What about my private pilot example? He's free to fly wherever and whenever he wants, but when his flying has a "substantial effect" on the interstate commerce that Congress is regulating (ie., he gets in the way of a very big and very fast airplane), Congress has to power to tell him not to do that. You do agree, I hope.
"there is no way that someone's backyard pot plant or homemade machine gun can have "substantial effects" on interstate commerce"
Well, the courts have allowed Congress to view this as not just one pot plant or one machine gun but to consider the aggregate. It could very easily be pot plants in 10 million backyards, could it not? Now, couldn't some of those plants end up in interstate commerce? I mean, who would know? There's no way to determine if the plants are interstate or intrastate.
Normally, who cares? BUT, in this case, Congress is trying to regulate the interstate commerce of marijuana, and 10 million growers of fungible marijuana would have a substantial effect on their efforts.
Does it really have a substantial effect, or does Congress just think it might? The Raich court says it makes no difference.
"In assessing the scope of Congress' Commerce Clause authority, the Court need not determine whether respondents' activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a "rational basis" exists for so concluding."
We can wink-wink, nudge-nudge this all day, but you know as well as I do that this "backyard" pot would end up interstate. Plus, how long before we'd hear the argument, "Well if it's legal to possess it in my state, and it's legal to possess it in your state, it's really stupid and a waste of law enforcement's time and money to keep me from taking my legal product to your state."
You can hear that argument, can't you?
"The federal government simply has no legitimate authority to regulate such matters."
You can certainly make the argument that Congress shouldn't regulate such matters. But numerous courts, including the U.S. Supreme Court, have ruled that they can.
"These sorts of things were wisely left to the states to regulate, and there frankly is nothing stopping the states from doing so."
Well yeah, there is. IF Congress chooses to legislate, their law supercedes any state law to the contrary. This is covered under the Supremacy Clause of the U.S. Constitution.
But, let's pretend. Let's say Congress repealed the Controlled Substances Act and allowed each state to regulate drugs however they saw fit to do so. Some states legalized marijuana, some states kept all drugs illegal, some state legalized all drugs, some states legalized marijuana and cocaine, etc. OK? Is this what you had in mind?
Would this work? What to keep the legal heroin in one state from getting into the adjacent states where it remains illegal? Who's to prevent the export of legal marijuana/cocaine/heroin in one state to another country (where it's illegal)?
A little history. Prior to Prohibition, about half the states banned alcohol in one form or another. There was such a problem with "wet" states smuggling alcohol to the "dry" states that those "dry" states asked the federal government for help. The Webb-Kenyon Act was passed making it a federal crime to do this. It didn't work. Finally, Prohibition came about, which solved the problem.
You don't think the same thing would happen with easy-to-smuggle drugs?
"The other option is to amend the constitution to authorize the federal government to do so."
Since the federal government has the constitutional authority to regulate drugs, an amendment would be required to remove this power. This was done with alcohol.
Then Congress can have all the power it can imagine.
True history; prior to Prohibition, about half the states unconstitutionaly banned alcohol in one form or another. [we have an inalienable right to drink booze]
There was such a problem with "wet" states smuggling alcohol to the "dry" states that those "dry" states asked the federal government for help.
Yep, they asked the feds to ignore the Constitutions 9th and 10th Amendments.
The Webb-Kenyon Act was passed making it a federal crime to do this. It didn't work.
It didn't work because the people ignore unconstitutional infringements on their liberties.
Finally, Prohibition came about, which solved the problem.
Nope, prohibition didn't work either, -- because the people of the USA ignore unconstitutional infringements on their liberties. Thus, prohibition was repealed.
This begs the question. Remember that before the amendment re-legalizing alcohol at the federal level, an amendment was passed to authorize the federal government to regulate alcohol.
If it is true that the authority to regulate such things is inherent to the federal government, why was this step taken?
Keep in mind that I am not arguing that recreational drugs be legalized; rather, I am arguing that we ought to proceed in an orginalist manner. Every time we stray from that course, it comes back to bite us in other areas.
Remember, too, the case that started the "substantial effects" test: Wickard v. Filburn, which was an explicitly fascist/socialist New Deal decision, allowing the government to set quotas for farmers' crops. From an orginalist perspective, such a thing is unthinkable. It is frankly offensive to the intentions of the Founding Fathers that this abomination of a decision is still being used as precedent today. I look forward to the day when it is tossed on to the ash heap of history.
I agree with Justice Thomas in this area, as he wrote in his concurrence in U.S. v. Morrison:
The majority opinion correctly applies our decision in United States v. Lopez (1995), and I join it in full. I write separately only to express my view that the very notion of a "substantial effects" test under the Commerce Clause is inconsistent with the original understanding of Congress' powers and with this Court's early Commerce Clause cases. By continuing to apply this rootless and malleable standard, however circumscribed, the Court has encouraged the Federal Government to persist in its view that the Commerce Clause has virtually no limits. Until this Court replaces its existing Commerce Clause jurisprudence with a standard more consistent with the original understanding, we will continue to see Congress appropriating state police powers under the guise of regulating commerce.
I think a few million people would disagree. Not to mention all the Congressmen, and state legislators, who saw it didn't work, and repealed it. But in meantime, prohibition "made" organized crime.
Clearly Congress had the power to prohibit shipping alcholhol into dry states, since that would indeed be interstate commerce. At least then they recognized that they had no power to just ban alcohol sales entirely, and passed, with the help of the States, a Constitutional Amendment to do it, and to give them the power to enforce that ban. They no longer have that power, the people took it back.