In Shreveport, the fact that they were a common carrier was the relevant issue, and the intrastate commerce activity was irrelevant. In applying it to Wickard they turned that upside down.
At the beginning Chief Justice Marshall described the Federal commerce power with a breadth never yet exceeded. Gibbons v. Ogden, 9 Wheat. 1, 194, 195. He made emphatic the embracing and penetrating nature of this power by warning that effective restraints on its exercise must proceed from political rather than from judicial processes. 9 Wheat. at page 197>. [317 U.S. 111, 121] [Since then] decisions of this Court under the Commerce Clause dealt rarely with questions of what Congress might do in the exercise of its granted power under the Clause and [instead] almost entirely with the permissibility of state activity which it was claimed discriminated against or burdened interstate commerce. During this period there was perhaps little occasion for the affirmative exercise of the commerce power, and the influence of the Clause on American life and law was a negative one, resulting almost wholly from its operation as a restraint upon the powers of the states. In discussion and decision the point of reference instead of being what was necessary and proper to the exercise by Congress of its granted power, [insted focused on] some concept of sovereignty thought to be implicit in the status of statehood. Certain activities such as 'production,' 'manufacturing,' and 'mining' were occasionally said to be within the province of state governments and beyond the power of Congress under the Commerce Clause.17It 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.28 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 [317 U.S. 111, 129] 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. - Wickard @ 128,129[The] Interstate Commerce Act [of 1887 was the first act by Congress where]...the interstate commerce power began to exert positive influence in American law and life. This first important federal resort to the commerce power was followed in 1890 by the Sherman Anti-Trust Act and, thereafter, mainly after 1903, by many others. These statutes ushered in new phases of adjudication, which required the Court to approach the interpretation of the Commerce Clause in the light of an actual exercise by Congress of its power thereunder.
When it first dealt with this new legislation, the Court adhered to its earlier pronouncements, and allowed but [317 U.S. 111, 122] little scope to the power of Congress. United States v. E. C. Knight Co., 156 U.S. 1 , 15 S.Ct. 249. 20 These earlier pronouncements also played an important part in several of the five cases in which this Court later held that Acts of Congress under the Commerce Clause were in excess of its power.21
Even while important opinions in this line of restrictive authority were being written, however, other cases called forth broader interpretations of the Commerce Clause destined to supersede the earlier ones, and to bring about a return to the principles first enunciated by Chief Justice Marshall in Gibbons v. Ogden, supra. - Wickard @ 120-122
The opinion next cites the following cases:
United States v. E. C. Knight Co., supra (was actually cited as being one of restrictive interpretation)
Swift & Co. v. United States
Houston, E. & W.T.R. Co. v. United States
United States v. Wrightwood Dairy Co
None of those have anything to do with common (or uncommon carriers). It is quite apparent that you have this fixation with an alleged unconstitutional New Deal Commerce Clause. I'm not suggesting that you're out to lunch, not by any stretch. I believe your position is that of fallacy. I'm not suggesting that its based on logical fallacy, I believe your opinion to be quite reasonable. I'm using the word "fallacy" in the same context that Rumsfeldt used it at the press-briefing the other day when the report tried to make a point by saying there hadn't been an active duty military leader of the CIA since 1953. That statement is based on a fallacy: misguided presumption. You object to Congress legislating regulations into the local domain, infringing upon State's rights of self-governance. Fair enough as far as I'm concerned, but we part company with aspersions concerning unconstitutionality pertaining to applicability of the commerce clause in general to the war on drugs, and with respect to Wickard specifically.
It appears to me that if you had your druthers, things should run more like they ran under the Articles of Confederacy, or perhaps even with respect to the constitution of the United Confederation of States. I've previously stated this, the issue pertaining to States Rights was already broached concerning the issue of slavery. As heinous as the issue of slavery is, I believe the States had a right to decide that issue themselves. Instead something was rammed down their throats. I'm have no knowledge whatsoever if the commerce clause was invoked concerning any of that. I don't see how, in that slavery would be entirely a manufacturing, production, labor matter. And at the time, none of that was relevent to the issue of commerce. That notwithstanding, that's a moot point at this time: a war was fought over that.
Respecting the issue of State sovereignty, well, o.k., no concessions on my part are necessary; I'm squarely in that camp and have a great deal of sympathy for the States in that regard. So much so that I find popular election of Senators extremely abhorent and repugnant to my sense of architecture of the Republic. I believe that the action that can be undertaken having the greatest impact concerning continued erosion of the States' rights, would be to repeal the 17th ammendment. Frankly, above all else, the 17th ammendment is a far greater anathema than anything else.
That being said, what about these glorious "gardens" of States sovereignty that Congress so obnoxiously trampled into? Where were the States during the Muckraker Era? Why didn't they jump on the bandwagon and legislate regulation immediately after Upton Sinclair published The Jungle? If the States don't act, Congress will. Keep one thing absolutely fore, front and center: politicians are polical animals. They'll do whatever needs to be done to get re-elected (not necessarily what's right). I've heard it said: "It's hard to do what is right." I beg to differ. The hard thing to determine is just what is the right thing to do. Once that is known, its hard not to do it. Frankly, it takes effort not to do the right thing.
I concede nothing respecting the Constitutionality of what Congress did, nor do I condone a great deal of what has been legislated, but I do acquiesce based entirely on pragmatism. I do however concede the point of contention concerning the Welfare Clause granting a mandate to act (I throw out Jefferson's quote in support of that). I don't believe it to be an issue of the "liveing Constitution" on the part of the Supreme Court. How many times was the phrase used "they have this and this power, except for limitations stipulated by other provisions in the Constitution." Are you going to come up to me with your nice guy smile, put your hand on my shoulder and tell me nicely, "Oliver Wendell Holmes knows nothing about the Constitution, but I do."
