Where In The Constitution...
 

...is Congress empowered to make such laws on things such as drugs (1970 Controlled Substances Act)?

The news article below made me wonder...as well as making me think (again) that the federal government has probably overstepped its Constitutional limits (perhaps not so much in the court ruling as in making the law in the first place).

AP

Re: Where In The Constitution...
 

It all relates back to interstate commerce in some way. They have stretched that clause so far it is disgusting.

Re: Where In The Constitution...
 

Look no further than wickard v. filburn

natedogg

Re: Where In The Constitution...
 

[ QUOTE ]
It all relates back to interstate commerce in some way. They have stretched that clause so far it is disgusting.

[/ QUOTE ]

So how are the feds allowed to go after those medicinal weed growers in California who are only selling to people in California?

Re: Where In The Constitution...
 

I think you have to go back to Gibbons vs Ogden and move forward from there too.

Re: Where In The Constitution...
 

[ QUOTE ]
[ QUOTE ]
It all relates back to interstate commerce in some way. They have stretched that clause so far it is disgusting.

[/ QUOTE ]

So how are the feds allowed to go after those medicinal weed growers in California who are only selling to people in California?

[/ QUOTE ]

The same way it is if you grow your own cornfeed for your pigs that you sell within your own state. That's interstate commerce don't you know?

Although I'm not a big fan of original intent as a guiding principle to constitional law, it's worth noting that the original intent of the commerce clause was almost certainly to prevent interstate tariffs, NOT to give the federal govt power to regulate every minute aspect of the economy (and justify legislated morality like the drug laws are).

natedogg

Re: Where In The Constitution...
 

[ QUOTE ]
I think you have to go back to Gibbons vs Ogden and move forward from there too.

[/ QUOTE ]

Ok, so I found this:

Commerce Clause: Route to Omnipotent Government which provides a historical overview.

I'm aware that the Commerce Clause, and the General Welfare clause, have been used to increase the powers of the federal government, in various venues...is there anything else in the Constitution that empowers Congress to pass laws such as the 1970 Controlled Substances Act or the later Penalty law with regards to it?

Some of the Penalties are very severe and appear to me to go far beyond what would be required for "regulation". When a regulation is broken, regarding many other things besides drugs, one doesn't expect to see penalties such as: 40 years in prison.

What is the point of Constitutionally limiting the powers of government, if a couple of clauses in the Constitution can be interpreted to give government virtually unlimited powers? That doesn't make sense to me, and appears to be a strong argument against expansive interpretation of those two clauses. The Founders were very keen on limiting the powers of government; surely they couldn't have intended it to be all a mirage, or that government should be able to do anything it wants by simply expansively interpreting a couple of clauses.

I'm getting a little away from the initial question of my post (and would still like to know if there are any more specific clauses in the Constitution granting such power to Congress), but I'm also wondering just how far along the road to tyranny we already are.

I don't do any drugs or have anything to do with drugs at all, but I'm not happy about this even one little bit. I thought this country was founded to be free, not to be regulated and punished. I'm really starting to get more disillusioned the more I learn.

I think most people, and especially our legislators and judges, may have lost sense of the value of freedom. Maybe what one does not have to fight for one's self, one takes for granted and does not truly appreciate.

Re: Where In The Constitution...
 

I also think part of it was when the supreme court was reprimanded by FDR for trying to block his new deal legislation. When he threatened to pack the court with his own judges then folded and passed new deal legislation. Even though they initially thought it to be outside the bounds of the national government. Things have not been the same since. I could be wrong on the historical ramifications of this event. But I am pretty sure this is accurate though.

Re: Where In The Constitution...
 

Nope, you nailed it. If I were a libertarian, the "Court Packing Scheme" would be the single worst political event ever.

Re: Where In The Constitution...
 

[ QUOTE ]
I think you have to go back to Gibbons vs Ogden and move forward from there too.

[/ QUOTE ]

You might also want to go back to McCulloch v. Maryland (which was actually a cited precendential case for Gibbons). I won't get into the details, but one of the major holdings was that Congress can do anything not restricted by the Constitution, rather than limiting Congress's powers to those enumerated. And this was before the opinion's discussion of the Necessary and Proper Clause.

The expansive view of the Commerce Clause was made possible in large part to this interpretation of Congress's powers.

Re: Where In The Constitution...
 

[ QUOTE ]
Nope, you nailed it. If I were a libertarian, the "Court Packing Scheme" would be the single worst political event ever.

[/ QUOTE ]

I think you have to look at that event in context, however.

The court FDR locked horns with was HIGHLY activist, and had read into the 14th Amendment an absolute right for all employment relationships to be completely unregulated at both the state and the federal level (under the phrase of "liberty of contract", which they judicially inserted into the 14th Amendment via the "life, liberty and property" clause).

