Why is the Controlled Substances Act constitutional?

[bascule]

In light of this thread, I was reminded of something I've been curious about for awhile...

 

Where in the Constitution is the federal government granted power to regulate "substances", especially in cases where they aren't crossing state lines?

 

Why aren't drugs a states rights issue?

[moth]

i think it has to do with taxes. and of course "protecting children" here's a link http://www.druglibrary.org/schaffer/hemp/taxact/t9.htm

[Mr Skeptic]

Apparently, one of the justifications was that growing your own marijuana meant there is less that gets brought in from elsewhere and so affects interstate commerce so they can regulate it.

 

I think they need to get pre-schoolers to read the constitution to Supreme Court Justices. Knock some sense into them.

[bascule]

Apparently, one of the justifications was that growing your own marijuana meant there is less that gets brought in from elsewhere and so affects interstate commerce so they can regulate it.

 

But what about cases where it isn't going across state lines?

[DJBruce]

There is a large misconception about the Interstate Commerce Clause. The product being regulated does not directly have to be sold across state lines. According to the Supreme Court in Wickard v. Fillburn, "The commerce power is not confined in its exercise to the regulation of commerce among the states. It extends to those activities intrastate which so affect interstate commerce, or the exertion of the power of Congress over it, as to make regulation of them appropriate means to the attainment of a legitimate end, the effective execution of the granted power to regulate interstate commerce." So if there is any way in which the intrastate sale of any narcotic or controlled substance effects a interstate market it can constitutionally be regulated. So for example if the intrastate sale of marijuana effects the interstate market of Doritos or pipes then it could be registered. The legality of the Controlled Substance Act is bolstered even more by the fact that it is common knowledge that illegal substances are often sold across state lines. As shown by the Supreme Court's majority opinion, "One need not have a degree in economics to understand why a nationwide exemption for the vast quantity of marijuana (or other drugs) locally cultivated for personal use (which presumably would include use by friends, neighbors, and family members) may have a substantial impact on the interstate market for this extraordinarily popular substance."

 

Although the Supreme Court's view of the Interstate Commerce Clause has changed over time the above view is still prevalent in court opinions. For example the court sited Wickard v. Fillburn heavily in the 2005 case Gonzales v. Raich which revolved around the use of medical marijuana and the Controlled Substance Act. The majority opinion the Court along with the plaintiff found that the Controlled Substance Act raised not Constitutional question.

 

I have no doubt that there is more Judaical precedents and writings which explain the constitutionality of the issue. However, I think that this shows the Supreme Court, at least in the last one hundred years or so, has backed uses of the Interstate Commerce Clause similar to the Controlled Substance Act.

Edited November 14, 2009 by DJBruce
Corrected Grammar and Spelling Errors

[bascule]

That does not answer the question of why the government doesn't solely regulate the sale of substances across state lines, but instead wants to regulate substances down to the level of individuals producing substances for their own consumption.

 

I cannot grow a marijuana plant in my own house for my own personal consumption. It would never leave my house. What in the Constitution grants the federal government the right to regulate that? In what way can something I do in the privacy of my own home ever possibly be construed under the auspices of inter-state commerce? Not only is there no inter-state (much less inter-house) distribution involved, there is no commerce involved.

 

How the hell is that not a states rights issue?

 

And note to pseudolibertarian teabaggers: if you do not stand behind the right of a person to do something within the comforts of their own home which does not have a direct effect on any other individuals, you are not a libertarian. You are a poseur.

 

In regard to policing substances under the auspices of interstate commerce: it could be a crime when crossing borders. That's the entire point of the interstate commerce provisions. But if it never leaves the domicile of a single individual, who produces something solely for their own use? HOW THE HELL DO YOU CONSTRUE IT AS INTERSTATE COMMERCE? It's not interstate. It's not commerce. PERIOD.

 

As far as I'm concerned this is little more than an unconstitutional power grab by the federal government.

Edited November 14, 2009 by bascule

[moth]

it's not an interstate commerce issue it's a 16th amendment issue http://en.wikipedia.org/wiki/Sixteenth_Amendment_to_the_United_States_Constitution

 

"Other Constitutional provisions regarding taxes

 

The Congress shall have power To lay and collect Taxes, Duties, Imposts and Excises [ . . . ] but all Duties, Imposts and Excises shall be uniform throughout the United States "

 

excises means http://en.wikipedia.org/wiki/Excise "may be defined broadly as an inland tax on the production or sale of a good,"

 

it's the same way the fed regulates automatic weapons and narcotics in general.

