To: publiusF27
[You've repeatedly refused to address cultivation and distribution.]
I'll address those things when you show a need
Scalia:
By this measure, I think the regulation must be sustained. Not only is it impossible to distinguish controlled substances manufactured and distributed intrastate from controlled substances manufactured and distributed interstate, but it hardly makes sense to speak in such terms. Drugs like marijuana are fungible commodities. As the Court explains, marijuana that is grown at home and possessed for personal use is never more than an instant from the interstate marketand this is so whether or not the possession is for medicinal use or lawful use under the laws of a particular State.3 See ante, at 2330. Congress need not accept on faith that state law will be effective in maintaining a strict division between a lawful market for medical marijuana and the more general marijuana market.
Let's see if you keep your word.
249 posted on
10/28/2005 6:32:12 AM PDT by
Mojave
To: Mojave; robertpaulsen
In the majority opinion in Raich, Justice Stevens pointed out that it does not matter a bit whether California's cultivation and distribution controls are effective, and his reason was the same as Scalia gave:
Congress need not accept on faith that state law will be effective in maintaining a strict division between a lawful market for medical marijuana and the more general marijuana market.
The statement would be true, from his point of view, even in the face of irrefutable evidence that California's laws are 100% effective.
I've included robertpaulsen in this reply because both of you have helped me to come to a realization here.
The commerce clause is a classic "legal loophole." By that phrase, I mean a word or phrase in a contract or law by which the INTENT of the contract or law may be subverted, while still remaining within the actual wording of the contract or law.
The regulation of commerce is indeed a sweeping power, and the Constitution says nothing about limiting that power.
Just to review, Mr. Madison said this about the commerce power:
Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government
And he said this:
The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.
IF YOU IGNORE THAT INTENT, it is indeed possible to fit virtually anything under the commerce clause umbrella.
I conclude that a strict constructionist is not an originalist. Ignore the intent behind the general phrase "regulate commerce," and it is possible to derive sweeping powers, since the phrase itself is without any limitations. It makes little sense to speak of a "strict interpretation" of such a general phrase, except insofar as you are talking about strictly interpreting ONLY the phrase itself, without regard to the intended meaning.
The other possible conclusion is that there are, somewhere, quotations showing that Madison and the Founders intended to create a federal government with sweeping powers, and you guys are just really bad at finding them. ;-)
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