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.

[Rockingham]

It is a local matter -- and also a federal matter under the commerce clause.

No state can claim an exemption from federal law unless that law is otherwise void; and, in exercise of federal commerce clause power, Congress can and did properly find that the cultivation and sale of marijuana must be suppressed comprehensively. There is no "backyard sale" exemption for marijuana.

As for firearms, we have the Second Amendment as a direct limitation on Congressional power. Congress still has a limited power to regulate the trade in firearms, but not so as to violate the right to keep and bear arms.

[Reagan Man]

The point is obvious. The SCOTUS decision in Touby v USA was unanimous. OTOH. Roe v Wade is viewed as a bad decision by most conservatives and even some high profile liberals.

>>>>A dubious claim at best ...

Then you take a legal run at it and we'll see how far you get.

[Reagan Man]

Yes.

I cite Justice Scalia's concurring in the judgment of AG Gonzales v Raich, of June.6,2005.

"I agree with the Court's holding that the Controlled Substances Act (CSA) may validly be applied to respondents' cultivation, distribution, and possession of marijuana for personal, medicinal use."

"Since Perez v. United States, 402 U. S. 146 (1971), our cases have mechanically recited that the Commerce Clause permits congressional regulation of three categories: (1) the channels of interstate commerce; (2) the instrumentalities of interstate commerce, and persons or things in interstate commerce; and (3) activities that "substantially affect" interstate commerce.

[inquest]

All you've proven with those is that federal power is supreme, where federal power is constitutional. That still doesn't even come close to making your casee as to the constitutional (non-)limits of that power. The fact remains, it has clearly crossed the limit when it's regulating private transactions within a state. Otherwise, the commerce clause would have just said commerce, without any qualifiers about being among the several states, with the Indian tribes, etc.

[Ken H]

originalists and conservatives commonly turn to the Federalist Papers and Madison's Notes on the Constitutional Convention for further insight.

James Madison in Federalist No. 45:

"The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite."

Madison on the original intent of the power to regulate comerce among the several States:

"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,"

http://press-pubs.uchicago.edu/founders/documents/a1_8_3_commerces19.html

[antaresequity]

But to simply say that following the stated words of the Constitution is too inconvenient, therefore we'll just ignore them, is to disregard the whole point of having a Constitution.

Not to mention it renders the debate moot.

Whats the point of having a debate about the intent of the writers of a docuement, when the very words of the document are 'disregarded'....or am I missing somthing?

[Rockingham]

You have truncated the full text of Madison's letter, which supports my view, not yours. Madison saw the commerce clause power as a supreme federal power, with remedies for abuses belonging to the federal government, meaning Congress.

James Madison to Joseph C. Cabell
13 Feb. 1829Letters 4:14--15

For a like reason, I made no reference to the "power to regulate commerce among the several States." I always foresaw that difficulties might be started in relation to that power which could not be fully explained without recurring to views of it, which, however just, might give birth to specious though unsound objections. 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.

[Rockingham]

Your reasoning is unpersuasive because other evidence is decisively to the contrary 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. In addition, the Framers' drafting and debate on the Constitution did not involve detailed consideration of the specific term of the commerce clause power.

[supercat]

Currency? We were talking about narcotics.

My bad. In the case of narcotics, I would think that if someone buys and/or sells a large quantity of drugs without regard for where they came from or where they were going to, it would be hard to argue that one did not believe any of the drugs were likely to be involved in interstate commerce. On the other hand, if a guy who grows a few dozen plants sells one to another guy who has a script from an in-state doctor, I think the person could reasonably argue that he had no reason to believe interstate commerce with that plant was even remotely likely.

The question should be what the jury finds plausible.

[Ken H]

You have truncated the full text of Madison's letter, which supports my view, not yours.

Why would you say that? I agree that the power of Congress under I.8.3., where it properly applies, is the remedial power and it is supreme. Now, you completely ignored Mr. Madison on this point:

"rather than as a power to be used for the positive purposes of the General Government",

Do you think the "substantial effects" test from Wickard is consistent with the original intent of the Commerce Clause-- yes or no?

[Ken H]

You bolded the following from Madison's letter:

Being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it.

You do agree that he was making a distinction between the power to regulate foreign versus interstate commerce? (See Madison's first letter to Cabell re foreign nations).

Since the wording is the same, the extent of each power would be the same if they were taken literally. Madison is saying that such reasoning is specious and unsound.

[Rockingham]

We already went over Wickard and other cases ad nauseum in a previous thread a few months back. Let's not tread over that ground again.