 

the story i've been told is you have to have a tax stamp to be in possesion of pot, but you have to be in possesion of pot to get the tax stamp. catch-22

[bascule]

the story i've been told is you have to have a tax stamp to be in possesion of pot, but you have to be in possesion of pot to get the tax stamp. catch-22

 

The Supreme Court ruled tax stamps were unconstitutional in Leary v US. Marijuana was rendered illegal due to state laws until this case, which made marijuana legal in 1968. It was rendered illegal again by the Controlled Substances Act in 1970.

[iNow]

it's not an interstate commerce issue it's a 16th amendment issue http://en.wikipedia.org/wiki/Sixteenth_Amendment_to_the_United_States_Constitution

If we follow the condition explained above by bascule, I really don't think the 16th amendment is applicable. His scenario noted the instance of personal growth for personal use... the plant inside his own residence which never leaves... and hence there is ZERO commerce, and consequently ZERO income.

 

With that condition as given, the arguments based on Commerce Clause and the power of congress to excise taxes (income or otherwise) are irrelevant.

 

There is no commerce (whether intra or inter-state), there is no income to be taxed (purely personal cultivation and use), hence another argument is required to demonstrate where and why the federal government has the authority to act in this manner.

 

No income --> No commerce --> No federal authority.

[ParanoiA]

Most of the language that establishes the constitutionality of the CSA can be found in the Congressonal findings and declarations in 21 U.S.C. § 801. I think this section is making its case for qualification under the Commerce Clause.

 

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 a substantial 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
  
• © 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.

 

(6) Federal control of the intrastate incidents of the traffic in controlled substances is essential to the effective control of the interstate incidents of such traffic.

 

(7) The United States is a party to the Single Convention on Narcotic Drugs, 1961, and other international conventions designed to establish effective control over international and domestic traffic in controlled substances. Search this title:

 

The Commerce Clause, which is regularly exploited to expand federal power and will continue to until we revolt, is used in conjuction with the Necessary and Proper Clause to circumvent the absence of an enumerated power to regulate what we produce and ingest on our own.

 

Looking at the language of this code, it appears that they have rationalized regulating Bascule's right to grow a damn fine marijuana plant and smoke it all for himself (Bogart).

 

Per #3-A, it seems Bascule can't be trusted to manufacture the substance since other people will then turn it into commerce. Since he cannot be distinguished from traders, he is prohibited. Per #4, I may be stretching it a bit, but it sounds like they're saying that if Bascule merely possesses such a thing, that swells the general market demand, and thus interstate and intrastate commerce.

 

This kind of application of the Commerce Clause nullifies a bulk of the entire constitution. By the logic above, if I build my own car I can affect the commerce of the car market and could be restricted from it.

 

Anything you do or possess that can be indirectly tied to some kind of commerce, somewhere, can be regulated. Building furniture for myself will effect the furniture market. I will not buy furniture that I built so those sales will not happen AND, that I even own furniture contributes to the demand of furniture.

 

This is not the only documentation arrangement that establishes or justifies constitutional authority I'm sure, but it's a major piece of the CSA. Also note the "general welfare" comment on #2.

 

And note to pseudolibertarian teabaggers: if you do not stand behind the right of a person to do something within the comforts of their own home which does not have a direct effect on any other individuals, you are not a libertarian. You are a poseur.

 

Here, here.

[iNow]

Also note the "general welfare" comment on #2.

 

I, too, thought about Article 1, Section 8 of the constitution and its relation to "general welfare" of the public. However, my own conclusion is that this fails on two primary fronts.

 

One, that article describes Congress' ability to collect taxes and spend it for the general welfare (on things such as roads, military, healthcare, etc.). When we consider the scenario presented in this thread, where commerce and income are absent, there is nothing for Congress to tax, so (much like the commerce clause and 16th amendment) that argument is rendered moot.

 

Two, the science does not back-up the idea that this substance is detrimental to the health of the people, ergo it cannot be validly stated that their welfare is being protected by making use and possession illegal. It's non-sequitur.

 

Prohibition of alcohol required constitutional amendment, and I'd suggest that so, too, does prohibition of cannabis use and/or possession, especially when factors such as commerce, distribution, and income are removed.

