Posted on 05/10/2006 7:31:03 AM PDT by cryptical
America's war on drugs is actually a Raid on Taxpayers. The war costs an estimated $70 billion a year to prosecute, and the drugs keep pouring in. But while the War on Drugs may have failed its official mission, it is a great success as a job-creation program. Thousands of drug agents, police, detectives, prosecutors, judges, anti-drug activists, prison guards and their support staffs can thank the program for their daily bread and health benefits.
The American people are clearly not ready to decriminalize cocaine, heroine or other hard drugs, but they're well on their way to easing up on marijuana. A Zogby poll found that nearly half of Americans now want pot legal and regulated, like alcohol. Few buy into the "demon drug" propaganda anymore, and for a simple reason: Several countries have decriminalized marijuana with little effect on public health.
Americans could save a ton of money doing the same. The taxpayers spend almost $8 billion a year enforcing the ban on marijuana, according to a report by visiting Harvard economist Jeffrey A. Miron. State and local governments consume about $5 billion of the total.
The war on pot fills our jails. America arrests 755,000 people every year for marijuana infractions -- the vast majority for possession, not dealing. An estimated 80,000 people now sit behind bars on marijuana offenses.
The Bush administration stoutly supports the campaign against marijuana, which others think is crazy. Compare the Canadian and American approach to medical marijuana: The Canadian Postal Service delivers it right into the mailboxes of Canadian cancer patients. The U.S. Justice Department invades the patients' backyards and rips out cannabis plants, even those grown with a state's blessing.
The Bush administration isn't going to last forever, nor is the patience of Americans paying for and suffering under the ludicrous war on marijuana. Surely letting sick people smoke marijuana to ease their discomfort -- 11 states have approved such, including Rhode Island -- would be a good start for a more enlightened drug policy.
For the drug warriors, however, this toe in the water seems a foot in the door for eventual decriminalization of pot. That's understandable. Relaxing the rules on marijuana would greatly reduce the need for their services.
Remember the Supreme Court case two years ago, when Justice Stephen Breyer innocently suggested that the federal Food and Drug Administration be asked to rule on whether marijuana had an accepted medical use? Well, the FDA has just ruled. In a total lie, the FDA said that no scientific studies back the use of marijuana for medical purposes. Actually, the prestigious Institute of Medicine issued its findings in 1999 that marijuana helped patients for pain and for the relief of nausea and vomiting caused by chemotherapy.
The federal government "loves to ignore our report," John Benson, a professor of medicine at the University of Nebraska and co-chairman of the committee that wrote the Institute of Medicine" study, said after the FDA issued its "advisory."
The Drug Enforcement Administration, which feeds off the drug war, plays a big part in stopping this and all future efforts to reach educated opinions on marijuana. Lyle Craker, a University of Massachusetts authority on medicinal plants, wanted to grow marijuana for the purpose of evaluating its possible medical uses. The DEA said no, insisting that he use marijuana from a University of Mississippi lab. The DEA knows full well that the UMiss pot is low-quality and therefore useless for study.
The drug warriors' incentive to keep the game going is pretty obvious. But what's in it for taxpayers?
Miron's Harvard study looked beyond what the public pays to enforce the marijuana laws. It also investigated how much money would roll in if marijuana were legal and taxed like alcohol. The answer was over $6 billion in annual tax revenues. Do the math: If government stopped outlawing marijuana and started taxing it, its coffers would be $14 billion richer every year.
We could use that money. For example, $14 billion could pay for all the anti-terrorism port-security measures required in the Maritime Transportation Security Act of 2002.
More than 500 economists of every political stripe have endorsed the Miron study. Growing numbers of Americans are beginning to agree with them: The war against marijuana is an expensive failure -- and pointless, too.
Froma Harrop is a Journal editorial writer and syndicated columnist. She may be reached by e-mail at: fharrop@projo.com.
Then delete my post and I'll repost it with the height/width IMG SRC parameters in their correct slots.
In other words and in the language of rehabilitation, the current liberal programs and regulations are enablers that keep a sick society from reaching bottom so that it faces its ills with real and legitimate solutions that do not create more problems in other areas than they solve in the areas intended.
BTW, I'll take the public Madison and toss the other on the ash heap of history. No more contradiction.
Your post needs editing. Feel free.
