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.

[Zon]

Not legalized, drugs should be decriminalized. Same validation process as I wrote above. Parents have proven that their child, not being of legal age (21 years old) doesn't yet have the maturity to make certain decisions for him or herself. The same way a parent grabs a sharp knife away from a child or pulls them back from a hot stove. Again, if warranted, a jury could decide if the parent abused the child. Most probably the jury would see the parent as protecting the child. 

I notice that you seek answers as to how the nanny state can make evermore laws for most everything including the absurd. That's what you have sought answers to in your rhetorical questions. 

The part you missed was Article 2. It states when force may be morally-and-legally justified  For it was the answer to your question.... if you had actually thought about what you read you would have realized you had the answer.

[Reagan Man]

>>>>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.

I never claimed to be a member of the "original intent" club. Like J Scalia, I don't believe in original intent. Once on this thread I did associate myself with the term original intent. I misspoke. I do believe in the originalism of "strict constructionism". A strict constructionist believes judges should confine themselves to the clearly implied language of the Constitution.

[Zon]

Two examples highlight how and why the individual is the highest authority. They traverse Article 1 and Article 2.

First example: A man sees a woman standing in the road and is about to be hit by a Mack truck. For a moment he wonders if she is trying to commit suicide. Either way, he figures he can't bare to live with himself if he doesn't at least make an attempt to save her. He bolts into the street and knocks her out of the trucks path -- saving her life. 

Her arm was broken in the process. Clearly the man's intent was to save her life. The woman could press charges against him and seek restitution. Come to find out she didn't want to be saved and the man thwarted her attempted suicide. Clearly he initiated force against her. The man figured he'd rather face an impartial jury of his peers than live knowing he did nothing to try and save her life.

Example 2: A police officer has to arrest a suspect. In his best judgment he concludes that the suspect is the person that assaulted the victim. To apprehend the suspect he uses force as per Article 2. However, not until a jury returns a verdict will he know for "certain" whether he used force in self-defense or initiated force. This he is aware of from the beginning.

[Rockingham]

"Morally and legally justified" as in void where prohibited by morally valid laws?

Without the force of criminal law and the assistance of the authorities, just how do you propose that parents would identify, locate, sue, and collect from drug dealers? What about parents without the resources to do that? And might some kids be allowed by their parents to buy and use drugs, notwithstanding the harm to them?

What if experience showed that criminal laws against drugs were needed to protect kids and others who are vulnerable, like patients on operating tables and airline passengers? In the end, might your exceptions lead back to the equivalent of current laws? If so, then what of the main principle?

The closest parallel to your proposal outside of science fiction and libertarian utopianism is Roman and most traditional law in the ancient world. Slavery was a matter of property and legal, fathers had life and death power over their families, and the only criminal penalties for violation of the law were exile or death.

Tort and contract law became highly developed in the ancient world, with admiralty, banking, and commercial finance law having lasting influence. And, to return to the commerce clause, Cicero and other prominent lawyers of the era urged that as to commerce, there could not be one law in Rome and another in Greece, but that the law must be uniform wherever commerce went. Sound familiar?

[publiusF27]

Care to support your contention (with a cite) that the original intent of the 2nd amendment "was for the federal government not to have a monopoly on the ability to use force internally"?

I have not read replies to this, but in case someone missed the most obvious answer, it comes from Federalist 29:

were I to deliver my sentiments to a member of the federal legislature from this State on the subject of a militia establishment, I should hold to him, in substance, the following discourse:

``The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss. It would form an annual deduction from the productive labor of the country, to an amount which, calculating upon the present numbers of the people, would not fall far short of the whole expense of the civil establishments of all the States. To attempt a thing which would abridge the mass of labor and industry to so considerable an extent, would be unwise: and the experiment, if made, could not succeed, because it would not long be endured. Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.

``But though the scheme of disciplining the whole nation must be abandoned as mischievous or impracticable; yet it is a matter of the utmost importance that a well-digested plan should, as soon as possible, be adopted for the proper establishment of the militia. The attention of the government ought particularly to be directed to the formation of a select corps of moderate extent, upon such principles as will really fit them for service in case of need. By thus circumscribing the plan, it will be possible to have an excellent body of well-trained militia, ready to take the field whenever the defense of the State shall require it. This will not only lessen the call for military establishments, but if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist.''

It appears to me that Hamilton wanted to march us all out a couple of times per year to check and make sure we each had a militia-appropriate weapon. He seems to have wanted to do this so that there would always be a large body of armed citizens capable of taking on a standing federal army, if one should exist.

[Senator Bedfellow]

Without the force of criminal law and the assistance of the authorities, just how do you propose that parents would identify, locate, sue, and collect from drug dealers? What about parents without the resources to do that?

