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.

[Senator Bedfellow]

It should be illegal to sell alcohol and drugs to minors.

Why? There's no force or fraud involved, so let's go for it.

Even if it weren't, parents have the right if not obligation to protect their child from their immaturity that renders them unable to make informed choices.

So contrary to your Article 1, we should be able to interfere with the crack dealer's right to enter into contracts to sell his product.

If it were an adult (potential customer) the dealer was attempting to make a sale to the potential customer could take the dealer to court and try to convince an impartial jury that he was harmed by the drug dealers attempt to sell him drugs.

Oh? And what form would such an argument take? You and I are standing on a street corner, when I offer you a nice, fat eight-ball of blow. Please explain how this offer, in and of itself, has harmed you. Be as specific as possible.

[Rockingham]

Actually, it is valid because restrictions on and grants of power to government are meant to be construed so as to accomplish their purposes. Thus the First Amendment applies to protect freedom of speech through electronic media even though they were unknown to the era in which the Bill of Rights was adopted.

Your analogy of the building guard breaks down because his grant of authority cannot exceed that of the building owner, who presumably does not own the surrounding homes. Of course, a cop hired as a building guard might have additional powers of enforcement that allowed him to chase down vandals and graffiti artists in hot pursuit.

As for the commerce clause, the suppression of marijuana requires a comprehensive effort because the stuff can cultivated in commercial quantities in a small space. If a pot plant or two under a grow light in a garage seems harmless and beyond the reach of the federal commerce power, consider the effect of the same putative intrastate exclusion applied to the cultivation of some noxious species like piranha or Asian snakehead fish or anthrax cultivation.

Notably, this line of reasoning treats marijuana as one of a special class of cases in which the federal commerce clause necessarily extends further than it would in most instances. This ought to be of some comfort to those who are not marijuana advocates and who otherwise prefer a limited scope for the federal commerce clause. Am I wrong in thinking that there are only a few here whose want the commerce clause limited but who are not also marijuana advocates?

[Zon]

"Every society has a right to fix the fundamental principles of its association, and to say to all individuals, that if they contemplate pursuits beyond the limits of these principles and involving dangers which the society chooses to avoid, they must go somewhere else for their exercise; that we want no citizens, and still less ephemeral and pseudo-citizens, on such terms. We may exclude them from our territory, as we do persons infected with disease."
-- Thomas Jefferson to William H. Crawford, 1816.

Individuals that make up a society can be manipulated by propaganda to accept tyranny of the majority--mob rule. A dumbed down citizenry will make self-defeating choices predicated on irrational principles.

Also in1916 Jefferson wrote:

"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 to Francis Gilmer, 1816.

Eight years latter Jefferson wrote thisin1824:

"We had never been permitted to exercise self-government. When forced to assume it, we were novices in its science. Its principles and forms had entered little into our former education. We established some, although not all its important principles." --Thomas Jefferson to John Cartwright, 1824 [Emphasis mine.].

Jefferson continued educating himself in many areas. Probably none more so than his ongoing understanding of the principles underpinning self-government Identifying errors and correcting them as he progressed.

The progression didn't stop with Jefferson. Thus my suggestion for the three Articles at 591

[inquest]

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

I bet if you thought real hard about it, you should be able to answer your own question.

(Hint: It's in the Constitution)

[inquest]

Actually, it is valid because restrictions on and grants of power to government are meant to be construed so as to accomplish their purposes.

But not necessarily meant to be construed to accomplish whatever purpose Congress has in mind in making use of those powers.

[Rockingham]

A useful observation, but I am not sure that it offers a way back to a narrow reading of the federal commerce clause or an effective legal attack on federal regulatory schemes. I have more hope that regulatory and welfare programs can be attacked by proving that they do not serve their claimed purposes.

In the landmark New Deal cases, the Court took care to explain that its rulings were based on deference to the Congress and that its decisions were made without a record of how the regulatory schemes worked in practice. Today, the terms of judicial scrutiny of legislative power are highly accommodating but still, in concept at least, permit challenges to legislative enactments through fact-intensive showings that the legislature got the calculation of means and ends wrong.

Of course, in this discussion we are indulging the common lawyer and layman fantasy that courts make their rulings in pure fidelity to the law without considering political and other factors. Most lawyers know better but prefer to believe otherwise.

I recall one account of how, losing case after case, federal government lawyers involved in the TVA repeated warned that the project was unconstitutional and that they would eventually lose before the Supreme Court. The general counsel for the agency brushed aside their concerns and said that no matter what the law was, the project would be built and that in the end the Supreme Court would not declare a billion dollars worth of concrete and electric power illegal. He was, sadly, proved correct, and the TVA is still with us long after its supposed justifications have become obsolete or been proved wrong.

[Rockingham]

Or, the question might have been put as: "Would you like a couple of free joints to go with that Glock you just bought?"

[Rockingham]

And so we wander back to the original issue.

[Rockingham]

Sorry. I was clueless to that point of etiquette.

[Zon]

Why? There's no force or fraud involved, so let's go for it.