Riddle me this - Does the New Deal commerce clause compromise the architectural integrity of the Republic, as laid out in the Constitution? If so, how important should maintaining that integrity be considered as providing for the general welfare?
First sensible thing you've said on this thread.
==
You're still clueless.
Of course, the power to regulate commerce is the power to prescribe conditions and rules for the carrying-on of commercial transactions, the keeping-free of channels of commerce, the regulating of prices and terms of sale. Even if the clause granted only this power, the scope would be wide, but it extends to include many more purposes than these. ''Congress can certainly regulate interstate commerce to the extent of forbidding and punishing the use of such commerce as an agency to promote immorality, dishonesty, or the spread of any evil or harm to the people of other states from the state of origin. In doing this, it is merely exercising the police power, for the benefit of the public, within the field of interstate commerce. - Brooks v. United States, 267 U.S. 432, 436 -437 (1925)Case law pertainent to stare decisis respecting the Commerce clause:
Prior to reconsideration of the federal commerce power in the 1930s, the Court in effect followed a doctrine of ''dual federalism,'' under which Congress' power to regulate much activity depended on whether it had a ''direct'' rather than an ''indirect'' effect on interstate commerce. When the restrictive interpretation was swept away during and after the New Deal, the question of federalism limits respecting congressional regulation of private activities became moot. However, the States did in a number of instances engage in commercial activities that would be regulated by federal legislation if the enterprise were privately owned; the Court easily sustained application of federal law to these state proprietary activities, e.g., California v. United States, 320 U.S. 577 (1944); California v. Taylor, 353 U.S. 553 (1957). However, as Congress began to extend regulation to state governmental activities, the judicial response was inconsistent and wavering. For example, federal regulation of the wages and hours of certain state and local governmental employees has alternatively been upheld and invalidated. See Maryland v. Wirtz, 392 U.S. 183 (1968), overruled in National League of Cities v. Usery, 426 U.S. 833 (1976), overruled in Garcia v. San Antonio Metropolitan Transit Auth., 469 U.S. 528 (1985).
While the Court may shift again to constrain federal power on federalism grounds, at the present time the rule is that Congress lacks authority under the commerce clause to regulate the States as States in some circumstances, when the federal statutory provisions reach only the States and do not bring the States under laws of general applicability (New York v. United States, 112 S.Ct. 2408 (1992), the supremacy clause and the Tenth Amendment).
From Gibbons:
The object of inspection laws, is to improve the quality of articles produced by the labour of a country; to fit them for exportation; or, it may be, for domestic use. They act upon the subject before it becomes an article of foreign commerce, or of commerce among the States, and prepare it for that purpose. They form a portion of that immense mass of legislation, which embraces everything within the territory of a State, not surrendered to the general government: all which can be most advantageously exercised by the States themselves.
Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c., are component parts of this mass.
No direct general power over these objects is granted to Congress; and, consequently, they remain subject to State legislation .
_______________________________
Simple question: Do you think Wickard and its progeny are consistent with Marshall's opinion in Gibbons?
origination of Dormant Commerce Clause; state regulation not repugnant to Congressional power of regulation of commerce (absent Congressional action)
The Blackbird Creek Marsh dam was authorized as a local health and property value measure by the State of Delaware. Now, because Blackbird Creek was a navigable creek connected to coastal waters, opponents argued that the dam was an unconstitutional blockage of interstate commerce.
Marshall rejected this because Congress had passed no legislation to affect that question,-- ie, the Commerce Clause was in its dormant state. He also said that if Congress had indeed passed such legislation, then he would have had no problem declaring the dam unconstitutional.
Delaware was legitimately exercising its retained power (health, local property regulation-- see Gibbons). And because Congress was dormant, the Court held the law was not repugnant to the Constitution
Do you agree with my summary? If so, where does Willson provide stare decisis to Wickard?
Based on these two cases, how do you think Marshall would have voted in Raich-- with Thomas and Rehnquist; or with Ginsberg, Scalia, Souter, et al? And please explain why.
