The Libertarian Heritage: The American Revolution and Classical Liberalism

How does this analysis square with your view of the situation:

It was not merely coincidental, then, that sea changes in the Court's conceptions of its authority under the Due Process and Commerce Clauses occurred virtually together, in 1937, with West Coast Hotel Co. v. Parrish, 300 U.S. 379 and NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1. See Stern, The Commerce Clause and the National Economy, 1933-1946, 59 Harv. L. Rev. 645, 674-682 (1946). In West Coast Hotel, the Court's rejection of a due process challenge to a state law fixing minimum wages for women and children marked the abandonment of its expansive protection of contractual freedom. Two weeks later, Jones & Laughlin affirmed congressional commerce power to authorize NLRB injunctions against unfair labor practices. The Court's finding that the regulated activity had a direct enough effect on commerce has since been seen as beginning the abandonment, for practical purposes, of the formalistic distinction between direct and indirect effects.

In the years following these decisions, deference to legislative policy judgments on commercial regulation became the powerful theme under both the Due Process and Commerce Clauses, see United States v. Carolene Products Co., 304 U. S., at 147-148, 152; United States v. Darby, 312 U.S. 100, 119-121 (1941); United States v. Wrightwood Dairy Co., 315 U.S. 110, 118-119 (1942), and in due course that deference became articulate in the standard of rationality review. In due process litigation, the Court's statement of a rational basis test came quickly. See United States v. Carolene Products Co., supra, at 152; see also Williamson v. Lee Optical Co., 348 U. S., at 489-490. The parallel formulation of the Commerce Clause test came later, only because complete elimination of the direct/indirect effects dichotomy and acceptance of the cumulative effects doctrine, Wickard v. Filburn, 317 U.S. 111, 125, 127-129 (1942); United States v. Wrightwood Dairy Co., supra, at 124-126, so far settled the pressing issues of congressional power over commerce as to leave the Court for years without any need to phrase a test explicitly deferring to rational legislative judgments. The moment came, however, with the challenge to congressional Commerce Clause authority to prohibit racial discrimination in places of public accommodation, when the Court simply made explicit what the earlier cases had implied: "where we find that the legislators, in light of the facts and testimony before them, have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end." Katzenbach v. McClung, 379 U.S. 294, 303-304 (1964), discussing United States v. Darby, supra; see Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258-259 (1964). Thus, under commerce, as under due process, adoption of rational basis review expressed the recognition that the Court had no sustainable basis for subjecting economic regulation as such to judicial policy judgments, and for the past half century the Court has no more turned back in the direction of formalistic Commerce Clause review (as in deciding whether regulation of commerce was sufficiently direct) than it has inclined toward reasserting the substantive authority of Lochner due process (as in the inflated protection of contractual autonomy). See, e.g., Maryland v. Wirtz, 392 U. S., at 190, 198; Perez v. United States, 402 U.S. 146, 151-157 (1971); Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S., at 276, 277.

You will note that there is quite a bit more to due process of law than your quote of Justice Harlan.

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Quite true Lucky my boy. An excellent source for the legal systems views on due process is Findlaw:

http://caselaw.lp.findlaw.com/data/constitution/amendment05/

They have an exhaustive list of annotations you can study:

