Where In The Constitution...

[thirstyforwater]

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.)

[bobman0330]

[ 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.

[AlexM]

[ 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)

[AlexM]

[ 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."

[QuadsOverQuads]

[ 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

[ojc02]

[ 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.

[elwoodblues]

[ 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?

[John Kilduff]

[ 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).

[elwoodblues]

[ 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.

[John Kilduff]

[ 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.