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.

[Zon]

The arguments you just put forth, similar arguments can be made to justify the vast majority of laws. Almost all of them are arguments premised on the rationalization that people will run society running headlong into destruction.

Not only has the justice system failed, so has the legislative. Legislators, the media and educators tell us that if not for each years new laws people and society would run head long into destruction. Clinton's two terms created 3,000 new laws and regulations each year -- 24,000 new laws.

Question, how is it that the people and society didn't self-destruct prior to the 1990's or 1890's? Not to mention how it is that people and society are not now self-destructing without the new laws and regulations to come over the next five, ten, fifteen years? Apparently the above mentioned parasitical elites would have us believe that people and society are constantly on the tipping point of self destruction. In reality people and society increasingly prospered, moving away from destruction.

Virtually every person breaks the law a few times each year. If every lawbreaker, that's virtually all of society, could be apprehended next week, society would run headlong into destruction. Yet with all those lawbreakers running lose society is not in danger of self-destruction.

[chudogg]

"I think we should temper our Interstate Commerce juresprudence" - Justice Thomas (or something to that effect)

[Rockingham]

You are trying to define away the problems of drug use and drug dealing by claiming that the law is the problem instead of the destructiveness of drug-taking and the behaviors associated with them.

Assume, for purposes of discussion, that all illegal drugs were legal, cheap, and easily available, would you willingly live among coke and heroin addicts, PCP heads, and meth users?

Would you permit your children to take up drugs? If not, would you forbid them to associate with drug users? How would you enforce any such a ban as a parent? Would you expect the help of others or the state in such an effort?

Of course, your vision of a radically libertarian but oddly law abiding and well-behaved society is a fantasy as much as Erewhon or Utopia. Americans have never adopted a full drug legalization program by vote.

The closest examples are corrupt and lawless Indian reservations, which are squalid and miserable places with the many pathologies of drug abuse in full bloom. They are not a recommendation for the program that you urge.

[Zon]

What do you do for the kid who wonders why his father tells him to piss off through a cloud of smoke bear belch on many evenings? Or is glassy eyed and barely responsive? Or who just acts odd and has trouble working because of damage done long ago by drug alcohol use [or obesity from poor diet and lack of exercise]?

What about the doctor who operates with a [alcohol] buzz on? The pilot who flies that way? What about the costs for hospitalization and institutionalization of those who are schizophrenic and psychotic due to marijuana or other drugs [alcohol, caffeine, PMS]? In such cases private causes of action are a poor or useless remedy even if a solvent, deep pocket defendant is within reach.

Besides the fact that 9 of 10 juries would find that the defendant did not harm you by his act of using drugs in his home and, if the judge didn't dismiss the case as frivolous. what you're saying apparently is that the government's response to a victim is, "tough luck there buddy, you were a victim, get over it. But us government officials will spend a tom of money to convict and incarcerate the person while you get nothing. But we'll take your tax dollars and use them to convict and incarcerate they guy."

Why wouldn't drug dealers just operate in the shadows beyond view of the law 

Because the person that was supposedly harmed by the act of a person across the street using or selling drugs in their home, the supposed criminal would have to be in contact with his victim, who is across the street, to cause the harm. The tort law says if you harm a person you pay restitution. The supposed victim has to prove she was harmed by the guy while he was across the street minding his own business.

[Rockingham]

To make the point that there are too many laws and too many of the wrong kind does not provide a persuasive argument against any single law or against anti-drug laws as a group. There is no general remedy against the ills of the world and human folly and perversity. Things can be made better or worse depending on the choices we make, but radically fewer laws is implausible except by making the case against them on the particulars .

[Rockingham]

The problem is not the drunk or drug user in isolation, it is their effect on their families, immediate associates, and society in general. Again, if drug use is so harmless, why do most people who can do so flee places where drug users are common?

Even to the degree that drugs and alcohol simply liberate, they liberate both the good and the bad in human nature. The immediate effects of alcohol are more transitory than illegal drugs, but who with a lick of sense would chose to be raised by or otherwise live among either alcoholics or drug users?

[Zon]

If Jefferson and the founders sought to tyranny of the majority they would have created a democracy rather than a constitutional representative republic.

The last few sentences of Jefferson's letter to Cartwright are also noteworthy:

"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."

[Ken H]

To me, that makes sense only if several means not "interstate" or "between the states" but as reference to the states as a whole, which I what I took Madison's meaning to be.

Marshall in Gibbons:

The subject to which the power is next applied, is to commerce "among the several States."[ ]Comprehensive as the word "among" is, it may very properly be restricted to that commerce which concerns more States than one.

[MistrX]

Who cares?

[Mojave]

"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."

Exactly so. The law has matured.

[Zon]

To make the point that there are too many laws and too many of the wrong kind does not provide a persuasive argument against any single law or against anti-drug laws as a group.