Where were the State's during the 1930's? How come they didn't legislate their way out of the morass they were in? Kansas is hip deep in wheat, its going to mold, their burning it to get rid of it [entertain my poetic license please], but people in Maine are starving. Kansas says: who cares? Not our problem.
Now I'm going to start pointing fingers at the States, if they don't like what's going on today. I'm not just pointing, I'm stabbing my forefinger into their chest (and I hope it hurts). These are the facts:
It cost money to grow corn and wheat and to harvest it. It cost money to bring in the crop and get it to market. You had to hire men and machines. It cost money to feed cattle and get them to market. Farmers had no money. It was costing them more to stay in business than they could earn by bringing in a crop and getting it to market. What would you do? They let their crops lie in the fields to rot. They killed their animals. They poured milk into the ground. Meanwhile, people in the cities needed food, for which they could barely pay. People were starving. Soup kitchens opened. I had a client describe how his mother would give him a small cold potato in the morning and send him off to school. That was his meal for the day. FDR tried to do something about this, because there were millions of farmers, then, and more millions of people needing food in the cities. The AAA was an effort to regulate prices so that farmers would have an incentive to harvest their crops and animals, bring them to market, and make enough money to do it all over again next year. Price supports, fair trade and marketing regulations, "parity," government subsidized restrictions on what could be grown and how much, were enacted by Congress. Government paid some farmers not to grow unneeded crops. Farmers were being paid not to farm. This still happens, by the way. It's hard to get rid of a government funded program just because the need has disappeared. - Circle of Confusion; Wickard, Raich I throw down right now, with vehemence. If somebody put a gun to most peoples heads and demanded to know who their State Representative was, or who their State Senator was, or precisely what it was that the State legislature was working on, they could not answer. There'd be no better answer if they moved the aim of that speculative gun to their 4 year old daughter's head, and declared unequivocally "I'll pull the trigger if you don't give me the correct answer."
Are you guys so obsessed with smoking dope that you can't see pragmatically passed the end of your noses? "Think globally, act locally." What in the hell does that mean in this day and age? When's the last time you've been to a City Council meeting? What legisltation is under consideration? Is the State infringing on what the local city charter is trying to imlement? What does the local city charter even say? If you talk to 10 people, 9 will tell you they don't have a clue, and 7 will tell you they don't care. At least 6 of those people will be upset their child will be murdered in this hypothetical situation, but 9 will demand to know, "What can I do, I'm just one of the little people."
I guess what it comes down to, there's much bigger fish to fry than the right to smoke dope. Because all things being equal, the powers that be actually want you to smoke dope; it'll keep them in power.
Even so they want you to smoke dope (and its in the politicians best interests their constituents do so), the reason there is a war on drugs is due to the facts that:
1) it generates revenue for the war on drug soldiers 2) a sufficient number of votes are retained by those candidates who advocate the war on drugs so as to win elections.
Respecting Federal encroachment upon State sovereignty, if more people were thinking locally and acting locally, all of this would be mooot.
/end rant
[Footnote 17] Veazie v. Moor, 14 How. 568, 573, 574; Kidd v. Pearson, 128 U.S. 1 , 20-22, 9 S.Ct. 6, 9, 10.
[Footnote 21] Employers Liability Cases (Howard v. Illinois Central R. Co.), 207 U.S. 463 , 28 S.Ct. 141; Hammer v. Dagenhart, 247 U.S. 251 , 38 S.Ct. 529, 3 A.L.R. 649, Ann.Cas.1918E, 724; Railroad Retirement Board v. Alton R. Co., 295 U.S. 330 , 55 S.Ct. 758; Schechter Corp. v. United States, 295 U.S. 495 , 55 S.Ct. 837, 97 A.L.R. 947; Carter v. Carter Coal Co., 298 U.S. 238 , 56 S.Ct. 855; cf. United States v. Dewitt, 9 Wall. 41; Trade Mark Cases (United States v. Steffens), 100 U.S. 82 ; Hill v. Wallace, 259 U.S. 44 , 42 S.Ct. 453; Heisler v. Thomas Colliery Co., 260 U.S. 245, 259 , 260 S., 43 S.Ct. 83, 86; Oliver Iron Co. v. Lord, 262 U.S. 172, 178 , 179 S., 43 S.Ct. 526, 529; Utah Power & Light Co. v. Pfost, 286 U.S. 165 , 52 S.Ct. 548.
[Footnote 28] Swift & Co. v. United States, 196 U.S. 375 , 25 S.Ct. 276; Stafford v. Wallace, 258 U.S. 495 , 42 S.Ct. 397, 23 A.L. R. 229; Board of Trade of Chicago v. Olsen, 262 U.S. 1 , 43 S.Ct. 470; Coronado Coal Co. v. United Mine Workers, 268 U.S. 295 , 45 S.Ct. 551; United States v. Trenton Potteries Co., 273 U.S. 392 , 47 S.Ct. 377, 50 A.L.R. 989; Tagg Bros. & Moorhead v. United States, 280 U.S. 420 , 50 S.Ct. 220; Standard Oil Co. of Indiana v. United States, 283 U.S. 163 , 51 S.Ct. 421; Currin v. Wallace, 306 U.S. 1 , 59 S.Ct. 379; Mulford v. Smith, 307 U.S. 38 , 59 S.Ct. 648; United States v. Rock Royal Co- operative, supra; United States v. Socony-Vacuum Oil Co., 310 U.S. 150 , 60 S.Ct. 811; Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381 , 60 S.Ct. 907; United States v. Darby, supra; United States v. Wrightwood Dairy Co., supra; Federal Power Commission v. Pipeline Co., 315 U.S. 575 , 62 S.Ct. 736.