Â• Indictment by Grand Jury
Â• Double Jeopardy
Â• Development and Scope
Â• Reprosecution Following Mistrial
Â• Reprosecution Following Acquittal
o Acquittal by Jury
o Acquittal by the Trial Judge
o Trial Court Rulings Terminating Trial Before Verdict
Â• Reprosecution Following Conviction
o Reprosecution After Reversal on Defendant's Appeal
o Sentence Increases
Â• ''For the Same Offence''
o Legislative Discretion as to Multiple Sentences
o Successive Prosecutions for ''The Same Offense''
o The ''Same Transaction'' Problem
Â• Self-Incrimination
Â• Development and Scope
Â• The Power to Compel Testimony and Disclosure
o Immunity
o Required Records Doctrine
o Reporting and Disclosure
Â• Confessions: Police Interrogation, Due Process, and Self-Incrimination
o The Common Law Rule
o McNabb-Mallory Doctrine
o State Confession Cases
o From the Voluntariness Standard to Miranda
o Miranda v. Arizona
Â• The Operation of the Exclusionary Rule
o Supreme Court Review
o Procedure in the Trial Courts
Â• Due Process
Â• History and Scope
o Scope of the Guaravnty
Â• Procedural Due Process
o Generally
o Administrative Proceedings: A Fair Hearing
o Aliens: Entry and Deportation
o Judicial Review of Administrative Proceedings
Â• Substantive Due Process
o Discrimination
o Congressional Police Measures
o Congressional Regulation of Public Utilities
o Congressional Regulation of Railroads
o Taxation
o Retroactive Taxes
o Deprivation of Property: Retroactive Legislation
o Bankruptcy Legislation
o Right to Sue the Government
o Congressional Power to Abolish Common Law Judicial Actions
o Deprivation of Liberty: Economic Legislation
Â• National Eminent Domain Power
o Overview
o Public Use
o Just Compensation
? Interest
? Rights for Which Compensation Must Be Made
? Consequential Damages
? Enforcement of Right to Compensation
o When Property Is Taken
? Government Activity Not Directed at the Property
? Navigable Waters
? Regulatory Takings

You will note that there is quite a bit more to due process of law than your quote of Justice Harlan.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Quite true Lucky my boy. An excellent source for the legal systems views on due process is Findlaw:

http://caselaw.lp.findlaw.com/data/constitution/amendment05/

They have an exhaustive list of annotations you can study:

Â• Indictment by Grand Jury
Â• Double Jeopardy
Â• Development and Scope
Â• Reprosecution Following Mistrial
Â• Reprosecution Following Acquittal
o Acquittal by Jury
o Acquittal by the Trial Judge
o Trial Court Rulings Terminating Trial Before Verdict
Â• Reprosecution Following Conviction
o Reprosecution After Reversal on Defendant's Appeal
o Sentence Increases
Â• ''For the Same Offence''
o Legislative Discretion as to Multiple Sentences
o Successive Prosecutions for ''The Same Offense''
o The ''Same Transaction'' Problem
Â• Self-Incrimination
Â• Development and Scope
Â• The Power to Compel Testimony and Disclosure
o Immunity
o Required Records Doctrine
o Reporting and Disclosure
Â• Confessions: Police Interrogation, Due Process, and Self-Incrimination
o The Common Law Rule
o McNabb-Mallory Doctrine
o State Confession Cases
o From the Voluntariness Standard to Miranda
o Miranda v. Arizona
Â• The Operation of the Exclusionary Rule
o Supreme Court Review
o Procedure in the Trial Courts
Â• Due Process
Â• History and Scope
o Scope of the Guaravnty
Â• Procedural Due Process
o Generally
o Administrative Proceedings: A Fair Hearing
o Aliens: Entry and Deportation
o Judicial Review of Administrative Proceedings
Â• Substantive Due Process
o Discrimination
o Congressional Police Measures
o Congressional Regulation of Public Utilities
o Congressional Regulation of Railroads
o Taxation
o Retroactive Taxes
o Deprivation of Property: Retroactive Legislation
o Bankruptcy Legislation
o Right to Sue the Government
o Congressional Power to Abolish Common Law Judicial Actions
o Deprivation of Liberty: Economic Legislation
Â• National Eminent Domain Power
o Overview
o Public Use
o Just Compensation
? Interest
? Rights for Which Compensation Must Be Made
? Consequential Damages
? Enforcement of Right to Compensation
o When Property Is Taken
? Government Activity Not Directed at the Property
? Navigable Waters
? Regulatory Takings

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Please, let me know if you find anything that refutes Harlans observations.

