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To: Huck
The real quandary for Scalia was that the Controlled Substance Act itself doesn’t fit under any “originalist” intepretation of the interstate commerce clause.

You're inventing your unsupported "facts", just like Raich did. Let's look some of the actual Congressional findings underlying the act.

The Congress makes the following findings and declarations:

(1) Many of the drugs included within this subchapter have a useful and legitimate medical purpose and are necessary to maintain the health and general welfare of the American people.

(2) The illegal importation, manufacture, distribution, and possession and improper use of controlled substances have asubstantial and detrimental effect on the health and general welfare of the American people.

(3) A major portion of the traffic in controlled substances flows through interstate and foreign commerce. Incidents of the traffic which are not an integral part of the interstate or foreign flow, such as manufacture, local distribution, and possession, nonetheless have a substantial and direct effect upon interstate commerce because -

(A) after manufacture, many controlled substances are transported in interstate commerce,

(B) controlled substances distributed locally usually have been transported in interstate commerce immediately before their distribution, and

(C) controlled substances possessed commonly flow through interstate commerce immediately prior to such possession.

(4) Local distribution and possession of controlled substances contribute to swelling the interstate traffic in such substances.

(5) Controlled substances manufactured and distributed intrastate cannot be differentiated from controlled substances manufactured and distributed interstate. Thus, it is not feasible to distinguish, in terms of controls, between controlled substances manufactured and distributed interstate and controlled substances manufactured and distributed intrastate.


63 posted on 10/16/2009 10:15:08 AM PDT by Mojave (Don't blame me. I voted for McClintock.)
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To: Mojave

The question is not whether the controlled substances are involved in interstate commerce. The question is where the Congress derives its power to control substances.


66 posted on 10/16/2009 10:18:37 AM PDT by Huck ("He that lives on hope will die fasting"- Ben Franklin, Poor Richard's Almanac)
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To: Mojave
In other words, they beg the question. They basically assume that anything that is involved in interstate commerce is subject to Congressional regulation. And then they establish that the substances they wish to control fall under the heading of interstate commerce.

That's not what the commerce clause meant when it was drafted. The Congress based its assumption of authority over any and all things directly or indirectly involved in interstate commerce on liberal readings of the commerce clause in the Federal courts. It's much easier than amending the Constitution.

So with the help of the courts, the Congress establishes that there is nothing under the sun it can't regulate, as long as it is interstate commerce, or related to intersate commerce, or as long as their is a rational basis for thinking it might have a substantial effect on interstate commerce, and Scalia goes along with it. It's ludicrous.

Refer to the actual meaning of the commerce clause at the time it was drafted.

69 posted on 10/16/2009 10:25:36 AM PDT by Huck ("He that lives on hope will die fasting"- Ben Franklin, Poor Richard's Almanac)
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To: Mojave
>(4) Local distribution and possession of controlled substances contribute to swelling the interstate traffic in such substances.

>(5) Controlled substances manufactured and distributed intrastate cannot be differentiated from controlled substances manufactured and distributed interstate.

Oh dear. We had better just give up on trying to distinguish between intra- and inter- state commerce because it's all just so fungible and confusing.

Or, we could uphold the Constitution's original meaning, as suggested by Justice Thomas in Raich:

“Respondent's local cultivation and consumption of marijuana is not "Commerce ... among the several States."

"Certainly no evidence from the founding suggests that "commerce" included the mere possession of a good or some personal activity that did not involve trade or exchange for value. In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana."

If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption (not because it is interstate commerce, but because it is inextricably bound up with interstate commerce), then Congress' Article I powers -- as expanded by the Necessary and Proper Clause -- have no meaningful limits. Whether Congress aims at the possession of drugs, guns, or any number of other items, it may continue to "appropria[te] state police powers under the guise of regulating commerce."

“If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison's assurance to the people of New York that the "powers delegated" to the Federal Government are "few and defined", while those of the States are "numerous and indefinite."

230 posted on 10/16/2009 8:40:37 PM PDT by Palin Republic (Palin - Bachmann 2012 : Girl Power!)
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