[omitted for brevity]
Hence the reach of that power extends to those intrastate activities which in a substantial way interfere with or obstruct the exercise of the granted power.' US v. Wrightwood Dairy Co., 315 U.S. 110, 119 , 62 S.Ct. 523, 526. 124 - Wickard @ 124
The Act includes a definition of market and its derivatives so that as related to wheat in addition to its conventional meaning it also means to dispose of by feeding (in any form) to poultry or livestock which, or the products of which, are sold, bartered, or exchanged, or to be so disposed of. Hence, marketing quotas not only embrace all that may be sold without penalty but also what may be consumed on the premises. Wheat produced on excess acreage is designated as available for marketing as so defined and the penalty is imposed thereon. Penalties do not depend upon whether any part of the wheat either within or without the quota is sold or intended to be sold. The sum of this is that the Federal Government fixes a quota including all that the farmer may harvest for sale or for his own farm needs, and declares that wheat produced on excess acreage may neither be disposed of nor used except upon payment of the penalty or except it is stored as required by the Act or delivered to the Secretary of Agriculture. - WICKARD @ 118,119
The Government's concern lest the Act be held to be a regulation of production or consumption rather than of marketing is attributable to a few dicta and decisions of this Court which might be understood to lay it down that activities such as production, manufacturing, and mining are strictly local and, except in special circumstances which are not present here, cannot be regulated under the commerce power because their effects upon interstate commerce are, as matter of law, only indirect. Even today, when this power has been held to have great latitude, there is no decision of this Court that such activities may be regulated where no part of the product is intended for interstate commerce or intermingled with the subjects thereof. We believe that a review of the course of decision under the Commerce Clause will make plain, however, that questions of the power of Congress are not to be decided by reference to any formula which would give controlling force to nomenclature such as production and indirect and foreclose consideration of the actual effects of the activity in question upon interstate commerce. (Wickard @ 119,120)
in Gibbons v. Ogden, Chief Justice Marshall observed that the phrase "among the several States" was "not one which would probably have been selected to indicate the completely interior traffic of a state." It must therefore have been selected to demark "the exclusively internal commerce of a state." While, of course, the phrase "may very properly be restricted to that commerce which concerns more states than one," it is obvious that "[c]ommerce among the states, cannot stop at the exterior boundary line of each state, but may be introduced into the interior." The Chief Justice then succinctly stated the rule, which, though restricted in some periods, continues to govern the interpretation of the clause. "The genius and character of the whole government seem to be, that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the states generally; but not to those which are completely within a particular state, which do not affect other states, and with which it is not necessary to interfere, for the purpose of executing some of the general powers of the government."
(see: 9 Wheat @193-198 - beginning with "To what commerce does this power extend?" thru "In support of this argument, it is said, that they possessed it as an inseparable attribute of sovereignty, before the formation of the constitution, and still retain it, except so far as they have surrendered it by that instrument; that this principle results from the nature of the government, and is secured by the tenth amendment; that an affirmative grant of power is not exclusive, unless in its own nature it be such that the continued exercise of it by the former possessor is inconsistent with the grant, and that this is not of that description.")
Recognition of an exclusively internal commerce of a State, or "intrastate commerce" in today's terms, was at times regarded as setting out an area of state concern that Congress was precluded from reaching. While these cases seemingly visualized Congress' power arising only when there was an actual crossing of state boundaries, this view ignored the Marshall's equation of intrastate commerce, which affects other states or with which it is necessary to interfere in order to effectuate congressional power, with those actions that are purely interstate. This equation came back into its own, both with the Court's stress on the current of commerce bringing each element in the current within Congress' regulatory power, with the emphasis on the interrelationships of industrial production to interstate commerce but especially with the emphasis that even minor transactions have an effect on interstate commerce (NLRB v. Fainblatt, 306 U.S. 601 (1939); Kirschbaum v. Walling, 316 U.S. 517 (1942); United States v. Wrightwood Dairy Co., 315 U.S. 110 (1942); Wickard v. Filburn, 317 U.S. 111 (1942); NLRB v. Reliance Fuel Oil Co., 371 U.S. 224 (1963); Katzenbach v. McClung, 379 U.S. 294 (1964); Maryland v. Wirtz, 392 U.S. 183 (1968); McLain v. Real Estate Bd., 444 U.S. 232, 241-243 (1980); Hodel v. Virginia Surface Mining & Reclamation Assn., 452 U.S. 264 (1981).