Please, let me know if you find anything that refutes Harlans observations.

There's every thing there to refute yours.

Care to give us your opinion on 301?

He'll probably cut & paste a list of everything findlaw has annotated on the commerce clause.

Care to give us your opinion on 301?

…the Court simply made explicit what the earlier cases had implied: "where we find that the legislators, in light of the facts and testimony before them, have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end."

My opinion coincides with the quoted portion of the posted text in 301.

The only apparent quarrel someone could voice is as to what constitutes “a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce.” To so quarrel is merely to substitute the objector’s opinion for that of the courts. “We the people,” have delegated the coercive power to adjudicate disputes to the courts. These duly and lawfully appointed adjudicators, in turn, have deferred to Congress. Consequently, attempting to substitute non-judicial opinions for those of those duly appointed and those duly elected is feckless. If one wishes to directly change the situation, then election of alternate representation in Congress appears to be the correct solution.

Capitalism does not lead inevitably to monopoly. Except in the short term, a monopoly can only exist if it is supported by the government, which is not capitalism, unless that monopoly continuously reduces its prices, raises its wages and the price that it pays for its materials, which is a good thing, others will enter the market and compete, either with the same products at lower prices, or alternative products.

Except in the short term...

So, its alright to deny someone's economic freedom if its only a "short term?"

My opinion coincides with the quoted portion of the posted text in 301.

That's Souter's dissenting opinion in Lopez.

Thus there is no apparent quarrel anyone should voice as to what constitutes a rational basis for finding a chosen 'drug war' regulatory scheme necessary to the protection of individual liberties.
To so quarrel is merely to substitute the objector's opinion for that of the courts, who must be obeyed.
"We the people," have delegated the coercive power to adjudicate disputes to the courts. These duly and lawfully appointed adjudicators, in turn, have deferred to Congress, who again, must be obeyed for the good of society .

Consequently, attempting to substitute non-judicial opinions for those of those duly appointed and those duly elected is a feckless challenge to good order.
If one wishes to directly change the situation, then election of alternate representation in Congress appears to be the correct solution.
Any attempt to suggest that constitutional amendments are necessary to prohibit drugs are simply bad form, and need not be tolerated by the powers that be.

That's Souter's dissenting opinion in Lopez.

OK. You asked for my opinion and I agreed with Souter in the situation posed. And your point?

Thus there is no apparent quarrel anyone should voice as to what constitutes a rational basis for finding a chosen 'drug war' regulatory scheme necessary to the protection of individual liberties.

The point is simple: If you have a quarrel with “the rational basis,” elect some one who agrees with you and those elected officials can change the “rational basis.” Until, and unless, you get such officials elected, you are certainly free to express whatever opinion on the subject you choose, regardless of such opinion’s irrationality or fecklessness.

To so quarrel is merely to substitute the objector's opinion for that of the courts, who must be obeyed.

We live in a nation under law. Consequently, the short answer to your implied question is “yes, we must obey the law,” until we elect someone who will legally change the situation.

"We the people," have delegated the coercive power to adjudicate disputes to the courts. These duly and lawfully appointed adjudicators, in turn, have deferred to Congress, who again, must be obeyed for the good of society.

As noted above, we live in a nation under law. Consequently, the short answer to your implied question remains “yes, we must obey the law,” until we elect someone who will change the situation.

Consequently, attempting to substitute non-judicial opinions for those of those duly appointed and those duly elected is a feckless challenge to good order. If one wishes to directly change the situation, then election of alternate representation in Congress appears to be the correct solution.

Your agreement is noted.

Any attempt to suggest that constitutional amendments are necessary to prohibit drugs are simply bad form, and need not be tolerated by the powers that be.

The Constitution very clearly lays out the procedure for amendments in Article V. Amendments may originate in Congress or as a result of a constitution convention convened by the action of state legislatures. If you choose to attempt to avail yourself of either of these methods, it is fine with me.