This was both legally invalid and extraodinarily irresponsible (given the context of the Great Depression and FDR's critical and necessary efforts to improve working conditions and wages in the United States).

The "court packing crisis" was a last ditch effort to rein in an extremist, activist court that was overstepping its constitutional authority in order to graft right-wing labor theories onto the United States Constitution.

FDR did the right thing, and the extremists finally backed down (although their progeny continue to shake their fists at FDR to this day).


q/q

Re: Where In The Constitution...
 

I love how whenever anyone disagrees with a supreme court decision, they call them "activist".

"Liberty of contract" follows directly from "liberty". They didn't say "liberty (except in contracts)", they said "liberty".

What is a contract? It is an agreement between two people to which they BOTH AGREE!!! To deny it IS to infringe on both of their liberty.

How many times do we have to go over this? Liberty of contract is NOT what caused the great depression. It was federal mismanagement of the money supply. Even Fed chiefs admit this! How can it possibly be argued?

Re: Where In The Constitution...
 

[ QUOTE ]
[ QUOTE ]
I think you have to go back to Gibbons vs Ogden and move forward from there too.

[/ QUOTE ]

You might also want to go back to McCulloch v. Maryland (which was actually a cited precendential case for Gibbons). I won't get into the details, but one of the major holdings was that Congress can do anything not restricted by the Constitution, rather than limiting Congress's powers to those enumerated. And this was before the opinion's discussion of the Necessary and Proper Clause.

The expansive view of the Commerce Clause was made possible in large part to this interpretation of Congress's powers.

[/ QUOTE ]

How the hell could the Court have decided this? Doesn't the meaning they inferred clash directly with the word "enumerated", which as I understand it being used means "completely specified"?

Re: Where In The Constitution...
 

Great point OP. Congress isn't allowed to delegate its authority either, yet they have delegated to numerous agencies that were never supposed to be federal agencies based upon original intent.

We have added more federal laws in 30 years than the previous 200. 99% of which should have been regulated by the states.

Re: Where In The Constitution...
 

I'd just like to add something.

If the rationale (Constitutional justification, that is) behind the Controlled Substances Act is the Commerce Clause and its regulatory powers, then the penalties later attached to the Controlled Substances Act are penalties attendant to attemps to regulate.

Does anyone not think it bizarre, as well as draconian, that any regulatory efforts should be attended by the following penalties for violation? (penalties bolded below)

"(b) Penalties
Except as otherwise provided in section 849, 859, 860, or 861 of this title, any person who violates subsection (a) of this section shall be sentenced as follows:

(1)
(A) In the case of a violation of subsection (a) of this section involving -
(i) 1 kilogram or more of a mixture or substance containing a detectable amount of heroin;
(ii) 5 kilograms or more of a mixture or substance containing a detectable amount of -
(I) coca leaves, except coca leaves and extracts of coca leaves from which cocaine, ecgonine, and derivatives of ecgonine or their salts have been removed;
(II) cocaine, its salts, optical and geometric isomers, and salts of isomers;
(III) ecgonine, its derivatives, their salts, isomers, and salts of isomers; or
(IV) any compound, mixture, or preparation which contains any quantity of any of the substances referred to in subclauses (I) through (III);
(iii) 50 grams or more of a mixture or substance described in clause (ii) which contains cocaine base;
(iv) 100 grams or more of phencyclidine (PCP) or 1 kilogram or more of a mixture or substance containing a detectable amount of phencyclidine (PCP);
(v) 10 grams or more of a mixture or substance containing a detectable amount of lysergic acid diethylamide (LSD);
(vi) 400 grams or more of a mixture or substance containing a detectable amount of N-phenyl-N- ( 1- ( 2-phenylethyl ) -4-piperidinyl ) propanamide or 100 grams or more of a mixture or substance containing a detectable amount of any analogue of N-pheny propanamide;
(vii) 1000 kilograms or more of a mixture or substance containing a detectable amount of marihuana, or 1,000 or more marihuana plants regardless of weight; or
(viii) 100 grams or more of methamphetamine, its salts, isomers, and salts of its isomers or 1 kilogram or more of a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers, or salts of its isomers;


such person shall be sentenced to a term of imprisonment which may not be less than 10 years or more than life and if death or serious bodily injury results from the use of such substance shall be not less than 20 years or more than life, a fine not to exceed the greater of that authorized in accordance with the provisions of title 18 or $4,000,000 if the defendant is an individual or $10,000,000 if the defendant is other than an individual, or both. If any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment which may not be less than 20 years and not more than life imprisonment and if death or serious bodily injury results from the use of such substance shall be sentenced to life imprisonment, a fine not to exceed the greater of twice that authorized in accordance with the provisions of title 18 or $8,000,000 if the defendant is an individual or $20,000,000 if the defendant is other than an individual, or both. If any person commits a violation of this subparagraph or of section 849, 859, 860, or 861 of this title after two or more prior convictions for a felony drug offense have become final, such person shall be sentenced to a mandatory term of life imprisonment without release and fined in accordance with the preceding sentence. Any sentence under this subparagraph shall, in the absence of such a prior conviction, impose a term of supervised release of at least 5 years in addition to such term of imprisonment and shall, if there was such a prior conviction, impose a term of supervised release of at least 10 years in addition to such term of imprisonment. Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person sentenced under this subparagraph. No person sentenced under this subparagraph shall be eligible for parole during the term of imprisonment imposed therein. "

