Why Do Conservatives Still Love the Drug War?

Campaign for Liberty ^ | 2010-04-02 | Jacob Hornberger

[tacticalogic]

From Ogden v. Giobbons.

"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."

[tacticalogic]

Some scholars regard the modern view of the commerce clause as a revival of Gibbons v. Ogden.

And some do not.

[Rockingham]

And reading Justice Story is not illuminating on that issue.

[tacticalogic]

Since you seem familiar with all the case law leading up to our current debacle, how would you assess this letter from Thomas Jefferson as being illuminating as to the process involved?

Thomas Jefferson to Albert Gallatin

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.

[tacticalogic]

Which would be more valuble in pursuit of an understanding of original intent?

[microgood]

Marijuana, possibly the least harmful of the illicit drugs, has marked negative health effects. This costs otherwise healthy people financially in the form of increased health care costs. Does this constitute initiation of force? In what way is it different from regular tobacco smokers? In either case, why must I subsidize the habit, directly or indirectly, of a person incapable of dealing with reality?

All human actions, legal or illegal, have consequences. But this argument goes beyond even drugs to all aspects of human behavior. I know people who have a history of leukemia in the entire family. Should they be prevented from having children because that will drive up your medical costs? It also sounds like we need to outlaw obesity and high blood pressure. Should alcoholics be allowed to reproduce?

Once you go down that path you can outlaw 90% of all human behavior. My experience is that people who engage in that form of argument are usually people who like to control others, not those genuinely looking after the best interests of society.

[flintsilver7]

All human actions, legal or illegal, have consequences.

I agree wholeheartedly, which is why I was criticizing the author of this article because of a statement he made suggesting, more or less, that drug use, of all things, does not have consequences. My main point was that if you believe in that line of thought, you should not make sweeping statements like that. That said, I did not advocate outlawing anything, and anybody who suggests that I did is simply reading into my posts what they want to see.

[microgood]

That said, I did not advocate outlawing anything, and anybody who suggests that I did is simply reading into my posts what they want to see.

And I was hopefully not implying you did. I was just looking at the costs to society argument from a logical angle.

[Rockingham]

The authority of Jefferson's letter suffers from the fact that he did not participate in the Constitutional Convention.

In addition, a private letter, even from Jefferson, has far less weight than the text of the Constitution, the advocacy of Federalist Papers, the debate in the Convention as recorded in Madison's Notes and elsewhere, and the debate during ratification. The point of using "original intent" is to adhere to the contemporaneous communal and public understanding of what the Constitution meant.

Moreover, I doubt that even you would insist along with Jefferson that building lighthouses, canals, airports, etc. was beyond the commerce clause power of the federal government. Or am I mistaken as to your views?

[tacticalogic]

My view is that the original intent of powers granted is as it was understood by those who wrote and ratified it.

To questions Jefferson's autority in the matter because he did not participate in the Convention seems a cheap diversion.

Even if he did not activly participate in the drafting of the Commerce Clause itself, I find the proposition that he would not have understood it, or the intent of those that did to be preposterous.

[tacticalogic]

Moreover, I doubt that even you would insist along with Jefferson that building lighthouses, canals, airports, etc. was beyond the commerce clause power of the federal government. Or am I mistaken as to your views?

I think what my views are doesn't matter. I think if you're really serious about discerning original intent, the first thing you have to realize is that your own intent is irrelevant, and is best left at the door. Can you do that?

[gogeo]

Quite simply, Kincaid: It ain't any of your business or anyone else's business what I ingest, whether it's booze, drugs, candy, or anything else. I am not a drone in your collective bee hive. I am an individual with the natural, God-given right to live my life any way I choose, so long as my conduct doesn't involve the initiation of force against others...

Not so, doper. Presumably when your stinking carcass starts smelling dead we'll have to hire someone to scrape it up and bury it.

When you're driving your dopemobile under the influence and get pulled over, I'll be taxed to pay for the court, police, and jail to house your worthless hide...and that's assuming you didn't take anyone else out on your joyride.

When your starving, feces-covered children are found, we'll provide the services to take care of them.

When you turn all Ozzie Osborne, we'll presumably be taxed to provide a padded room for you.

Initiate force, my @ss!

[little jeremiah]

“Men are qualified for civil liberty in exact proportion to their disposition to put moral chains upon their own appetites—in proportion as their love of justice is above their rapacity;—in proportion as their soundness and sobriety of understanding is above their vanity and presumption;—in proportion as they are more disposed to listen to the counsels of the wise and good, in preference to the flattery of knaves. Society cannot exist, unless a controlling power upon the will and appetite is placed somewhere: and the less of it there is within, the more there must be without. It is ordained in the eternal constitution of things, that men of intemperate minds can not be free. Their passions forge their fetters.”
— Edmund Burke

[Rockingham]

Many legislators have but a thin grasp of the intent of the laws that they enact. The views of a politician who is not a current legislator are even more problematic. Jefferson’s absence from the Convention is of more than a little significance because they met in secret and Madison’s Notes were not published until many decades later.

[Rockingham]

You quote Jefferson’s letter at length as authoritative and then decline to accept the reasoning that it elucidates. The point remains that Jefferson’s view of the commerce clause was so extreme as to be embarrassing to today’s advocates of a narrow reading of the commerce clause.

[publana]

I wish I knew. Legalize all drugs and let natural selection proceed.

[tacticalogic]

You quote Jefferson’s letter at length as authoritative and then decline to accept the reasoning that it elucidates. The point remains that Jefferson’s view of the commerce clause was so extreme as to be embarrassing to today’s advocates of a narrow reading of the commerce clause.

I made no judgements on the reasoning it "elicidates", but it does seem a fair warning on what happens when you start basing each case on the last, eventually compounding minor infractions into outright violation. So far you're the only one who's attempted to discard it from consideration.

As for it being "embarrassing to today's advocates of a narrow reading of the commerce clause", "expansive" and "narrow" appear to just be pigeonhole labels - you can move them around from one to the other depending on their particular view of any given aspect of the commerce clause. You say some of them consider Ogden v Gibbons "expansive", yet it explicitly denies federal authority over purely intrastate commerce.

Who are these advocates, and on what basis do you submit that they possess an understand of the original intent of the Commerce Clause that Jefferson did not?

Do you have some historical references that expound on the commonly understood meaning and intent of the Commerce Clause from contemporaneous sources that contradict Jefferson's assesment? If you do, show me those and I might be persuaded to change my mind. Berating me with admonisons about what anonymous "modern day advocates" think is a waste of time.

You are an anonymous screen name on an internet forum. Tell me why I should discard Jefferson's writings on your say-so.

[tacticalogic]

Many legislators have but a thin grasp of the intent of the laws that they enact. The views of a politician who is not a current legislator are even more problematic. Jefferson’s absence from the Convention is of more than a little significance because they met in secret and Madison’s Notes were not published until many decades later.

And yet you agree that the original intent of the commerce clause was what it was understood to be by the general public at the time. Does Jefferson somehow not qualify as a member of the general public? Do you expect me to believe that there was no private communcation between Jefferson and the delegates of the convention, or public discussion about these issues between the Founders and the general public outside of the convention hall? You make it sound like some kind of conspiracy.

[gogeo]

True, true, true.

[Rockingham]

The best evidence of what the commerce clause was understood to mean at the time is as I described: the debates in the Convention and the public debates over ratification. Private statements by participants in the Convention should be accorded a lesser weight.

Since Jefferson was not present at the Convention, he was not a participant or witness to its deliberations. What Jefferson offers based on what someone might have told him about those deliberations is hearsay, a form of evidence that is correctly considered to be of questionable reliability.