I've explained numerous times on this thread how threat of fraud is involved.  Furthermore, if the act of selling drugs to a minor is completed it would be fraud. The remainder of your post is irrelevant due to your refusal to comprehend and acknowledge how the threat of fraud is foisted on the child. 

Zon: If it were an adult (potential customer) the dealer was attempting to make a sale to the potential customer could take the dealer to court and try to convince an impartial jury that he was harmed by the drug dealers attempt to sell him drugs.680

Oh? And what form would such an argument take? You and I are standing on a street corner, when I offer you a nice, fat eight-ball of blow. Please explain how this offer, in and of itself, has harmed you. Be as specific as possible.

In quoting me you omitted the very next sentence that partially addressed your question. Here it is:  Most likely, if the judge didn't dismiss the case the impartial jury would find that no harm was done to the plaintiff. And the paragraph that followed further addressed why an adult would almost never take such a claim to court.

To specifically answer your question, as a legal adult, which we both are, you have not harmed me and thus I wouldn't take you to court. Thanks for glorifying The Point: It's wholly unnecessary to have a law to protect me from that which doesn't harm me. You don't need a law to protect you from a drug dealer offering to sell you drugs -- a law that criminalizes the drug dealer. 

Frankly, your response is baffling, how could you not see the trap you set for yourself.

The WOD serves political agenda and the parasites that prey on innocent citizens whom are minding their own business.

BTW, I see that you are a new poster to the forum. A kindly word of advice: read my tagline. It especially applies to politicians, bureaucrats and their bedfellows.

[robertpaulsen]

Yep. There it was. I found it. Right there in the constitution.

But that's not what I was talking about.

[Senator Bedfellow]

I've explained numerous times on this thread how threat of fraud is involved.

Then I'm sure it won't be too much trouble for your to copy and paste it one more time. Ctrl-C, Ctrl-V, if you need a reminder.

Furthermore, if the act of selling drugs to a minor is completed it would be fraud.

How? Please explain in as much detail as possible what fraud is inherent in selling drugs to children. Compare and contrast by explaining how there is no fraud inherent in selling children bubble gum or baseball cards.

The remainder of your post is irrelevant due to your refusal to comprehend and acknowledge how the threat of fraud is foisted on the child.

You have posted nothing of the sort, for me to either comprehend or acknowledge. If you'd like to remedy that, we can proceed. How does offering drugs to children constitute fraud? Ctrl-C, Ctrl-V.

To specifically answer your question, as a legal adult, which we both are, you have not harmed me and thus I wouldn't take you to court.

What you have failed to explain is how offering drugs to children does harm them. Not the actual transaction, or the use or anything - you are asserting that the mere offer is itself harmful, without bothering to explain how.

BTW, I see that you are a new poster to the forum.

Appearances can be deceiving.

A kindly word of advice:

I'll be sure to give it exactly as much consideration as it deserves, rest assured.

[Rockingham]

With marijuana and other drugs barred to kids -- as they should be -- we would inevitably find that to make the ban as effective as possible for their sake and others, we need a system like we have now, as flawed and messy as it is.

The many federal and state drug prohibitions are based on experience and were adopted and have been maintained through democratic processes. Most voters do not want to be around chronic drug users and regard them, correctly, as noxious, costly, and often dangerous. The only credible choices available are to enact laws against drugs, avoid chronic drug users, and punish their behavior.

As my screen name suggests, I am a Burkean conservative. Radical libertarianism appalls me precisely because it is radical. The history of the species shows that most radical things go badly wrong and become destructive in ways that their even their proponents come to regret. Reforms must be pursued, and I believe in America as a Reaganesque "City on a Hill," but radical changes motivated by utopian illusions are a deadly snare for any society that pursues them.

[Zon]

Thanks. Great read.

[Zon]

Appearances can be deceiving.

You joined on 10/7/2005. Nothing deceiving about that. One month, that's newbie territory. Perhaps you have or had an earlier screen name that you posted from?

[Senator Bedfellow]

All that, and this is what you choose to address? Bespeaks a certain weakness in your argumentation, that you abandon it so quickly, I think...

[Rockingham]

I endorse your point, with the exception that the worst culprits in our troubles are always poised to run for cover and avoid blame and loss personally. We live in a great but decaying Republic, capable of reform and renewal, but flirting with and beset by great dangers, some of which are of our own making. From Thucydides and Machiavelli on, shrewd political minds have known that such situations are fraught with the potential for both recovery and tragedy. As ever, the American people as a whole are the best hope for the country and for mankind.

[Zon]

The many federal and state drug prohibitions are based on experience and were adopted and have been maintained through democratic processes. Most voters do not want to be around chronic drug users and regard them, correctly, as noxious, costly, and often dangerous.

Citizens in countries where private ownership of arms was prohibited thought gun prohibition was a good thing. A dumbed down public that has been propagandized is easily manipulated to seemingly desire an end result that is detrimental to the individual and society as a whole.

Radical libertarianism appalls me precisely because it is radical. 

Libertarians doesn't prescribe to fully integrated honesty. I do. Radical? History has nothing to offer as an example of what's about to come.