http://www.fda.gov/opacom/laws/cntrlsub/cntlsbd.htm

So apparently this is what an expansive interpretation of the Commerce Clause has led to?

Re: Where In The Constitution...
 

[ QUOTE ]
How many times do we have to go over this? Liberty of contract is NOT what caused the great depression. It was federal mismanagement of the money supply. Even Fed chiefs admit this! How can it possibly be argued?

[/ QUOTE ]

What do you mean by "federal" mismanagement?

Re: Where In The Constitution...
 

[ QUOTE ]
[ QUOTE ]
How many times do we have to go over this? Liberty of contract is NOT what caused the great depression. It was federal mismanagement of the money supply. Even Fed chiefs admit this! How can it possibly be argued?

[/ QUOTE ]

What do you mean by "federal" mismanagement?

[/ QUOTE ]

I meant to say "the fed's". Ma bad.

Re: Where In The Constitution...
 

[ QUOTE ]
I also think part of it was when the supreme court was reprimanded by FDR for trying to block his new deal legislation. When he threatened to pack the court with his own judges then folded and passed new deal legislation. Even though they initially thought it to be outside the bounds of the national government. Things have not been the same since. I could be wrong on the historical ramifications of this event. But I am pretty sure this is accurate though.

[/ QUOTE ]


One of a LONG LONG list of devastating political ploys initiated by FDR. If there were one historical figure I could travel back in time and strangle at birth it would that scumbag.
Obv many of the idiotic policies he championed could have come about anyway but I can dream right?

Re: Where In The Constitution...
 

[ QUOTE ]
[ QUOTE ]
[ QUOTE ]
I think you have to go back to Gibbons vs Ogden and move forward from there too.

[/ QUOTE ]

You might also want to go back to McCulloch v. Maryland (which was actually a cited precendential case for Gibbons). I won't get into the details, but one of the major holdings was that Congress can do anything not restricted by the Constitution, rather than limiting Congress's powers to those enumerated. And this was before the opinion's discussion of the Necessary and Proper Clause.

The expansive view of the Commerce Clause was made possible in large part to this interpretation of Congress's powers.

[/ QUOTE ]

How the hell could the Court have decided this? Doesn't the meaning they inferred clash directly with the word "enumerated", which as I understand it being used means "completely specified"?

[/ QUOTE ]

That sounds baffling to me as well.

On a related note, I recall reading somewhere the following contention:

that nowhere in the Constitution is the judicial branch given the power to rule on the interpretation of the Constitution. Accordingly, debate about Constitutional interpretation should take place in the open instead of behind closed judge's chamber doors, and the People rather than judges would get to decide on the interpretation. So maybe Congress would debate it and then vote on it (and the People would take Congressman's positions into account when voting for them).

The contention also said that the U.S. Supreme Court had been deciding matters of Constitutional interpretation for so long a period that nobody now questions it - but that that authority is just not present in the Constitution. It went on (if I recall) to say that the Founders did not intend for government to provide the check on government - that the People were supposed to provide the check on government and to keep government in line with the Constitutional parameters.

Anyone else ever hear of this or have any information on this?

Re: Where In The Constitution...
 

Marbury v Madison

Re: Where In The Constitution...
 

It appeared that the Supreme Court was on the right track in interpreting the Commerce Clause until this [censored] case came up:

In U.S. v. Morrison the Supreme Court struck down a provision of the Violence Against Women Act that would allow them to bring civil suites in federal court.
In U.S. v. Lopez the court struck down the Gun Free School Zones Act because it was beyond Congress' Commerce Clause authority.

...and then came the Raich case.

(It is also interesting to note that Congress passed the Civil Rights Act under the authority of the Commerce Clause.)

Re: Where In The Constitution...
 

[ QUOTE ]
[ QUOTE ]
I think you have to go back to Gibbons vs Ogden and move forward from there too.

[/ QUOTE ]

You might also want to go back to McCulloch v. Maryland (which was actually a cited precendential case for Gibbons). I won't get into the details, but one of the major holdings was that Congress can do anything not restricted by the Constitution, rather than limiting Congress's powers to those enumerated. And this was before the opinion's discussion of the Necessary and Proper Clause.

The expansive view of the Commerce Clause was made possible in large part to this interpretation of Congress's powers.