Worse, assume you've overcome those hurdles and successfully sued the local crack dealer for attempting to sell to little Johnny. How do you enforce any judgement obtained against him? After all, he didn't forcibly or fraudulently deprive you or anyone else of life, liberty, or property - he just offered your third grader a big fat rock. So as a practical matter, under such a scheme, neither you nor the state have any legal justification for depriving him of his property, or his liberty. So naturally, he just gives you the finger and heads right back to the playground. Lovely, eh?

[tacticalogic]

A strict constructionist believes judges should confine themselves to the clearly implied language of the Constitution.

I believe that that sort of "strict construcionism" soon gives rise to a purely textualist interpretation, where only the text of the document is considered.

Without the anchor of intent we are left with little more than a word game, where the enumerated powers of the federal government are limited only by the combinations of possible definitions we can find to assign the words.

[Mojave]

Two examples highlight how and why the individual is the highest authority.

Two non sequiturs.

[publiusF27]

Linking drugs with firearms should have immediately raised a red flag for most folks, leading to the only rational answer possible, "Undecided/Pass".

Hey, the Bush administration linked them long before this poll appeared, and the Supreme Court accepted that linkage in overturning this decision.

[robertpaulsen]

"Any law which is strongly opposed by even a third of the citizenry is a bad law."

87.4% of statistics are made up.

[robertpaulsen]

The Commerce Clause power is not used to legislate intrastate activity. Why are you all getting hung on "among" and "several"?

[robertpaulsen]

So you and your children would voluntarily live in a neighborhood surrounded by liquor stores, porno stores, tattoo parlors, and drug dealers, and only object if they "caused trouble" for everyone.

Un-fricken-believable. Do you realize there are hunderds of thousands of people trapped in such neighborhoods that would give their soul to get their children out?

(Mojave, check this out -- my candidate for the contest of What-I-am-willing-to-do-just-so-people-can-legally-smoke-dope.)

[robertpaulsen]

"I am not familiar enough with the passage cited to know exactly what possibilities ..."

Ah, that's not allowed (and that's not the issue). KenH wants you to define "rather than" in a vacuum. You must definitively and absolutely state what that phrase means in any and all cases.

KenH says that it always means "and not" .... except in those cases where it means "instead of". He's real sure of that, however.

Now, where he's going with this, I have no idea. Just humor him and he'll fall back to sleep.

[robertpaulsen]

"Conversely, no person has proved they were harmed by a person's act of possessing drugs in their own home."

Whoa! 1,500,000 people are arrested each year on drug charges. Not everyone is staying home doing drugs in their living room, amigo.

What if a U.S. survey showed that where drugs were legal for adults at home, teen use was double? Would that indicate to you that some harm was taking place? Would that be a good reason, then, to make drugs illegal?

[robertpaulsen]

According to that, I can drink and drive. And speed.

Certainly you're not going to punish someone who hasn't harmed anyone (or themselves).

[robertpaulsen]

Damn. You're no fun. You make way too much sense.

[robertpaulsen]

"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."

That's not what they said.

Congress, through the power of the Necessary and Proper Clause (Article 1, Section 8, Clause 18), may legislate intrastate activity that has a substantial effect on the interstate commerce that Congress is currently, and constitutionally, regulating.

The Necessary and Proper Clause must be used in conjunction with another Article I, Section 8 power -- it is not a stand-alone, carte blanch power.

[robertpaulsen]

"Not legalized, drugs should be decriminalized."

So you answered "yes" to the poll question above?

[Ken H]

Like J Scalia, I don't believe in original intent. Once on this thread I did associate myself with the term original intent. I misspoke. I do believe in the originalism of "strict constructionism". A strict constructionist believes judges should confine themselves to the clearly implied language of the Constitution.

SCALIA: "I have described for you my criterion for the meaning of The Constitution, which is what does the text say and what did that language; what was that language understood to mean when it was adopted? This is called originalism."

--http://www.manhattan-institute.org/html/wl1997.htm

"The Constitution, when it comes before a court, should mean exactly what it was intended to mean when it was adopted, nothing more, nothing less," Scalia told a generally supportive audience of several hundred people at the George Bush Presidential Library.

-- http://bearcastle.com/blog/?p=264 (quoting Houston Chronicle, 5 May 2005 article)

[robertpaulsen]

If I may interject.

First of all, I see that Zon is now backtracking and not calling for legalization but decriminalization. That would leave the laws on the books. (And he would have answered "yes" to the above survey.)

That aside, I think his point is that the language of the federal laws needs to change -- laws against possession (for example) should reflect the restrictive interstate authority of the federal laws.

That is, the law should read that drug possession while travelling interstate is against the law. Or drug possession with the intent of travelling interstate (about to get on a plane) is against the law. Something like that.

This way, a scumbag drug dealer person gets their day in court -- to say that they were lost and did not know they were driving interstate with 150 pounds of marijuana in the trunk.

Given the fungible nature of marijuana and the way the federal law reads, however, once jerkoff is across the state line he's free and clear. Tee-hee-hee. Isn't the Libertarian world one big wink-wink, nudge-nudge?