Moreover, the cumulative effect of many minor transactions with no separate effect on interstate commerce, when they are viewed as a class, may be sufficient to merit congressional regulation:
Stoutenburgh v. Hennick, 129 U.S. 141 (1889); Atlantic Cleaners & Dyers v. United States, 286 U.S. 427 (1932); In re Bryant, 4 Fed. Cas. 514 (No. 2067) (D. Oreg. 1865). Transportation between two points in the same State, when a part of the route is a loop outside the State, is interstate commerce. Hanley v. Kansas City Southern Ry. Co., 187 U.S. 617 (1903); Western Union Telegraph Co. v. Speight, 254 U.S. 17 (1920). But such a deviation cannot be solely for the purpose of evading a tax or regulation in order to be exempt from the State's reach. Greyhound Lines v. Mealey, 334 U.S. 653, 660 (1948); Eichholz v. Public Service Comm., 306 U.S. 268, 274 (1939). Red cap services performed at a transfer point within the State of departure but in conjunction with an interstate trip are reachable. New York, N.H. & N.R. Co. v. Nothnagle, 346 U.S. 128 (1953).
The effect of consumption of homegrown wheat on interstate commerce is due to the fact that it constitutes the most variable factor in the disappearance of the wheat crop. Consumption on the farm where grown appears to vary in an amount greater than 20 per cent of average production. The total amount of wheat consumed as food varies but relatively little, and use as seed is relatively constant. - Wickard @ 127
"The parties have stipulated a summary of the economics of the wheat industry. Commerce among the states in wheat is large and important. Although wheat is raised in every state but one, production in most states is not equal to consumption. Sixteen states on average have had a surplus of wheat above their own requirements for feed, seed, and food. Thirty-two states and the District of Columbia, where production has been below consumption, have looked to these surplus-producing states for their supply as well as for wheat for export and carryover.
The wheat industry has been a problem industry for some years. Largely as a result of increased foreign production and import restrictions, annual exports of wheat and flour from the United States during the ten-year period ending in 1940 averaged less than 10 per cent of total production, while during the 1920's they averaged more than 25 per cent. The decline in the export trade has left a large surplus in production which in connection with an abnormally large supply of wheat and other grains in recent years caused congestion in a number of markets; tied up railroad cars; and caused elevators in some instances to turn away grains, and railroads to institute embargoes to prevent further congestion." - Wickard @ 125
In the absence of regulation the price of wheat in the United States would be much affected by world conditions. During 1941 producers who cooperated with the Agricultural Adjustment program received an average price on the farm of about $1.16 a bushel as compared with the world market price of 40 cents a bushel. - Wickard @ 126
"The maintenance by government regulation of a price for wheat undoubtedly can be accomplished as effectively by sustaining or increasing the demand as by limiting the supply. The effect of the statute before us is to restrict the amount which may be produced for market and the extent as well to which one may forestall resort to the market by producing to meet his own needs. That appellee's own contribution to the demand for wheat may be trivial by itself is not enough to remove him from the [317 U.S. 111, 128] scope of federal regulation where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial.
It is well established by decisions of this Court that the power to regulate commerce includes the power to regulate the prices at which commodities in that commerce are dealt in and practices affecting such prices. One of the primary purposes of the Act in question was to increase the market price of wheat and to that end to limit the volume thereof that could affect the market. It can hardly be denied that a factor of such volume and variability as home-consumed wheat would have a substantial influence on price and market conditions. This may arise because being in marketable condition such wheat overhangs the market and if induced by rising prices tends to flow into the market and check price increases. But if we assume that it is never marketed, it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce. The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon. This record leaves us in no doubt that Congress may properly have considered that wheat consumed on the farm where grown if wholly outside the scheme of regulation would have a substantial effect in defeating and obstructing its purpose to stimulate trade therein at increased prices.
It is said, however, that this Act, forcing some farmers into the market to buy what they could provide for themselves, is an unfair promotion of the markets and prices of specializing wheat growers. It is of the essence of regulation that it lays a restraining hand on the selfinterest of the regulated and that advantages from the regulation commonly fall to others. The conflicts of economic interest between the regulated and those who advantage by it are wisely left under our system to resolution by the Congress under its more flexible and responsible legislative process. 29 Such conflicts rarely lend themselves to judicial determination. And with the wisdom, workability, or fairness, of the plan of regulation we have nothing to do." - Wickard @ 127-129
I believe with the foregoing the answer to the question of if Wickard is based on Marshall's opinion in 9 Wheat is a resounding YES!. I don't think its a question of Constitutionality, in that can a Ferrari drive 155 MPH? The more salient question is should Congress regulate commerce to the degree that they are. The biggest problem I have with this are the price-fixing aspects of the commerce regulation. To a free-market economist this would be utter anathema.