[/ QUOTE ]

This is not an accurate summary of McCulloch, which states in part:

[ QUOTE ]
This Government is acknowledged by all to be one of enumerated powers. The principle that it can exercise only the powers granted to it would seem too apparent to have required to be enforced by all those arguments which its enlightened friends, while it was depending before the people, found it necessary to urge; that principle is now universally admitted. But the question respecting the extent of the powers actually granted is perpetually arising, and will probably continue to arise so long as our system shall exist. In discussing these questions, the conflicting powers of the General and State Governments must be brought into view, and the supremacy of their respective laws, when they are in opposition, must be settled.

[/ QUOTE ]

The full text of the opinion can be found here.

Re: Where In The Constitution...
 

[ QUOTE ]
Although I'm not a big fan of original intent as a guiding principle to constitional law, it's worth noting that the original intent of the commerce clause was almost certainly to prevent interstate tariffs, NOT to give the federal govt power to regulate every minute aspect of the economy

[/ QUOTE ]

In this case, even ignoring original intent, there's no sane distortion of the commerce clause that allows the War on Drugs like it is. The Religious Right Constitution Party acknowledges this. (which makes them far more palatable than most of the Religious Right)

Re: Where In The Constitution...
 

[ QUOTE ]
Nope, you nailed it. If I were a libertarian, the "Court Packing Scheme" would be the single worst political event ever.

[/ QUOTE ]

The man should have been impeached, but no I consider the 17th Amedment to be the worst. If Senators were still appointed by the state legislatures, FDR couldn't have gotten away with it. Removing the state governments' power to block actions of the federal government completely destroyed the system of checks and balances, inevitably leading to things like the "Court Packing Scheme."

Re: Where In The Constitution...
 

[ QUOTE ]
"Liberty of contract" follows directly from "liberty".

[/ QUOTE ]

"Liberty of contract" is a judicial turn of phrase, by which right-wing activists meant "all federal and state regulation of commercial labor agreements is hereby judicially nullified".

The basic idea is that by attaching the word "liberty" to a theory of unregulated servitude, the right-wing figured they could get away with reading just about any anti-labor idea they wanted into the United States Constitution.

They were wrong, and they lost.


q/q

Re: Where In The Constitution...
 

[ QUOTE ]
[ QUOTE ]
"Liberty of contract" follows directly from "liberty".

[/ QUOTE ]

"Liberty of contract" is a judicial turn of phrase, by which right-wing activists meant "all federal and state regulation of commercial labor agreements is hereby judicially nullified".

The basic idea is that by attaching the word "liberty" to a theory of unregulated servitude, the right-wing figured they could get away with reading just about any anti-labor idea they wanted into the United States Constitution.

They were wrong, and they lost.


q/q

[/ QUOTE ]

"They" are not lost, they are correct.

Did you read my discussion of what a contract is? You clearly view it often as some kind of immoral servitude. A contract by definition can only make both parties situations better than they were before, otherwise they wouldn't sign!

ALL labor regulations make it less likely that the least skilled workers will be employed. The regulations you support prohibit those people from working when they would otherwise choose to.

How any interpretation of the word "liberty" doesn't include freedom to come to binding agreements with others is totally beyond me. Put another way, the people of a society in which you are denied the right to come to binding agreements with others can hardly be said to have "liberty".

The constitution does not say: "liberty (except in contracts)". It would have been judicial activism to deny liberty of contract, not the other way around.

Edit to remove unhelpful antagonistic comment.

Re: Where In The Constitution...
 

[ QUOTE ]
is there anything else in the Constitution that empowers Congress to pass laws such as the 1970 Controlled Substances Act or the later Penalty law with regards to it?

[/ QUOTE ]

Why do you need multiple provisions?

Let me just play devil's advocate for a moment. Why are all of my original meaning-ers so quick to argue that the interpretation of the interstate commerce goes beyond original meaning? The meaning of commerce at the time of the writing of the constitution was actually broader than what we know it to be today. Commerce included economic activity, but it also included substantial social activities as well.

I can see the argument about home-grown and home-used pot, but when we're talking about goods that are clearly moving between state lines and being sold, how can you argue that Congress doesn't have the power to regulate that activity?

Re: Where In The Constitution...
 

[ QUOTE ]
[ QUOTE ]
is there anything else in the Constitution that empowers Congress to pass laws such as the 1970 Controlled Substances Act or the later Penalty law with regards to it?

[/ QUOTE ]

Why do you need multiple provisions?

Let me just play devil's advocate for a moment. Why are all of my original meaning-ers so quick to argue that the interpretation of the interstate commerce goes beyond original meaning? The meaning of commerce at the time of the writing of the constitution was actually broader than what we know it to be today. Commerce included economic activity, but it also included substantial social activities as well.

