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.

[mugs99]

I believe the Black Robed Deities have suspended the Constitution.
.

[NonValueAdded]

I see two separate issues there.

[Wolfhound777]

I believe the Black Robed Deities have suspended the Constitution.

I believe that you are correct. We can also add the other two branches of government to the list as well.

[Atlas Sneezed]

It must make the drug warriors squirm to have to answer this with the gun issue involved.

[inquest]

That's the impression I get, too.

[Know your rights]

Hell, no!

[Atlas Sneezed]

I see two separate issues there.

---

How are they different? Which one is authorized for federal regulation by the Constitution and which is not?

[kublia khan]

A strict interpretation would leave drug enforcement exclusively to the states, gun control would also be a state issue as long as it did not conflict with the second amendment

[Rockingham]

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.

[inquest]

The commerce clause is a more complicated issue than many conservatives realize or are willing to accept.

The commerce clause itself isn't that complicated. It's the courts that have misrepresented it as being far more complicated than it needs to be. Recognition of that fundamental fact has to be the basis for any further discussion on the issue.

[Rockingham]

I am an adamant originalist, but even if two centuries of case law were tossed aside as to the commerce clause, originalism yields little in the way of useful decisional principles for today's controversies.

The world of the Framers was a world without electricity or motor vehicles and with roads so wretched that moving people or substantial cargo more than a few miles was a matter of water transport. The commerce clause was originally applied to prohibit state tolls and barriers to interstate commerce and to empower federal regulation and protection of the waterborne commerce of the day. Do you propose to limit the commerce clause to that alone -- or do you mean it to apply to commerce broadly as the Framers intended?

Today, due to modern communications and transportation, commerce no longer can be easily distinguished between interstate and intrastate aspects. When anything and everything is or can be in interstate commerce, how do draw factually valid distinctions between interstate and intrastate commerce?

The results that you want -- that some things are beyond the reach of federal power -- is better sought through the means that I suggest: a case by case approach under federal preemption law that finds some things beyond the federal commerce power based on revived "dual federalism" reasoning. My take is that guns in schools are a local matter, but marijuana can be suppressed by the federal government based on the commerce clause. On different reasoning, that is consistent with the two most recent Supreme Court commerce clause decisions.

Specifically, where do you find fault with my analysis, either here or in my earlier post?

[counterpunch]

They haven't suspended it. They have exiled it.

[inquest]

Today, due to modern communications and transportation, commerce no longer can be easily distinguished between interstate and intrastate aspects.

Example of what you mean by this? And regardless, if modern conditions make it impossible to govern to the satisfaction of the people while adhering to the Constitution, there's an amendment process. 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.

When anything and everything is or can be in interstate commerce, how do draw factually valid distinctions between interstate and intrastate commerce?

Anything and everything? I go down to the local gun shop and buy a gun. Not insterstate commerce. Not in 1788. Not in 2005.

[Rockingham]

A telephone call, email, or Internet web page may go through a single state or a dozen states. Without expert investigation and access to restricted and ephemeral information, it is impossible to tell.

In your view of the commerce clause, could a state tax or regulate the charges and terms of intrastate only telephone calls, emails, and web postings? How could one hope to tell if such a law was being adhered to when there are billions or trillions of telephone calls, web pages, emails, and similar communications a year?

Similar problems develop with almost any item or service in commerce today. Unless there is a uniform national standard, interstate commerce in it is burdened and beset with operational complications that make trade in it impossible or much more expensive.

Consequently, the trend of modern business is to prefer one national standard and authority instead of fifty or more different ones. The public benefits because goods and services cost less and are of higher quality and more available. Similarly, states benefit because their economies are larger and more robust.

As for your gun, it was almost certainly manufactured out of state. Hence, the gun itself is within the definition of interstate commerce and would be under a strict sense of the commerce clause; and the manufacturer likely wants the federal government to exercise the commerce clause power to block a large class of gun liability tort claims.

Take that gun near a school though, and I will agree that is not a matter for the federal commerce clause because it falls within the traditional concept of state and local police powers.

[Ken H]

Latest result, Member Opinion:

No 84.7% 607
Undecided/Pass 11.0% 79
Yes 4.3% 31

http://www.freerepublic.com/perl/poll?poll=124

Vote early and often!

[Reagan Man]

Not all inanimate objects are created equal.

Drug use/abuse isn't the same as the RKBA.

>>>>Do you think the interstate commerce clause of the Constitution authorizes federal laws against narcotics and firearms?

Narcotics = Yes.

Firearms = NO!

The Controlled Substances Act of 1970 is the law of the land. The 1991 SCOTUS decision in Touby v USA was unanimous and upheld the CSA.

Congress can legislate under the Commerce Clause. The ONLY issue was one of delegation, can Congress delegate it's legislative authority to an executive-branch agency. Again, under fairly settled law, Congress can so long as it limits the discretion of the agency and provides the overall structure/guidance to the agency in the grant of delegation, and so long as the agency follows established principles of administrative law (due process, review and comment, etc).

[supercat]

The commerce clause itself isn't that complicated. It's the courts that have misrepresented it as being far more complicated than it needs to be. Recognition of that fundamental fact has to be the basis for any further discussion on the issue.

One major problem is that the government refuses to tell juries of their rights and responsibilities. Although it's fine to have legal standards that suggest that, e.g., possession of more than a certain amount of a certain drug creates a presumption that the possessor intended to distribute it, it should be the job of the jury to determine whether such presumptions are applicable in a case before them, or whether other evidence by the defendant shows it not to be.

For example, there are legal standards that specify that if someone prints something that looks like U.S. currency, it must either differ in size by a certain amount, or be in black and white only, or various other things. Suppose someone was found with a quantity of phony banknotes that were smaller than real ones, but not by quite 'enough' for the legal standard, and which combined fronts and backs of different denominations (e.g. a $20 front on a $5 back). The person claimed to have been shooting a commercial about "Don't burn all your money on heating costs", and wanted to have something that would look good for the camera (while being cheaper than--and probably burning better than--real currency). The person had a script and storyboards drawn for the proposed commercial, and worked as a bona fide ad producer.

Should a jury convict the person of large-scale counterfeiting in such a case, or should a jury look at the facts and decide, regardless of the standards for how big the bills should be, that the guy was obviously not trying to create bogus money for fraudulent purposes?

Having rules and standards is often useful in promoting justice. But the rules should be seen and used as a means of promoting justice, rather than as an end unto themselves.

[indianrightwinger]

Exactly.

My view:

Firearms are protected by the 2nd amendment, which trumps any other tyrannical government measures.

Drugs are a reasonably subject to inter-state commerce rules imposed by the Federal government, but only as long as the regulations and laws to prevent drugs are limited to truly interstate commerce issues.

[Skywalk]

Agreed, but if an amendment was needed to ban alcohol, they certainly need one to ban drugs.

Regulating some aspect of commerce? I can buy that.

Banning and CRIMINALIZING? I do not see that authority in the Constitution.