Actually, I believe Pot is America's #2 cash crop - right behind either wheat or corn....
Wilson?
You could be right.
Providing for the general safety of the public (through regulation of commerce of potentially societally harmful substances is entirely Constitutional).
Nothing in the Constitution supports this theory. -- The opposite is supported, -- an individual person is not to be deprived of life, liberty, or property without due process of law.
-- Fiat prohibitions on supposedly 'unsafe' items of commerce infringe on those rights both in the enactment of such 'laws', -- and in their enforcement.
I guess what's being argued is just what is the purpose of the enumerated powers of the Constitution.
You "guess" because you can't refute the clear words of the 9th, 10th & 14th Amendments.
If the General Welfare clause and the Commerce clause are blank checks --
Obviously, they are not. Both are restrained by due process of law considerations for our rights to liberty.
-- Your last few posts do not show us any governmental power to prohibit "potentially societally harmful" items of commerce.
[No such power has ever been constitutionally delegated to any level of government]
-- They only show us a much abused power to regulate, and the 'legal' excuses made to justify such infringements on our liberties.
You cited it under this heading:
Case law pertainent to stare decisis respecting the Commerce clause:
Id., WILLSON v. BLACK-BIRD CREEK MARSH CO., 27 U.S. 245 (1829):
Marshall was charting new territory in commerce clause jurisprudence. So yes, he ruled that commerce encompassed navigation, and that Congress's power over commerce among the States extended beyond State boundaries; and that when the powers collide, Congress prevails over the State.
But Marshall also set down limits to this power as I quoted above (health laws etc.). And those have certainly been exceeded by Wickard and its progeny.
I believe with the foregoing the answer to the question of if Wickard is based on Marshall's opinion in 9 Wheat is a resounding YES!.
Fair enough, although I don't see how one squares the restrictiveness of Gibbons with the expansiveness of Wickard and its progeny.
I don't think its a question of Constitutionality, in that can a Ferrari drive 155 MPH? The more salient question is should Congress regulate commerce to the degree that they are. The biggest problem I have with this are the price-fixing aspects of the commerce regulation. To a free-market economist this would be utter anathema.
Setting aside case law, would it be accurate to say you think the War on Poverty is constitutional according to your personal view and understanding of the Constitution?
13 Oct. 1802
Works 9:398--99
You know my doubts, or rather convictions, about the unconstitutionality of the act for building piers in the Delaware, and the fears that it will lead to a bottomless expense, & to the greatest abuses. There is, however, one intention of which the act is susceptible, & which will bring it within the Constitution; and we ought always to presume that the real intention which is alone consistent with the Constitution. Altho' the power to regulate commerce does not give a power to build piers, wharves, open ports, clear the beds of rivers, dig canals, build warehouses, build manufacturing machines, set up manufactories, cultivate the earth, to all of which the power would go if it went to the first, yet a power to provide and maintain a navy, is a power to provide receptacles for it, and places to cover & preserve it. In choosing the places where this money should be laid out, I should be much disposed, as far as contracts will permit, to confine it to such place or places as the ships of war may lie at, and be protected from ice; & I should be for stating this in a message to Congress, in order to prevent the effect of the present example. This act has been built on the exercise of the power of building light houses, as a regulation of commerce. But I well remember the opposition, on this very ground, to the first act for building a light house. The utility of the thing has sanctioned the infraction. But if on that infraction we build a 2d, on that 2d a 3d, &c., any one of the powers in the Constitution may be made to comprehend every power of government.
What you have chronicled is precisely the process of piling error upon error that Jefferson warned about. Compare the writings of the founders WRT regulating commerce among the several states with the current doctrine. If the application of precedent is true, they should be in agreement. As it stands they appear to be irreconcilably different.
From Ogden v Gibbons
It is not intended to say that these words comprehend that commerce which is completely internal, which is carried on between man and man in a State, or between different parts of the same State, and which does not extend to or affect other States. Such a power would be inconvenient, and is certainly unnecessary.
Can you give me an example of purely intrastate commerce that would be outside the reach of Congress, should the decide they want to regulate it under the current doctrine?
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