I can see the argument about home-grown and home-used pot, but when we're talking about goods that are clearly moving between state lines and being sold, how can you argue that Congress doesn't have the power to regulate that activity?

[/ QUOTE ]

Firstly, I'm not requiring multiple provisions; I just want to know if there are any others (since I'm not very familiar with any of this stuff). I'm also not arguing that Congress doesn't have the power to regulate actual interstate commerce.

Secondly: since Congress has that power to regulate interstate commerce, why should that be extended to the power to regulate goods sold within state lines? If someone grows 10 acres of marijuana but sells it entirely within state, why should the federal power come into play? If someone else then moves it between state lines for purposes of sale, I can see why the federal government could claim power over that activity and step in at that point. It seems a stretch to me to claim that intrastate commerce affects interstate pricing and therefore falls under the same legal control of regulation of interstate commerce - a very large stretch, actually. This seems to be the argument the federal government used to prosecute someone growing his own marijuana for his own use - in that case, a specious argument if there ever was one, and an example of how the federal government and courts have stretched the purpose of the clause far beyond its intended or commonsense purpose.

I don't object to the clasuse itself if it is used for such things as tarrifs or what not which would be in keeping with regulation - I object to the immense expansion of powers derived from it - or perhaps better put, derived from stretching it.

Thirdly, since the power given is to regulate, why are not penalties more in line with other generally regulated activities? The penalties are very disproprtionate for mere violation of regulation; the penalties are commensurate instead with punishment for very serious crimes - not for merely breaking a regulation. So it seems to me that if the purpose of the Commerce Clause is to regulate, then powers of enforcement and penalties derived from it should be in keeping with most other generally regulated activities - the penalties should not be on a par with those for armed bank robbery or second-degree murder or whatever.

That's my take thus far, and admittedly I am in the preocess of becoming informed about such things and thinking about them. Thanks for your input (and thanks as well to all others who have also been helpful and informative in this thread).

Re: Where In The Constitution...
 

[ QUOTE ]
Secondly: since Congress has that power to regulate interstate commerce, why should that be extended to the power to regulate goods sold within state lines? If someone grows 10 acres of marijuana but sells it entirely within state, why should the federal power come into play? If someone else then moves it between state lines for purposes of sale, I can see why the federal government could claim power over that activity and step in at that point. It seems a stretch to me to claim that intrastate commerce affects interstate pricing and therefore falls under the same legal control of regulation of interstate commerce - a very large stretch, actually. This seems to be the argument the federal government used to prosecute someone growing his own marijuana for his own use - in that case, a specious argument if there ever was one, and an example of how the federal government and courts have stretched the purpose of the clause far beyond its intended or commonsense purpose.


[/ QUOTE ]

I tend to agree, though let's not act as though the exception (regulated good being produced and used solely within the borders of the state) is the rule.

[ QUOTE ]
Thirdly, since the power given is to regulate, why are not penalties more in line with other generally regulated activities?

[/ QUOTE ]

I have no idea what this means. The power is not to regulate interstate commerce within a particular set of confines.

[ QUOTE ]
The penalties are very disproprtionate for mere violation of regulation; the penalties are commensurate instead with punishment for very serious crimes - not for merely breaking a regulation.

[/ QUOTE ]

I think you are confusing "Regulate" interstate commerce with "Federal Regulations." Two very different things. One involves Congress, one (generally) does not. Again, just because Congress chooses to regulate the interstate sale of drugs in a more harsh way than, say, the interstate sale of automobiles doesn't mean that they are overstepping their powers.

It sounds to me like you are taking two distinct issues and blending them together in an inappropriate way. There is a question of whether congress has the power/authority to regulate the sale of narcotics and there is a secondary question of whether we think the laws enacted are appropriately harsh. You are making the mistake of suggesting that because you think the laws are inappropriately harsh that Congress is overstepping their granted power/authority.

Re: Where In The Constitution...
 

[ QUOTE ]
[ QUOTE ]
Secondly: since Congress has that power to regulate interstate commerce, why should that be extended to the power to regulate goods sold within state lines? If someone grows 10 acres of marijuana but sells it entirely within state, why should the federal power come into play? If someone else then moves it between state lines for purposes of sale, I can see why the federal government could claim power over that activity and step in at that point. It seems a stretch to me to claim that intrastate commerce affects interstate pricing and therefore falls under the same legal control of regulation of interstate commerce - a very large stretch, actually. This seems to be the argument the federal government used to prosecute someone growing his own marijuana for his own use - in that case, a specious argument if there ever was one, and an example of how the federal government and courts have stretched the purpose of the clause far beyond its intended or commonsense purpose.


[/ QUOTE ]

I tend to agree, though let's not act as though the exception (regulated good being produced and used solely within the borders of the state) is the rule.

[ QUOTE ]
Thirdly, since the power given is to regulate, why are not penalties more in line with other generally regulated activities?

