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.

[Mojave]

I also know that there are certain standard procedures for dealing with standard evidence to not only prevent tampering, but to help prove that the evidence was not tampered with.

How's OJ's search for the killer going?

[Calamari]

No

[Atlas Sneezed]

There is a massive interstate commerce in illicit drugs.

---

Bully.

The Commerce clause was intended to give the feds limited authority to step in and exercise power when states are impairing interstate commerce (such as with tariffs at state borders).

So, if California exacts a hefty protectionist import tax on marijuana from other states in order to protect its growers, then you might have a point about the Constitutional justifications for federal intervention on the drug issue.

It's easy to be a Constitutional conservative on most issues, but sometimes, it is difficult for many people to hold to their conservative principles on a few issues.

[supercat]

When the Bible says "Receive my instruction rather than silver", does it mean silver is also an acceptable choice?

A normal reading of that phrase would suggest that "instruction and not silver" is a right choice, while "silver and not instruction" is not only a wrong choice, but it is a worse choice than "neither instruction nor silver". The phraseology does not imply that "instruction and silver" would be an unacceptable choice, though it does not particularly expect that choice to be available to the listener/reader.

[supercat]

How's OJ's search for the killer going?

I believe O.J. committed the murders of which he is accused. I do not happen to believe that there was any deliberate action by the police to tamper with the evidence, nor that the sloppy handling of the evidence in fact caused it to implicate O.J. in any way that it rightfully should not.

On the other hand, I do not particularly fault the jury for finding that police sloppiness opened up room for doubt. The police had the opportunity to follow proper evidence-preservation procedures during their investigation and they failed to do so. I fail to see why you would blame a jury for the police's mistakes.

[Mojave]

Massive black markets are created by prohibitions on "illicit" objects.

Massive falsehoods are created by promoters of illicit drugs.

[Mojave]

The Commerce clause was intended to give the feds limited authority to step in and exercise power when states are impairing interstate commerce

That too.

It's easy to be a Constitutional conservative on most issues

Dope advocates just pretend to be Constitutional conservatives.

[Reagan Man]

Let's try and boil this down to the basics.

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. Congress can regulate interstate commerce of drugs by the power granted to it under Article 1, Section 8, Clause 3 of the US Constitution, commonly called, the commerce clause. Scalia got it right in his legal opinion concerning interstate commerce and aspects of intrastate activity that may ultimately effect interstate commerce. Congresses role in regulating the commerce clause is part of their constitutional duties. Article 6, Clause 2 of the Constitution is called the Supremacy Clause. It establishes the Constitution, Federal Statutes, and U.S. treaties as the supreme law of the land.

[Rockingham]

Again, the problem is that your view of the commerce clause coincides with Anslinger's -- an uncomfortable ally for you to have. Laugh it off. From time to time, we all get stuck with allies that we would prefer not to have.

[TeleStraightShooter]

Yes, we know that there were many in the several confederated colonies that demanded a bill of rights be added to the new Constitution as a prerequisite of ratification.

It's obvious why they included the 2nd amendment and left out the Right to Take Life.

[Rockingham]

To me, Madison's usage of the term "several states" and the Constitution's as well seems to refer to the states as a whole. Disagreement on this is of minor consequence and not dispositive as to the scope of the commerce clause. I am at a disadvantage in offering more on the phrase "several states" because I am on the road and my preferred set of reference works are unavailable until I get home.

[Rockingham]

Like it or not, for the foreseeable future, Raich has settled commerce clause law against the existence of a significant "intrastate commerce exception."

Moreover, for compelling cultural and political reasons, the country at large will not embrace Congressional recognition of such an exception as to marijuana. Within ten years, new test technologies are likely to diminish the appeal of marijuana by improving law enforcement methods. In the same time frame, new therapies based on cannabinoid compounds will dispose of claims that smoking marijuana has unique medical value.

[Rockingham]

No, the Constitution is not lost, but we ought not to weary ourselves by trying to refight battles lost decades ago at the expense of winning the new battles that are constantly before us.

My posts on this thread began with #10:

"The commerce clause is a more complicated issue than many conservatives realize or are willing to accept. Oddly, marijuana advocates are some of the most rabid as to federal commerce clause even though, as a group, they are not conservatives or natural or reliable allies for conservatives."

"In essence, beginning in the late 19th Century and through the 1920's, federal courts -- composed mostly of Republican appointees -- expanded the reach of the commerce clause as they decided cases involving federal laws that promoted and protected interstate commerce. Railroads and telegraph companies lead this trend, often by seeking to overturn local and state laws that attempted to regulate their operations."

"Then in the 1930's, for the sake of the New Deal, federal courts -- now with mostly Democratic appointees -- relied on those precedents from business disputes to expand the commerce clause as a basis for federal power to regulate the entire economy."

