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.

[BikerNYC]

The Commerce Clause power is not used to legislate intrastate activity.

It isn't? Maybe I missed something. So, if a machine gun is made from Bethlehem steel in PA, sold in PA, never leaves PA, and has no contact with anything outside of PA, the federal government cannot reach it through the commerce clause?

[robertpaulsen]

"Without the anchor of intent we are left with little more than a word game"

Would you restrict the Constitution to the original intent of the language? The original intent of the word "commerce", for example, was to encompass only actual goods.

If you would not, then what's the point? Why should we be aware of original intent?

[Rockingham]

Yup. That's about the size of it under Zon's proposal.

[inquest]

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"

And as you can see from the link to that chapter, the very first sentence is:

"WE proceed to consider the extent and effect of certain constitutional restrictions on the authority of the separate states."

[Reagan Man]

I disagree with you, of course.

CJ Rehnquist was a strict constructionist of sorts. IMO, J Scalia is a strict constructionist of sorts, along with being a self-professed textualist and an originalist. Scalia's view on this entire matter of interpretation makes a lot of sense.

"The theory of originalism treats a constitution like a statute, and gives it the meaning that its words were understood to bear at the time they were promulgated. You will sometimes hear it described as the theory of original intent. You will never hear me refer to original intent, because as I say I am first of all a textualist, and secondly an originalist. If you are a textualist, you don't care about the intent, and I don't care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words."

>>>>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.

Word game? I think not. Obviously Scalia disagrees with you and so do I. You confuse the term strict constructionism with loose constructionism. The former being a conservative view that limits judicial interpretation, the latter being a liberal view more aligned with judicial activism.

Suffice it to say, whether you support original intent or the originalism associated with strict constructionism, both interpret the Constitution narrowly.

Once again. "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. If these writings were significant, the Founders would have made them part of the Constitution itself."

[robertpaulsen]

"So, if a machine gun is made from Bethlehem steel in PA, sold in PA, never leaves PA, and has no contact with anything outside of PA, the federal government cannot reach it through the commerce clause?"

Correct. The Commerce Clause power only extends to commerce among the several states (interstate commerce).

HOWEVER, since Congress is currently (and constitutionally) regulating the interstate commerce of machine guns, they have the power over any activity that substantially affects their interstate regulatory efforts. They obtain this power from Article I, Section 8, Clause 18, the Necessary and Proper Clause which can only be used in conjunction with another Article I, Section 8 power.

Congress has determined that it is necessary and proper for them to legislate this Pennsylvania activity because this intrastate activity, done by every state, would have a substantial effect on their interstate regulatory efforts.

And it would. And you know it.

[robertpaulsen]

"and I don't care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States"

Hmmmmm. I wonder how he feels about the 14th amendment.

The authors of the 14th thought it made the BOR applicable to the states. They were the only ones who felt that way. Congress, the states, the courts ... all assumed differently -- to this day.

[Reagan Man]

>>>>"The theory of originalism treats a constitution like a statute, and gives it the meaning that its words were understood to bear at the time they were promulgated. You will sometimes hear it described as the theory of original intent. You will never hear me refer to original intent, because as I say I am first of all a textualist, and secondly an originalist. If you are a textualist, you don't care about the intent, and I don't care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words."

-J Scalia

[Rockingham]

The commerce clause is such a bare grant of authority that opponents of greater federal power have sought to wring meaning from slender evidence. Historically, with the expansion of interstate commerce, the scope of exclusively intrastate commerce and state power has inevitably diminished. As an advocate of limited government, I understand all too well the heartburn that expansion of federal power causes even when, as with the commerce clause, the basis for well-founded opposition is so limited.

[Ken H]

Your contention that congress can 'find' "substantial effects" to justify there own unconstitutional prohibitions is legalistic sophistry.

It couldn't be said any better than FReeper Rockingham:

"Of course, if scoundrels and fools are at the helm, even a properly ballasted and keeled ship can be wrecked -- which is what the New Deal and its judicial accomplices did to the Constitution."

http://www.freerepublic.com/focus/f-news/1408730/posts post #113

[robertpaulsen]

"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."

He never envisioned a standing federal army. A standing federal army scared the bejesus out of the Founding Fathers. How could he possibly envision "a large body of armed citizens" capable of taking one on when one didn't exist?

So how was the federal government to have a monopoly on the ability to use force internally WHEN THEY HAD NO FORCE?

[steve-b]

effective suppression of marijuana cultivation and sale in interstate commerce necessarily requires its suppression in intrastate commerce

Even if that were true, it is simply not relevant. To illustrate by analogy: If I'm hired to secure an office building against vandalism and graffiti, I can argue that I can't effectively do it unless I'm allowed to go into the surrounding community and suppress criminality in the area generally -- but that's just too bad, because my authority is still limited to the property of the guy who hired me.

[Ken H]

"The theory of originalism treats a constitution like a statute, and gives it the meaning that its words were understood to bear at the time they were promulgated. You will sometimes hear it described as the theory of original intent. You will never hear me refer to original intent, because as I say I am first of all a textualist, and secondly an originalist. If you are a textualist, you don't care about the intent, and I don't care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words."

"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,"

Those statements don't seem consistent. Does Scalia care what the Founders intended to mean or not?

[Reagan Man]

Clearly, Scalia doesn't care what the Founders intent was. Scalia is more a follower of "original meaning", not "original intent".

[BikerNYC]

HOWEVER, since Congress is currently (and constitutionally) regulating the interstate commerce of machine guns, they have the power over any activity that substantially affects their interstate regulatory efforts. They obtain this power from Article I, Section 8, Clause 18, the Necessary and Proper Clause which can only be used in conjunction with another Article I, Section 8 power.

Can you point me to this "substantially affects" language in the Constitution?

Congress has determined that it is necessary and proper for them to legislate this Pennsylvania activity because this intrastate activity, done by every state, would have a substantial effect on their interstate regulatory efforts.

In other words, Congress has the right to regulate intrastate activity because anything done by every state within its borders would have an effect on interstate trade.

[robertpaulsen]

I understand what you're saying. You may consider the following a mere technicality, but I think it's important -- important because the expansion of government power is NOT due to some unconstitutional "intrastate" expansion of the Commerce Clause.

"[T]he New Deal Court’s own constitutional justification for its radical expansion of the scope of federal power over commerce was that the congressional measures in question were valid exercises of the power granted by the Necessary and Proper Clause and were not direct exercises of the power to regulate commerce among the several states. That is, the Court did not simply and directly enlarge the scope of the Commerce Clause itself, as is often believed. Rather, it upheld various federal enactments as necessary and proper means to achieve the legitimate objective of regulating interstate commerce."
-- Stephen Gardbaum, Rethinking Constitutional Federalism, 74 Tex. L. Rev. 795, 807-08 (1996)

[Ken H]

Clearly, Scalia doesn't care what the Founders intent was.

So whose intent was Scalia referring to when he says the Constitution should mean what it was intended to mean at the time of adoption?

[robertpaulsen]

"but that's just too bad, because my authority is still limited to the property of the guy who hired me"

No. He told you that IF the criminality in the area had a substantial effect on your ability to secure the office building against vandalism and graffiti, that you had the power to use necessary and proper force to suppress that criminality.

[steve-b]

Nope, I see no restrictions there, other than the fact that Congress is responsible to the voters who put them there and may just as easily remove them.

Your grammatical error is revealing, since you have endorsed the position that Congress has the legal right to order the extermination of some, or all, of the population.

Obviously, a position that leads to so absurd a conclusion is without merit.