[/ QUOTE ]

I have no idea what this means. The power is not to regulate interstate commerce within a particular set of confines.

[ QUOTE ]
The penalties are very disproprtionate for mere violation of regulation; the penalties are commensurate instead with punishment for very serious crimes - not for merely breaking a regulation.

[/ QUOTE ]

I think you are confusing "Regulate" interstate commerce with "Federal Regulations." Two very different things. One involves Congress, one (generally) does not. Again, just because Congress chooses to regulate the interstate sale of drugs in a more harsh way than, say, the interstate sale of automobiles doesn't mean that they are overstepping their powers.

It sounds to me like you are taking two distinct issues and blending them together in an inappropriate way. There is a question of whether congress has the power/authority to regulate the sale of narcotics and there is a secondary question of whether we think the laws enacted are appropriately harsh. You are making the mistake of suggesting that because you think the laws are inappropriately harsh that Congress is overstepping their granted power/authority.

[/ QUOTE ]

Yes, I am addressing two separate issues (and I'm not trying to blend them; they just seem worthy of being placed in the same discussion).

I think Congress is overstepping its bounds with some aspects of stretching the clause - that's one issue.

The other issue is that there are many kinds of federal regulations by which the federal government regiulates things - except for the drug laws, I can't think of any regulatiuons for which the penalties are on a par with armed bank robbery or second degree murder. It doesn't seem mete and it does seem draconian. So I'm not saying the federal government is overstepping its bounds by imposing draconian penalties - the issue of overstepping bounds turns on overly expansive interpretation of the Commerce Clause. Rather I'm saying the penalties are way out of line with any other attempts to regulate things. Armed bank robbery is not a "regulated activity" yet a certain regulated activity carries the same sort of penalties armed bank robbery carries - if that regulated activity is drugs. I'm saying this does not seem appropriate. Violation of regulation of trade should not carry the same penalties as severe or heinous crimes.

Re: Where In The Constitution...
 

[ QUOTE ]
Rather I'm saying the penalties are way out of line with any other attempts to regulate things. Armed bank robbery is not a "regulated activity" yet a certain regulated activity carries the same sort of penalties armed bank robbery carries - if that regulated activity is drugs

[/ QUOTE ]

I don't see why you are trying to make a difference between "regulated" and "criminalized." Criminalizing is just one form of regulation. You seem to think that they are two entirely different things.

As a side note, I'm curious where you think the power of the federal government to criminalize bank robbery comes from (i.e. from where, specifically, in the constitution can the federal government derive that power.)

They certainly have the power to
"To coin money, regulate the value thereof"
and can
"provide for the punishment of counterfeiting the securities and current coin of the United States"

but counterfeiting is different that robbery and coined money can only be "regulated."

Re: Where In The Constitution...
 

[ QUOTE ]
[ QUOTE ]
[ QUOTE ]
I think you have to go back to Gibbons vs Ogden and move forward from there too.

[/ QUOTE ]

You might also want to go back to McCulloch v. Maryland (which was actually a cited precendential case for Gibbons). I won't get into the details, but one of the major holdings was that Congress can do anything not restricted by the Constitution, rather than limiting Congress's powers to those enumerated. And this was before the opinion's discussion of the Necessary and Proper Clause.

The expansive view of the Commerce Clause was made possible in large part to this interpretation of Congress's powers.

[/ QUOTE ]

This is not an accurate summary of McCulloch, which states in part:

[ QUOTE ]
This Government is acknowledged by all to be one of enumerated powers. The principle that it can exercise only the powers granted to it would seem too apparent to have required to be enforced by all those arguments which its enlightened friends, while it was depending before the people, found it necessary to urge; that principle is now universally admitted. But the question respecting the extent of the powers actually granted is perpetually arising, and will probably continue to arise so long as our system shall exist. In discussing these questions, the conflicting powers of the General and State Governments must be brought into view, and the supremacy of their respective laws, when they are in opposition, must be settled.

[/ QUOTE ]

The full text of the opinion can be found here.

[/ QUOTE ]

Yes, the case had three major points. The section you quoted was regarding major point #2. I was summarizing major point #3, which had to do with the Court pointing out that the Constitution is a constitution, rather than a statute, and had to be interpreted as such as not requiring an accurate detail of all of the powers allowed to the Congress (thus allowing basically everything not openly forbidden by the letter of the Constitution).

I freely admit I'm no ConLaw scholar (I'm just a 1L), but this was the editor of my ConLaw book's interpretation, as well as my ConLaw professor's, of this point of the case.

Re: Where In The Constitution...
 

[ QUOTE ]
[ QUOTE ]
Rather I'm saying the penalties are way out of line with any other attempts to regulate things. Armed bank robbery is not a "regulated activity" yet a certain regulated activity carries the same sort of penalties armed bank robbery carries - if that regulated activity is drugs

[/ QUOTE ]

I don't see why you are trying to make a difference between "regulated" and "criminalized." Criminalizing is just one form of regulation. You seem to think that they are two entirely different things.

