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FR Poll Thread: Does the Interstate Commerce Clause authorize prohibition of drugs and firearms?
Free Republic ^ | 11-3-05

Posted on 11/03/2005 2:24:08 PM PST by 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.


TOPICS:
KEYWORDS: alito; banglist; commerce; commerceclause; frpoll; herecomesmrleroy; interstate; interstatecommerce; madison; no; scotus; thatmrleroytoyou; wodlist
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To: Rockingham

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.

701 posted on 11/08/2005 3:28:01 PM PST by Zon (Honesty outlives the lie, spin and deception -- It always has -- It always will.)
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Comment #702 Removed by Moderator

To: Senator Bedfellow

I'm abandoning spending time on replying to you. You're not worth the effort. Anyone that cares to learn, I've written enough for them. No need to repeat myself.


703 posted on 11/08/2005 3:33:36 PM PST by Zon (Honesty outlives the lie, spin and deception -- It always has -- It always will.)
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To: Zon
I'm abandoning spending time on replying to you. You're not worth the effort. Anyone that cares to learn, I've written enough for them. No need to repeat myself.

LOL. Neo-Tech mojo running a bit low today, eh? Time for a recharge of the ol' Zonpower?

704 posted on 11/08/2005 3:39:41 PM PST by Senator Bedfellow
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To: Zon

Individual experience and that of a single society are inferior to a broader view. Every time that I have read Madison's Notes on the Constitutional Convention, I am impressed by the delegates' wide and sophisticated knowledge of human history, which contributed greatly to the success of their efforts. For us, like for them, we do know what the future will bring: more of the same, especially of the enduring defects of human character.


705 posted on 11/08/2005 3:42:35 PM PST by Rockingham
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To: Senator Bedfellow

Impossible to have too much fully integrated honesty.


706 posted on 11/08/2005 3:57:15 PM PST by Zon (Honesty outlives the lie, spin and deception -- It always has -- It always will.)
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Comment #707 Removed by Moderator

To: airborn503
>>>>Randy E. Barnett wrote a book about the "Presumption of Liberty" in our Constitution.

Yeah, I know. So?

>>>>Odd 'laugh'. A negation of some of our liberties is amusing?

Not at all. I was laughing at you.

>>>>Two bits all I get in answer is another inane LOL.

Actually, you're not getting any answer, wisenheimer.

>>>>Who gave congress the power to "create" prohibitions on drugs?

The commerce clause of the US Constitution.

708 posted on 11/08/2005 4:01:44 PM PST by Reagan Man (Secure our borders;punish employers who hire illegals;stop all welfare to illegals)
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Comment #709 Removed by Moderator

To: airborn503

Is that you owk?


710 posted on 11/08/2005 4:27:55 PM PST by Reagan Man (Secure our borders;punish employers who hire illegals;stop all welfare to illegals)
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To: 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.

Are you objecting to my statement because you think the 33% figure is arbitrary? No need to argue that--it is. But so what? There's some exact figure where a law which is opposed by X+0.1% of the citizenry is a bad law and one opposed by X-0.1% is a good law. The strength of opposition and the nature of the law in question would play such a significant role as to render the exact value of X meaningless.

I would suggest that very few good laws are going to be strongly opposed by even 10% of the population, and that if a law is strongly opposed by that many people, it's likely a bad law. Up the figure to 20% and it becomes even more likely. I'd say that by the time 33% of the people are strongly opposed to a law, it's almost certainly a bad one.

Among other things, if a law is enforced against the strong objection of 33% of the people, those 33% of the people are going to view the government as a tyrannical enemy. If the government passes more than one such law, that view of the government will be even more widespread. A government cannot pass very many such laws before it can only survive through tyranny.

711 posted on 11/08/2005 4:29:22 PM PST by supercat (Don't fix blame--FIX THE PROBLEM.)
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To: Zon

No doubt.


712 posted on 11/08/2005 4:37:19 PM PST by Senator Bedfellow
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To: Rockingham
And so we wander back to the original issue.

And so far, there's been no response that I've seen to this "original issue". It's been shown that the founders did not intend the interstate commerce clause for the purpose of restricting the commercial activities of private citizens. If Congress wants to use it for that purpose, I suppose there's nothing immediately obvious about the clause that prevents it, but that doesn't mean the clause should then be interpreted in such a way as to enable Congress to do anything it deems necessary to make that restriction effective.

If Congress finds it's having a hard time using the clause for purposes for which it was never intended, that's Congress's problem. The meaning of the clause should not be stretched to accomodate that. Otherwise, the 10th amendment becomes a dead letter.

714 posted on 11/08/2005 4:49:30 PM PST by inquest (FTAA delenda est)
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To: robertpaulsen
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.

"Commerce" was the act of trade or exchange. The "actual goods" were refered to as "objects of commerce", a term given to discrete objects upon their entrance into the stream of commerce, held for as long as they remained there, and abandoned upon thier departure.

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

I would. We should be aware of original intent because there exist people who will take the successful misapplication of a single term, like "commerce" as license to take similar liberties with the surrounding terms like "regulate" and "among the several states" until the final product bears little resemblance to the original idea. The consequences of such manipulations combined with the existence of people who will engage in them make the advisability of referring to original intent whenever and whereever possible self evident.

IMHO.

715 posted on 11/08/2005 4:52:31 PM PST by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
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To: 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."

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."

Very often these writings are the historical record of that promulgation.

716 posted on 11/08/2005 5:00:53 PM PST by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
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To: supercat

A government cannot pass very many such laws before it can only survive through tyranny.

I hadn't thought of it that way -- the whole post.  It seems as a valuable perspective to integrate. Thanks.

717 posted on 11/08/2005 5:08:58 PM PST by Zon (Honesty outlives the lie, spin and deception -- It always has -- It always will.)
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To: tacticalogic
I thought you might go there. Okay. Another Scalia-like view point.

As I have explained elsewhere, "original meaning" refers to the meaning a reasonable speaker of English would have attached to the words, phrases, sentences, etc. at the time the particular provision was adopted. It is originalist because it disregards any change to that meaning that may have occurred in the intervening years. It is objective insofar as it looks to the public meaning conveyed by the words used in the Constitution, rather than to the subjective intentions of its framers or ratifiers. By contrast, "original intent" refers to the goals, objectives, or purposes of those who wrote or ratified the text. These intentions could have been publicly known--or hidden behind a veil of secrecy. They could and indeed were likely to be in conflict.

- Randy E. Barnett, University of Chicago Law Review - Winter, 2001

718 posted on 11/08/2005 5:25:02 PM PST by Reagan Man (Secure our borders;punish employers who hire illegals;stop all welfare to illegals)
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To: Reagan Man

An interesting point, considering that Barnett argued the Raisch case.


719 posted on 11/08/2005 5:34:44 PM PST by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
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To: robertpaulsen
How could he possibly envision "a large body of armed citizens" capable of taking (a standing federal army) on when one didn't exist?

How? He clearly did envision that possibility.

Federalist 29 again

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.

Sure looks to me like he is contemplating a federal standing army, and a militia as a way to avoid that necessity, and a militia to guard against that standing army, should it exist.

But, if this thread has taught us anything, it is certainly that two people can look at the exact same quotation the same way. You seem to see that one without seeing the intention to avoid a federal monopoly on the use of force. So what do you see?
720 posted on 11/08/2005 5:39:25 PM PST by publiusF27
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