However, as to the necessity for an amendment to prohibit drugs, according to Congress, the President and the US Judiciary such an amendment is not necessary. This position is appropriate because Article VI gives the status of “supreme law of the land” to the “laws of the United States.” The laws passed by Congress under the authority of Article I, signed by the President under the authority of the same article, and upheld by constitutionally competent tribunals are, in fact, “laws of the United States.”

How does a monopoly deny someone's economic freedom. they always have the right to buy or not to buy.

Lucky Dog wrote:

Capitalism, unbridled, leads to monopolies which, in turn, strangle capitalism. In other words, this economic system, unregulated, contains the seeds of its own destruction. Consequently, even pure libertarians must concede that some form of coercive regulation has to be emplaced to prevent monopolies from developing and stifling the economic liberties of the individual.

Daveinyork wrote:

Capitalism does not lead inevitably to monopoly.
Except in the short term, a monopoly can only exist if it is supported by the government, which is not capitalism, unless that monopoly continuously reduces its prices, raises its wages and the price that it pays for its materials, which is a good thing, others will enter the market and compete, either with the same products at lower prices, or alternative products.

Lucky Dog wrote:

So, its alright to deny someone's economic freedom if its only a "short term?"

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Note that in his initial post Lucky is advocating that "-- some form of coercive regulation has to be emplaced to prevent monopolies from developing --"

In his rejoiner, instead of debating the issue as framed by dave, he jumps on the 'short term' line in an effort to confuse; -- so he can avoid defending his "unbridled' attack on capitalism.

OK. You asked for my opinion and I agreed with Souter in the situation posed. And your point?

Beyond pointing out your obvious affinity for liberal "nanny government" intrusions, Souter was in the minority. By your own standards that makes him wrong.

We live in a nation under law. Consequently, the short answer to your implied question is "yes, we must obey the law," until we elect someone who will legally change the situation.

Not true according to Justice Marshall in Marbury [1803]:
"-- an act of the legislature, repugnant to the constitution, is void.

If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect?
It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory.
It would declare that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual.

It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. --"

-- as to the necessity for an amendment to prohibit drugs, according to Congress, the President and the US Judiciary such an amendment is not necessary.
This position is appropriate because Article VI gives the status of "supreme law of the land" to the "laws of the United States."

Not true. "This Constitution," is the supreme law, followed by "and the Laws of the United States which shall be made in Pursuance thereof;" - note that the laws made must 'pursue' [conform to] the Constitution. -- Again, -- Marshall makes this same point in Marbury..

The laws passed by Congress under the authority of Article I, signed by the President under the authority of the same article, and upheld by constitutionally competent tribunals are, in fact, "laws of the United States."

Only if they are not 'repugnant' to the Constitution itself. "-- an act of the legislature, repugnant to the constitution, is void. --"

You really need to study Marbury from Marshalls 'presumption of liberty' point of view. Remarkable document.

Only if they [laws] are not 'repugnant' to the Constitution itself. "-- an act of the legislature, repugnant to the constitution, is void. --"

It seems that you wish to ignore who determines which "acts of the legislature" are "repugnant."

First, the President is authorized to veto any legislation that he feels is “repugnant.” However, it may be possible for the President to be mistaken or over ruled by a two thirds majority as specified in the Constitution. However, this is not the last line of protection.

It is in the very case you cited that the right of judicial review was established. The US judiciary reviews the law and makes the determination of exactly what is “repugnant.”

You will kindly note that I established such in my previous argument:

The laws passed by Congress under the authority of Article I, signed by the President under the authority of the same article, and upheld by constitutionally competent tribunals are, in fact, “laws of the United States.”

You really need to study Marbury from Marshalls 'presumption of liberty' point of view. Remarkable document.

It is indeed a remarkable document, but it appears that I am not the one who needs to study it.

By your own standards that makes him wrong.

Assuming your information is correct (which I haven't checked), you assessment is accurate. What is your point?