 

 

Note: In case it is not clear already, I am not disagreeing with ParanoiA's point, but supplementing and reinforcing it.

[bascule]

Most of the language that establishes the constitutionality of the CSA can be found in the Congressonal findings and declarations in 21 U.S.C. § 801. I think this section is making its case for qualification under the Commerce Clause.

 

But wouldn't this only be applicable to cases where the "controlled substances" were crossing state lines?

[ParanoiA]

But wouldn't this only be applicable to cases where the "controlled substances" were crossing state lines?

 

No. If you notice there are 3 different places in that section alone that establish authority on Intrastate 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—

 

(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.

 

(6) Federal control of the intrastate incidents of the traffic in controlled substances is essential to the effective control of the interstate incidents of such traffic.

 

The commerce clause itself is also argued to establish regulatory authority over intrastate commerce based on the notion it has an effect on interstate commerce. The SCOTUS has ruled on this a few times, I think.

 

And check this out. We're apparently not the only ones in awe of this overreach when it comes to mary jane. And note this is Clarence Thomas seemingly siding with us:

 

http://en.wikipedia.org/wiki/Commerce_clause

 

The Commerce Clause has been the most widely interpreted clause in the Constitution' date=' making way for many laws which, some argue, contradict the original intended meaning of the Constitution. The Supreme Court Justice Clarence Thomas has gone so far as to state in his dissent to Gonzales v. Raich,

 

[i']“ Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything – and the federal Government is no longer one of limited and enumerated powers.[6][/i]

 

Virtually anything. So I guess Clarence isn't a "poseur" huh? That surprised me...

 

With a gashing hole like the commerce clause, at least how it's interpreted, who needs a constitution? What does it really do?

 

But then again...how would you find the authority for this health bill either?

Edited November 24, 2009 by ParanoiA

[bascule]

With a gashing hole like the commerce clause, at least how it's interpreted, who needs a constitution? What does it really do?

 

Indeed, and that's where I'm at.

 

Thanks for the additional background... particularly the quotes from Clarence Thomas.

[ParanoiA]

Just ran across this case, Wickard v Filburn (1942), in this book I'm reading which apparently upheld the power of congress to regulate activity which is used for personal consumption and never sold. This is the case that established the scope of congressional reach using the commerce clause that inhibits personal cultivation of marijuana. And anything else they decide to take from us...

 

Roscoe Filburn was a farmer who produced wheat in excess of the amount permitted. Filburn however, argued that because the excess wheat was produced for his private consumption on his own farm, it never entered commerce at all, much less interstate commerce[/i'], and therefore was not a proper subject of federal regulation under the Commerce Clause.

 

But his argument did not win out:

 

The issue was not how one characterized the activity as local' date=' but rather whether the activity "exerts a substantial economic effect on interstate commerce":

[/quote']

 

The Supreme Court subsequently held that' date=' as with the home grown wheat at issue in the present case, home grown marijuana is a legitimate subject of federal regulation because it competes with marijuana that moves in interstate commerce. As the Court explained in Gonzalez:

 

[i']Wickard thus establishes that Congress can regulate purely intrastate activity that is not itself “commercial,” in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.

 

Anyway, I remembered this discussion and felt compelled to share it. Wickard v Filburn..what a bitch.

[foodchain]

Just ran across this case, Wickard v Filburn (1942), in this book I'm reading which apparently upheld the power of congress to regulate activity which is used for personal consumption and never sold. This is the case that established the scope of congressional reach using the commerce clause that inhibits personal cultivation of marijuana. And anything else they decide to take from us...

 

I don't understand your position, are you against this simply because you find it unconstitutional, on what grounds is this. Plus I get confused by your wording because you take on an extremely libertarian position I think most will never agree to. Allowing people to become crack addicts will impact individual liberty on a social level outside of just the individual. Then again we do seem to be dominated by automobiles, but those happen to be of benefit to enough people as to be a null issue outside of gas prices.

[rogerxd45]

they use interstate commerce to extend their powers. they use it in gun regulation also

 

but remember we give them this power and on we have the power to take it away

[bascule]

Allowing people to become crack addicts will impact individual liberty on a social level outside of just the individual.

 

So will letting people get drunk. Yet for some reason that's legal.

 

All that aside, ParanoiA was linking to a case in which someone, growing food on their own property for their own use, was found to be in violation of a federal law, under the auspices of "Interstate Commerce". I'm not sure what horrible slippery slope of Constitutional Law lead SCOTUS to that decision.