I defined they difference between valid law and bogus law. In other words, the validity of a law, or lack there of is premised on the likelihood that a person could claim and prove they were harmed by a person's actions. For example, people have proved that they were harmed due to a person's  act of divining with excessive speed and people have proved they were harmed by a person act of driving while intoxicated.. Conversely, no person has proved they were harmed by a person's act of possessing drugs in their own home. 

This amendment to the constitution:

Article 1

No person, group of persons, or government shall initiate force, threat of force, or fraud against any individual's self, property, or contract. 

Article 2

Force is morally-and-legally justified only for protection from those who violate Article 1. 

Article 3

No exceptions shall exist for Articles 1 and 2.

Aria #1

[Mojave]

"The voluntary support of laws, formed by persons of their own choice, distinguishes peculiarly the minds capable of self-government. The contrary spirit is anarchy, which of necessity produces despotism." --Thomas Jefferson to Philadelphia Citizens, 1809.

[Mojave]

Let's re-phrase the Marijuana Policy Project's biased survey question: "Do you think adults and children should be allowed to legally use marijuana for medical purposes if their doctor recommends it?"

Or: "Do you think children should be allowed to legally use marijuana for medical purposes if their school nurse recommends it?"

[Rockingham]

Gibbons v. Ogden is a lengthy opinion that both vindicated the federal power over commerce as supreme and included language that asserted that purely intrastate commerce as exempt from federal power. A small residue of that exemption continues today, but the more fundamental problem with Gibbons as authority is that it was not a test of just how far the federal power over commerce goes. The true stopping point comes when the Court says no consistently, not when it says yes.

As I have already contended in detail, the commerce power by its nature is as supreme as necessity requires. The few cases in which the Supreme Court said no further were on specific grounds that were not especially coherent as a legal doctrine. Like some newly discovered rare species of rain forest insect menaced by Amazonian bulldozers, about the time scholars recognized the "dual federalism" cases as a doctrine of sorts, the New Deal's expansion of federal power overwhelmed it.

Here's another passage from Gibbons that indicates just how protean and compelling the federal power over commerce was seen to be by Marshall and his contemporaries:

"the people intended, in establishing the constitution, to transfer, from the several States to a general government, those high and important powers over commerce, which, in their exercise, were to maintain an uniform and general system. From the very nature of the case, these powers must be exclusive; that is, the higher branches of commercial regulation must be exclusively committed to a single hand. What is it that is to be regulated? Not the commerce of the several States, respectively, but the commerce of the United States. Henceforth, the commerce of the States was to be an unit; and the system by which it was to exist and be governed, must necessarily be complete, entire, and uniform."

That can leave some matters as purely intrastate commerce beyond the power of the commerce clause, but, in the end, Gibbons and almost every other Supreme Court commerce clause case for more than two hundred years has ruled in favor of federal power, not against it. Language about purely intrastate commerce being beyond federal power have consistently been little more than kind words of consolation to the losing side.

[Rockingham]

So, the guy dealing drugs to your kid in middle school gets the protection of a new constitutional right, and you go to jail if grab your kid by the arm and haul him away from an incipient drug transaction?

[Zon]

You really, pull some wild ones out. The parent is the guardian and right to protect his or her child. My educated guess is that the parent very well may take the drug dealer or liquor store owner to court and do their best to convince and impartial jury that the alcohol or drug dealer threatened harm to their child. Who knows what a jury would decide. Your rhetoric implies it would side with the plaintiff.

You're a hoot!

[Senator Bedfellow]

As a duly designated representative of the Process Servers Association of America, let me just say that your proposal has our full support.

[Ken H]

Fascinating.

Now back to my point.

You wrote: To me, that makes sense only if several means not "interstate" or "between the states" but as reference to the states as a whole, which I what I took Madison's meaning to be.

Marshall wrote: The subject to which the power is next applied, is to commerce "among the several States." [ ] Comprehensive as the word "among" is, it may very properly be restricted to that commerce which concerns more States than one.

Am I mistaken, or are you and Marshall at odds over the meaning of "among the several States"?

[Rockingham]

Here's the core of your proposed amendment:

Article 1

No person, group of persons, or government shall initiate force, threat of force, or fraud against any individual's self, property, or contract.

It sounds to me like "person" would includes a parent, and "individual" would include a child, and, with your preference for legalizing drugs, "contract" would include a drug deal. On what basis could a parent lawfully protect their child by using force against the will of a child to make a lawful purchase?

[Rockingham]

My point was as to Madison's usage of the phrase "several states" in a letter, which I took as a reference to the states as a whole. Obviously, as the term "several states" is used in the commerce clause, the term is about commerce, with the scope of the federal power undefined. Marshall's holding in Gibbons v. Ogden was in favor of federal power, as have been virtually all commerce clause cases in the Supreme Court in spite of the loser's consolation of kind words about intrastate commerce as being beyond federal power. One may enjoy the show of the game, but who wins and who loses determines what the law is.