[/ QUOTE ]

"Regulate" seems (to me) to be more in keeping with setting tarrifs, measures, weights, speed limits, tradfe policies, etc. along with some reasonable penalties for infraction.



[ QUOTE ]
As a side note, I'm curious where you think the power of the federal government to criminalize bank robbery comes from (i.e. from where, specifically, in the constitution can the federal government derive that power.)

[/ QUOTE ]

That's a good question, and I don't know the answer. Where does it come from? My guess would be that it would be solely in the purview of the states.

[ QUOTE ]
They certainly have the power to
"To coin money, regulate the value thereof"
and can
"provide for the punishment of counterfeiting the securities and current coin of the United States"

[/ QUOTE ]

Ok.

[ QUOTE ]
but counterfeiting is different that robbery and coined money can only be "regulated."

[/ QUOTE ]

Not sure I follow you.

Re: Where In The Constitution...
 

[ QUOTE ]
"Regulate" seems (to me) to be more in keeping with setting tarrifs, measures, weights, speed limits, tradfe policies, etc. along with some reasonable penalties for infraction.

[/ QUOTE ]

Well, I think maybe we've figured out the confusion. You have a very different understanding of the word "regulate" than I.

[ QUOTE ]
That's a good question, and I don't know the answer. Where does it come from? My guess would be that it would be solely in the purview of the states.


[/ QUOTE ]

Your guess about it being in the purview of the states is wrong. The power to CRIMINALIZE bank robbery at the federal level comes from....(drumroll)....the interstate commerce clause (which only allows Congress to "regulate"...)

Ultimately, my point is that not only do you have a twisted definition of the word "regulate" as it is used in common parlance, you also have a distorted view of how that term has been consistently read in the constitutional sense. "Regulating" includes criminalizing and has for quite some time.

Re: Where In The Constitution...
 

[ QUOTE ]
[ QUOTE ]
"Regulate" seems (to me) to be more in keeping with setting tarrifs, measures, weights, speed limits, tradfe policies, etc. along with some reasonable penalties for infraction.

[/ QUOTE ]

Well, I think maybe we've figured out the confusion. You have a very different understanding of the word "regulate" than I.

[ QUOTE ]
That's a good question, and I don't know the answer. Where does it come from? My guess would be that it would be solely in the purview of the states.


[/ QUOTE ]

Your guess about it being in the purview of the states is wrong. The power to CRIMINALIZE bank robbery at the federal level comes from....(drumroll)....the interstate commerce clause (which only allows Congress to "regulate"...)

Ultimately, my point is that not only do you have a twisted definition of the word "regulate" as it is used in common parlance, you also have a distorted view of how that term has been consistently read in the constitutional sense. "Regulating" includes criminalizing and has for quite some time.

[/ QUOTE ]

OK, so...the power to regulate banking at the federal level comes from the Commerce Clause. OK, fine. But that applies to aspects of banking which involve trade or commerce, does it not? It does not automatically apply to all other aspects of banking, as well. It can't rightly apply to ALL aspects of banking...such as office design and decor choices. It only applies to aspects of banking involving commerce. Bank robbery is not interstate commerce. Hence the right of the federal government to regulate activities involving interstate commerce ought not to apply to it.

What am I missing here, if anything? And doesn't my line of reasoning make sense? Just because an industry has some aspects which may fall under interstate commerce, doesn't mean that everything within that industry falls under interstate commerce. Lawn maintenance and bank robbery don't have a blessed thing to do with interstate commerce. You might as well use the Commerce Clause to regulate the type of bricks used to build banks, because banking involves interstate commerce, and banks are built of brick. This method of applying the clause seems to me to be stretching as well as illogical. The clause's purpose is to regulate interstate commerce, not to allow the federal government carte blanche to set regulations that don't involve interstate commerce just because an industry happens to engage in interstate commerce. The auto industry sells nationwide and engages in interstate commerce, so the federal government can essentially regulate ANYTHING within the auto industry (?)...or just the aspects that are involved in interstate commerce? Only the latter application seems to make any sense. By the former application, the federal government ought to be able to regulate Ford's motor company's pension plans, just because companies in that industry sell across state lines. But that is nonsense.

Re: Where In The Constitution...
 

The argument for banks, I think, is that money supply to and from banks is an act of interstate commerce and that actions that interfere with that flow of money supply (i.e. bank robbery) would fall under the interstate commerce clause as well. That being said, I don't want to derail this thread with a discussion of bank robbery...the ONLY reason I used that as an example was because in an earlier post when trying to differentiate between criminilizing and regulating, you made it clear that bank robbery was clearly different than drug trade and that criminilizing bank robbery made sense. Lo and Behold Congress' power to criminilize bank robbery comes from the exact same clause as does its power to criminilize drug trade.

