers and suppliers one supposes -- would still require massive help from law enforcement in order to be made effective. Why wouldn't drug dealers just operate in the shadows beyond view of the law -- just like the millions of illegal immigrants who live off the books and work for less than minimum wage?

If drugs are legal but a seller supplies tainted product, then the people who bought such product or were harmed by it could tell the police about the dealer, whereupon he could be arrested. If the people who buy from the dealer have no reason not to go to the cops, it will be very hard for a dealer to hide unless his actions produce no complaints. And if his actions produce no complaints, what's the problem?

[Rockingham]

If drug dealing is so harmless, then, given a choice, would you willingly live in a neighborhood full of drug dealers and users? Would you be at ease if you saw a drug dealer befriending your children? If you did not like that, would you sue the drug dealer instead of complaining to the cops? Or would you move out of the neighborhood -- and still insist that there was nothing wrong with drug dealing and drug using that tort law could not remedy?

[Mojave]

My argument centers on the individual being the highest authority.

"And where else will this degenerate son of science [Hume], this traitor to his fellow men, find the origin of just powers, if not in the majority of the society? Will it be in the minority? Or in an individual of that minority?" --Thomas Jefferson to John Cartwright, 1824.

[Ken H]

You want me to agree with you on your terms.

That is not true. I asked 1) if you thought Madison and Scalia were in accordance with their views on the Power to RCATSS. I also asked 2) who, between Scalia and Thomas, was more in line with Madison on the same Power.

Considering that this is a thread about the Commerce Clause, SCOTUS, and original intent, those are relevant questions. I answered 1) "No" and 2) "Thomas".

If you want to stand with Thomas and Madison, fine.

In the same case J Thomas dissents. James Madison has no legal opinion nor any opinion that has a direct effect on US law.

That sounds like you're in agreement with my answers to 1) and 2) above. Fair inference?

[supercat]

If drug dealing is so harmless, then, given a choice, would you willingly live in a neighborhood full of drug dealers and users? Would you be at ease if you saw a drug dealer befriending your children? If you did not like that, would you sue the drug dealer instead of complaining to the cops? Or would you move out of the neighborhood -- and still insist that there was nothing wrong with drug dealing and drug using that tort law could not remedy?

First of all, given Prohibition II, it is unlikely that one would have a drug dealer living nearby without suffering the consequences of Prohibition II. Indeed, my biggest worry if I believed there to be drug dealers nearby would be that I might be walking through the hallway sometime when the police burst into my building.

If something like were legal, though, I don't see why I would have to view the owner of a pot store any differently from the owner of a liquor store, or the owner of a porno store, or the owner of a tattoo parlor, etc. Some such people I might not want around my children (if I had any); others I might not mind.

Even if it weren't totally legal, if law-enforcement were complaint-based, I would think a lot of the problems would go away. Basically, if you do drugs but ensure that you don't cause any trouble for anyone, you're fine. If you cause trouble, you're busted. If there was a drug dealer in my neighborhood who was causing problems for everyone, I (and many other people) would want the police to do something. And in such case, they should act because the behavior is causing bona fide complaints. But if there's a drug dealer in the neighborhood and nobody is the wiser (other than those who know how to seek and use drugs discretely), what's the problem?

If there is a problem worth complaining about, then the police should do something. But if there isn't any problem, why should the police do anything?