"My take on the matter is that there is no going back to some Edenic era of constitutional law in which limitations on the commerce clause restrained federal power. At best, federal and state interests might be better balanced and an irreducible core of exclusive state authority reestablished. This could probably be done through revising the federal preemption doctrines that were developed in the 1940's and after to supplant the "dual federalism" approach."

"Of course, that would not satisfy marijuana advocates because effective suppression of marijuana cultivation and sale in interstate commerce necessarily requires its suppression in intrastate commerce. No matter how energetic and ingenious, arguments to the contrary from lifestyle libertarians are wrong on the facts."

"Fundamentally, conservatives (and economic libertarians) should aim at new political and legal arguments and doctrines that limit federal power. The commerce clause is a weak and broken levee against the great torrent of public expectations that long ago mobilized federal law, tax power, and cash toward national purposes great and small."

"Over the next generation though, there will be a slow motion federal bankruptcy due to the massive generational and structural deficit caused by low native birth rates and excessive federal benefits promised to the baby boom generation. The impending painful adjustment can be used to definitively discredit and prune back federal power -- but only if we adapt ourselves to the times instead of missing opportunities by trying to re-fight commerce clause battles that our great-grandparents lost."

You can trace the exchanges after that by putting my screen name into the find feature and running through the thread.

[Ken H]

Receive my instruction rather than silver;

A normal reading of that phrase would suggest that "instruction and not silver" is a right choice, while "silver and not instruction" is not only a wrong choice, but it is a worse choice than "neither instruction nor silver". The phraseology does not imply that "instruction and silver" would be an unacceptable choice, though it does not particularly expect that choice to be available to the listener/reader.

I'm not sure what you mean by "it does not particularly expect that choice to be available to the listener/reader." . Does it seem reasonable that the Verse intended for both "instruction" and "silver" to be one of the choices? If not, why muddy the waters?

The meaning seems very clear. Choose the spiritual, rather than the secular.

[Ken H]

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.

Agreed.

Congress can regulate interstate commerce of drugs by the power granted to it under Article 1, Section 8, Clause 3 of the US Constitution, commonly called, the commerce clause. Scalia got it right in his legal opinion concerning interstate commerce and aspects of intrastate activity that may ultimately effect interstate commerce. Congresses role in regulating the commerce clause is part of their constitutional duties.

You've been clear on those points as well.

I'm still trying to find out if you think Scalia's view of the power to RCATSS (which I quoted from Raich) is consistent with Madison's letter to Cabell, and Federalist 45. Yes or no?

[Reagan Man]

Let me say this. The commerce clause is a specifically delegated power given to the Congress by the Constitution and helps determine the extent of federal legislative authority. Madison's remarks talk about the separation of powers between the feds and the states, but doesn't specifically mention the commerce clause. We have both posted legal opinions by Scalia that are at the core of the commerce clause issue. I agree in principle, that the commerce clause has been abused to the point of negating some states rights. But not in the specific case under discussion. Again. Congress expanded the commerce clause to extend the prohibition of illicit drugs under one unified law called the CSA of 1970. SCOTUS agreed that it was valid and legal for Congress to engage in such action. I hope that satisfies your curiosity.

[Ken H]

Moreover, for compelling cultural and political reasons, the country at large will not embrace Congressional recognition of such an exception as to marijuana.

Questionable assertion, given that medical mj initiatives have passed by significant margins every time they've been put to a statewide vote, including many red States. That fact is in accordance with the following poll. It was commissioned by the mpp, but Mason-Dixon is a reputable pollster.

MASON-DIXON POLL ON MEDICAL MARIJUANA JUNE 2005

A random sample of 732 registered voters nationwide was interviewed by telephone June 8-11, 2005 by Mason-Dixon Polling & Research, Inc. of Washington, D.C.  Margin for error is plus or minus 3.7%. The survey was commissioned by the Marijuana Policy Project.  

65% of Americans say adults should be allowed to use marijuana for medical purposes if their doctor recommends it; only one in five says it should be illegal.  

Details @ mpp.org

[supercat]

I'm not sure what you mean by "it does not particularly expect that choice to be available to the listener/reader." . Does it seem reasonable that the Verse intended for both "instruction" and "silver" to be one of the choices? If not, why muddy the waters?

The issue in that case may be a quantitative one rather than qualitative: do not take/keep silver if so doing will reduce the amount of instruction you can receive. If you can manage to take silver without interfering one iota with your instruction, you may do so, but your instruction must receive higher priority than silver.

Viewed in this way, the implication might be that the listener will likely have to make a tradeoff between instruction and silver. In the event that a person had sufficient resources that giving up more silver would not increase the amount of instruction received, then keeping silver might be acceptable. But most people's resources wouldn't be that great.