Re: Where In The Constitution...
 

[ QUOTE ]
The argument for banks, I think, is that money supply to and from banks is an act of interstate commerce and that actions that interfere with that flow of money supply (i.e. bank robbery) would fall under the interstate commerce clause as well. That being said, I don't want to derail this thread with a discussion of bank robbery...the ONLY reason I used that as an example was because in an earlier post when trying to differentiate between criminilizing and regulating, you made it clear that bank robbery was clearly different than drug trade and that criminilizing bank robbery made sense. Lo and Behold Congress' power to criminilize bank robbery comes from the exact same clause as does its power to criminilize drug trade.

[/ QUOTE ]

Thank you for the explanation, and we don't have to dwell on the bank robbery example.

OK let's see...here is the text of the Commerce Clause:

""To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

The germane part says "to regulate Commerce...among the several states".

I think a reasonable interpretation would be that that includes: commerce, trade...not "any conceivable activity that somehow touches on interstate commerce directly or indirectly, closely or remotely."

I don't believe that some of the things I've read, where the Commerce Clause was applied, had anything other than very remote connections to interstate commerce. ( So I'm really saying: thanks for the informative help...and don't you also feel that the use of the commerce clause as justification for some things has been way overstepped? And isn't it stretching to place activities which are intra-state, under the purview of the commerce clause, on the grounds that they somehow affect interstate prices?

The way I see it, the federal government has the right to regulate interstate commerce itself...not anything and everything that may somehow be related to interstate commerce. That's how the clause reads, and that's how I think it should be read.

Re: Where In The Constitution...
 

I actually think the language of the Constitution gives congress the power to regulate such things as bank robbery and drug traffic. I don't think that they are doing a particularly good job regulating drug traffic, but the power is certainly there (though, I think things that never enter into the stream of commerce should be exempt -- homegrown for home use.)

[ QUOTE ]
The way I see it, the federal government has the right to regulate interstate commerce itself...not anything and everything that may somehow be related to interstate commerce

[/ QUOTE ]

Is selling drugs from one person in California to another person in Idaho an act of interstate commerce? If no, what part of the definition of "interstate commerce" is missing?

Re: Where In The Constitution...
 

[ QUOTE ]
Did you read my discussion of what a contract is? You clearly view it often as some kind of immoral servitude. A contract by definition can only make both parties situations better than they were before, otherwise they wouldn't sign!

ALL labor regulations make it less likely that the least skilled workers will be employed. The regulations you support prohibit those people from working when they would otherwise choose to.

[/ QUOTE ]

That is a statement of economic and social ideology, not a Constitutional argument.

As I said before: the <u>Lochner</u>-era cases (driven by right-wing social and economic ideology, rather than Constitutional accuracy) were activist to their core, and FDR was right to finally put a stop to it and restore Congress' regulatory authority to its proper Constitutional position.

If you have a problem with how the Constitution is written, then the proper course of action is to amend it.

But a Constitutional Amendment barring all federal and state labor regulation would go down in flames, because the American people reject it wholeheartedly. The right-wing is very aware of that (hence, the backdoor / judicial activist approach).

So at this point, you're SOL. The Constitution doesn't say what your ideology wants it to say, and you don't have the public support to change it.

Looks to me like the American system of government is working pretty well in this case.

[ QUOTE ]
How any interpretation of the word "liberty" doesn't include freedom to come to binding agreements with others is totally beyond me.

[/ QUOTE ]

Translation: "liberty", as used in the context of the 14th Amendment, should be read to prohibit any and all federal or state labor protections.

Yes, I understand what your position here is. Restating it in 15 different forms only serves to repeat your error.

[ QUOTE ]
Put another way, the people of a society in which you are denied the right to come to binding agreements with others can hardly be said to have "liberty".

[/ QUOTE ]

Translation: as long as America has labor laws or protections for labor unions, we do not have "liberty".

Maybe if you restate your error 1000 more times, it will become true.

Good luck with that agenda.


q/q

Re: Where In The Constitution...
 

[ QUOTE ]
I actually think the language of the Constitution gives congress the power to regulate such things as bank robbery and drug traffic. I don't think that they are doing a particularly good job regulating drug traffic, but the power is certainly there (though, I think things that never enter into the stream of commerce should be exempt -- homegrown for home use.)

[ QUOTE ]
The way I see it, the federal government has the right to regulate interstate commerce itself...not anything and everything that may somehow be related to interstate commerce

[/ QUOTE ]

Is selling drugs from one person in California to another person in Idaho an act of interstate commerce? If no, what part of the definition of "interstate commerce" is missing?

[/ QUOTE ]

Of course it is interstate commerce. But selling drugs from one person in San Diego to another person in San Franscisco isn't.