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.

[Ken H]

The larger issue is what Madison would make of today's use of the federal commerce clause.

The issue is your misunderstanding of Madison's letter to Cabell. You claimed that Madison viewed the power to regulate foreign and interstate commerce as coextensive, and that is just not so. Reread carefully and you'll see that I'm correct.

I do not think Madison would call the current application of the commerce clause unconstitutional.

Huh? You just got through saying:

The Framers of the Constitution and their generation did not intend for the vast scope of federal power today, much of it based on the commerce clause. You also said Wickard was not consistent with original intent. Madison himself said I.8.3. as applied to interstate commerce was not intended for the positive purposes of the general government.

I'm having trouble seeing the consistency in your positions.

[Zon]

Regard original intent. No business can impose a tax on another business, only a state government could, unconstitutionally, attempt to impose a tax on interstate commerce/business.

[Know your rights]

the term used ("among the several states") was likely meant to avoid any implication that Congress could single out and regulate commerce in one state alone.

So you're claiming that regulation of intrastate commerce is allowed by the clause so long as no one state is singled out? Have any evidence for this bizarre claim? Did the Supreme Court ever interpret the clause this way?

[Know your rights]

You claimed that Madison viewed the power to regulate foreign and interstate commerce as coextensive, and that is just not so. Reread carefully and you'll see that I'm correct.

You are correct. I'm afraid Rockingham sees what he wants to see.

[Know your rights]

Most of the naysayers' arguments have irrational premises.

Indeed ... and, sad to say, they present this irrationality as "conservative."

[Know your rights]

My take of your position is that guns can be suppressed/regulated by the federal government based on the commerce clause, as long as there is no outright prohibition on all arms. Am I right?

Sounds that way to me, too. I eagerly await Rockingham's response.

[Know your rights]

in exercise of federal commerce clause power, Congress can and did properly find that the cultivation and sale of marijuana must be suppressed comprehensively.

Even assuming it's true that the feds can effectively suppress interstate trade of marijuana only by suppressing intrastate cultivation and possession, it doesn't follow that they have the Constitutional authority to do so. There is no reason to think the Framers were unaware that placing limits on federal power would make permitted actions less effective than they might be in the absence of such limits.

[Know your rights]

Roe v Wade is viewed as a bad decision by most conservatives and even some high profile liberals. [...] Then you take a legal run at it and we'll see how far you get.

I love when big-government "conservatives" undercut their own arguments. Thanks for the laugh!

[yawningotter]

Wickard is one of those cases that when you read it, you immediately know that it is wrongly decided, even if you don't know anything about the law. In effect, Wickard found that a private citizen interfered with interstate commerce by growing something he intended for his own use. There is no way that the constitution even remotely suggests that this can ever be the case.

[Know your rights]

Wickard is one of those cases that when you read it, you immediately know that it is wrongly decided, even if you don't know anything about the law.

Unless you're a liberal ... or a big-government "conservative" like some on this thread.

[Rockingham]

You are getting far afield from the issue at hand: the scope of the federal power under the commerce clause. It is not credible to hope to limit the federal government today by yanking pre-New Deal commerce clause constitutional practice from the graveyard and resuscitating it. As I suggest, some aspects (the dual federalism doctrine) may be adapted in new forms appropriate to today.

[Rockingham]

Not so, if you read the Constitution in the context of the times. Much of what you argue is a kind of deconstructionism that demands that the Framers write according to your usage and that of the modern era instead of their own.

[Rockingham]

No. On my reading of the Second Amendment, much of current federal gun law is subject to constitutional attack notwithstanding the commerce clause.

[inquest]

Your reasoning is unpersuasive because other evidence is decisively to the contrary

Really? Cite some of this "evidence". I'm not talking about after-the-fact SCOTUS rulings. I'm talking about evidence from the debates and discussions surrounding the drawing up and adoption of the Constitution.

and the term used ("among the several states") was likely meant to avoid any implication that Congress could single out and regulate commerce in one state alone.

You really need to read up on the history of the Constitution's adoption.

While you're at it, look up the word "several". It doesn't just mean, "a whole bunch of them". It has a more specific meaning than that.

[Know your rights]

It is not credible to hope to limit the federal government today by yanking pre-New Deal commerce clause constitutional practice from the graveyard and resuscitating it.

Liberals of fond of chanting "you can't turn back the clock;" I think conservatives should be more optimistic.

As I suggest, some aspects (the dual federalism doctrine) may be adapted in new forms appropriate to today.

What would those "new forms" be, and how much of New Deal commerce clause abuse would they undo?

[Whitewasher]

What Constitution?

[inquest]

Not so, if you read the Constitution in the context of the times.

Reading it in the context of the times works even further against your interpretation. The overwhelming evidence of intent of the interstate commerce clause was to put a stop to state laws that obstruct interstate commerce, not to regulate the actions of private citizens, and certainly not to regulate the actions of private citizens that take place entirely within the borders of a state. Just look over that quote from Madison that I posted at the introduction of the thread.

[Rockingham]

We do not agree as to the meaning of Madison's writings. The nub of the matter is that Madison saw the remedy as being appeals to Congress, not federal court intervention.

As for "original intent," there is a useful parallel with contract law. Contracts are applied according to their terms despite the supposed intent of the parties. Similarly, what Madison and the Framers actually wrote in the Constitution governs, with originalism used to better elucidate the meaning of what they wrote, not as a license for judges to remake the Constitution to be a bulwark against evils that they would shrink from.

Recall the phrase "separation of church and state." It does not appear in the Constitution but in a letter written by Jefferson decades later. In a perverse form of originalist reasoning, Warren era courts used the phrase to build an entire body of constitutional jurisprudence that is at odds with the terms of the Constitution and the true sense of the First Amendment. Similar perversions were worked upon large areas of constitutional law.

The task of genuine originalism is to begin with the Constitution as written and try to understand it in the context of the founding era. But letters and writing of the Framers should not be preferred to the text of the document itself. On that basis, the commerce clause is so broadly written that, as Madison suggests, appeals for limits are properly directed at Congress, not the courts.

[Rockingham]

Read the Federalist Papers and Madison's Notes and the work of Forrest MacDonald and other reliable historians. With your dislike of Supreme Court precedents on the commerce clause, I am surprised to see you suddenly demand such precedents as authoritative. If I produced one for the point urged, would you concede the argument?

[inquest]

We do not agree as to the meaning of Madison's writings.

No, it's more like, KenH understands Madison's plain languange, and you don't.

If someone says, "If taken literally, this clause would mean such-and-such. YET...", most people would understand the "yet" to indicate that it's probably not to be taken literally.

If Madison wanted to say that the same extent belonged to both, he wouldn't have bothered with the "if taken literally" disclaimer. He would have simply said, "Being in the same terms with the power over foreign commerce, the same extent belongs to it."