[Rockingham]

Ask most of the country if they sanction teenage kids, or cops, bus and semi drivers, doctors, lawyers, airplane pilots, and other consequential people smoking marijuana, and the answer comes back as a resounding no.

The public does want to see potential medical benefits of smoked marijuana available, but in the limited cases of genuinely ill people with no other effective options. Even there, the case is transitory and will soon yield to drugs developed from research on marijuana.

Such drugs will not produce a high, but will satisfy the constituency for medical marijuana and provide genuinhe medical benefits far beyond anything that smoked marijuana can. As that happens, the advocates for recreational marijuana will lose the cover of medical marijuana and their associated initiatives and referenda strategy will fail.

Take a look at the following for a layman's review of some current developments in research on drugs derived from marijuana research. The next five to fifteen years will see such drugs coming on the market.

Can Marijuana Chemicals Make Good Medicine?

Nicholas Bakalar
for National Geographic News
October 13, 2005

Researchers are finding promising new evidence of the medicinal benefits of cannabinoids, the active ingredient in marijuana. But don't expect packages of pot to turn up on pharmacy shelves just yet.

Today a team of international researchers announced the discovery of CB2, the second cannabinoid receptor found in mammal brains.

Unlike the first receptor, discovered 15 years ago, CB2 activation reduces nausea without producing psychotropic side effects.

The new receptor is activated by endocannabinoids, which are cannabis-like chemicals produced in nerve cells and certain other cells in the body.

The team reports the findings in today's issue of the journal Science.

The Body's Own Cannabinoids

Cannabinoid receptors have been found in the brain, nervous system, spleen, thymus, and in various circulating immune cells.

Establishing the presence of the receptors in the brain involved a complex series of tests using ferrets. The researchers first found the gene for the receptor and looked to see whether the gene was "turned on" and creating the required proteins.

Molecular analysis demonstrated that the receptor was present on the ferrets' brainstem neurons. Other techniques allowed the researchers to see the consequences of activating the receptor, proving it works.

Keith A. Sharkey, the study's lead author, believes that the receptors will work the same way in humans as they do in ferrets.

He emphasizes, however, that this does not prove that smoking marijuana is a good treatment for nausea.

Drugs that originate outside the body, such as cannabinoids from smoked marijuana, "may not act at these receptors," said Sharkey, a professor of physiology and biophysics at the University of Calgary in Canada.

"Our work shows that it is the endogenous cannabinoids—the body's own chemicals—that can be targeted to these receptors."

Using the cannabinoids as a basis for therapeutic drugs is not a new idea. But Sharkey says that the recent findings demonstrate that cannabinoid drugs can be developed to target a specific region of the brain without unwanted side effects.

What does this mean for future cannabis-based drug development?

"I have every reason to imagine—and some insights—that the global pharmaceutical industry is busy working on these types of molecules to make potential therapeutics," he said.

"Our data would be supportive of these approaches for the treatment of any disorders that involve cannabinoid actions in the brain, and elsewhere too."

Making New Neurons

The receptor discovery is not the only good news for proponents of medical cannabinoids. The chemicals may relieve depression and anxiety and improve memory as well.

A study published online today by the Journal of Clinical Investigation reports that a synthetic cannabinoid promotes the growth of new neurons in a region of the brain called the hippocampus, which is associated with memory.

The finding that production of new neurons, or neurogenesis, can occur at all in the hippocampus is itself a relatively new discovery.

In rats the effect of cannabinoid is dramatic: Chronic high doses of the substance relieve anxiety and depression, a result attributable to the birth of new neurons.

Xia Zhang, an associate professor of psychiatry at the University of Saskatchewan and senior author on the paper, notes that the synthetic cannabinoid is about a hundred times as potent as the street drug tetrahydrocannibinol, or THC.

Still, he says, "these results indicate that smoking marijuana may also produce more neurons in the hippocampus" with similar beneficial results.

The synthetic chemical specifically targets cannabinoid receptors, while THC, the cannabinoid in smoked marijuana, targets other receptors as well.

The study did not specifically examine the issue of whether an increase in neurons would result in cognitive improvements. But according to Zhang, "more newborn neurons in the hippocampus would improve hippocampal-dependent learning and memory."

The finding raises an obvious question: Why is it that marijuana use, far from improving memory, is known for having the opposite effect?

"This is a question I've answered many times," Zhang said. "The acute use of marijuana or cannabinoids would definitely temporarily impair memory in both humans and animals.

"However, it is possible that chronic use of marijuana may improve memory once the newborn neurons in the hippocampus become mature, one or two months after they are born. We expect to do this experiment in the near future."