[Rockingham]

Madison apparently always saw the federal powers over foreign commerce and over commerce among the states as coextensive and comprehensive. His reference to "specious and unsound" is to many of the arguments and issues that he feared would arise out of the federal power to regulate trade if the Constitution had complicated provisions and explanations on the matter.

In this, Madison was restating a central premise of the Framers that brevity in a Constitution is the ally of clarity and comprehension. The late rejected European Constitution and the British "unwritten" Constitution represent an opposite preference for detail, at the price of obscuring principles and undermining popular understanding.

[Ken H]

Let me quote you:

The expansive view of the Constitution that underlies the New Deal is contrary to original intent, but the cases that established it are settled law. --post #53

Of course, if scoundrels and fools are at the helm, even a properly ballasted and keeled ship can be wrecked -- which is what the New Deal and its judicial accomplices did to the Constitution.-- post #113

http://www.freerepublic.com/focus/f-news/1408730/posts

[Ken H]

Madison apparently always saw the federal powers over foreign commerce and over commerce among the states as coextensive and comprehensive.

Madison was saying the two powers were not coextensive:

"Being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it."

You have taken it literally, and Madison says that is unsound.

[Rockingham]

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. But the defect of the Constitution in not providing restraint on the federal commerce clause power resides in the document as they wrote it.

As the exercise of federal power under the commerce clause expanded through the late 19th and early 20th centuries for well-founded commercial reasons, the federal courts recognized the implications and developed the "dual federalism" doctrine as a check against the commerce clause becoming a general federal police power. Of course, the defect of the doctrine was that it was faithful to original intent but not to the express terms of the Constitution itself.

New Deal constitutional reasoning in part was a rejection of longstanding judge-made theories and doctrines like "dual federalism" and "substantive due process" and a federal "freedom of contract." There was a reasonable basis for those doctrines based on American history and faithfulness to the limited government envisioned by the Framers, but the doctrines are not well-grounded in the express terms of the Constitution.

Unfortunately, trying to revive old doctrines today in full is a fool's struggle because we cannot hope to unwrite the last seventy years of history and federal case law. We can though fashion new case law to limit federal power as opportunities to do so arise out of today's controversies.

Consistent textualism, for example, which is Scalia's preferred term for his brand of originalism, would put much of the Warren era case law in jeopardy. Justice Hugo Black, a dissenter from much of the Warren era cases, was a resolute textualist -- which was also the basis for many of the New Deal case opinions that he wrote or influenced.

As for the commerce clause, my preference going forward is to rework the federal preemption doctrine so as to provide a counterweight to expansive readings of the commerce clause, with results similar to some of the dual federalism cases. More important, as the federal welfare state unravels in the coming decades, we must try to find ways to reestablish limits on federal power using new laws and Constitutional amendments.

De facto Marijuana legalization by judicial decree is not on the menu though -- or at least not in my view.

[Rockingham]

The point of a Constitution is that it is supposed to be taken literally; and Madison concluded that the remedy for excessive use of the federal commerce power was, in effect, Congress.

The larger issue is what Madison would make of today's use of the federal commerce clause. I think that most of it he would see as commendable or at least debatable, much of it profoundly unwise and wrong, but I do not think Madison would call the current application of the commerce clause unconstitutional. As to what he disapproved of, Madison would mostly wonder what had happened to Congress and the people.

[Ken H]

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.

Such as the Great Society and various gun bans.

There was a reasonable basis for those doctrines based on American history and faithfulness to the limited government envisioned by the Framers, but the doctrines are not well-grounded in the express terms of the Constitution.

Then the scoundrels and fools in the New Deal era made a wreck of the Constitution, according to you. I believe you applied those terms to judicial accomplices in favor of Wickard.

[Zon]

Read the whole thread ... it's depressing how many people disagree and yet consider themselves "conservative."

Look at the poll and you'll see that the vast majority of people understand the plain meaning of the commerce clause.

No
85.2% 

Undecided/Pass
8.4% 

Yes
6.5% 

Most of the naysayers' arguments have irrational premises. If the founders meant for government to regulate (ie, control) commerce the U.S. would not have been a representative republic, It would have been fascism, socialism or communism. The word "regulate" in the founders days often meant "to make regular uniform". Thus identifies their original intent. .To make regular/uniform, not control. What percentage of the people posting on this thread have arguments based on irrational premise? 

Assume a similar poll result from people educated about the commerce clause. Politicians live by hoodwinking their constituents to suit their own agenda, not representing them. That's why they're parasites.