[The Bear's Key]

All that aside, ParanoiA was linking to a case in which someone, growing food on their own property for their own use, was found to be in violation of a federal law, under the auspices of "Interstate Commerce".

I'd have to see a reliable source for that, could be a lot more to the story, as in a manner we're dealing with an extraordinary claim: a bunch of justices make a huge deal about a farmer growing edible crops for home use.

 

What's the context?

 

Did the farmer grow more and tried the "personal use" excuse when caught? Had the laws/regulations specified no one could grow extra for personal use, or did they specify an exception where farmers could do so -- but they just had to claim it ahead of time? More importantly, were the crops subsidized in any way by the public's tax money? If so, wouldn't it be a valid reason to place limits on the crops?

 

I agree that yes, it'd be utterly asinine if the Supreme Court justices had decided it's bad if a farmer on private land grows their own food. But I must see all the other details, like if the farmer had acted in a disingenuous manner. Who knows?

[bascule]

What's the context?

 

http://en.wikipedia.org/wiki/Wickard_v._Filburn

 

Wickard v. Filburn, 317 U.S. 111 (1942), was a U.S. Supreme Court decision that dramatically increased the power of the federal government to regulate economic activity. A farmer, Roscoe Filburn, was growing wheat to feed his chickens. The U.S. government had imposed limits on wheat production based on acreage owned by a farmer, in order to drive up wheat prices during the Great Depression, and Filburn was growing more than the limits permitted. Filburn was ordered to destroy his crops and pay a fine.

 

The Supreme Court, interpreting the United States Constitution's Commerce Clause (which permits the United States Congress to "regulate Commerce . . . among the several States") decided that, because Filburn's wheat growing activities reduced the amount of wheat he would buy for chicken feed on the open market, and because wheat was traded nationally, Filburn's production of more wheat than he was allotted was affecting interstate commerce, and so could be regulated by the federal government.

 

I'm not sure how you would extend this argument to the Controlled Substances Act though. There is no open market, so how would producing something within your own home for your own use affect interstate commerce? Indeed, the government is declaring the market illegal.

[ParanoiA]

I'd have to see a reliable source for that' date=' could be a lot more to the story, as in a manner we're dealing with an extraordinary claim: a bunch of justices make a huge deal about a farmer growing edible crops for home use.

 

What's the context?

 

Did the farmer grow more and tried the "personal use" excuse when caught? Had the laws/regulations specified no one could grow extra for personal use, or did they specify an exception where farmers could do so -- but they just had to claim it ahead of time? More importantly, were the crops subsidized in any way by the public's tax money? If so, wouldn't it be a valid reason to place limits on the crops?

 

I agree that yes, it'd be utterly asinine if the Supreme Court justices had decided it's bad if a farmer on private land grows their own food. But I must see all the other details, like if the farmer had acted in a disingenuous manner. Who knows?[/quote']

 

The context is the Agricultural Adjustment Act of 1938. Designed to mitigate the effects of the depression by raising wheat prices through regulated production. The federal government would regulate how much wheat could be produced, and fines would be imposed for over-production. The Department of Agriculture Secretary Claude C Wickard set Filburn's wheat allotment at 11.1 acres/ 20 bushels per acre. However Filburn used over 20 acres for it since he consumed most of it himself, between his livestock and personal consumption. Only a small portion was actually sold on the market, well under the 20 bushels per acre maximum.

 

In his view, only marketed wheat should be considered commerce. Prior to the New Deal justice appointments by Roosevelt, that view was pluralized by the supreme court. Justice Owen J Roberts was the fifth vote reversal of that view in National Labor Relations Board v Jones and Laughlin Steel Corp. That ruling is what expanded "commerce" to include agriculture, manufacturing and production - anything that substantially effected commerce.

 

That's the first expansion of the clause. The second is Wickard v Filburn which held that those activities, however local and regardless of commercial intent, that effected interstate commerce could also be regulated by congress.

 

And so that's how you get from interstate commerce only to intra/interstate production/manufacturing/sale/agriculture and etc... Merely making stuff in your garage, growing things in your yard - all for your own use can be regulated because you can effect the market of such things.

 

The courts have also declined to establish any formula for measuring constitutionality of the commerce clause because, writes Justice Robert Jackson, "...that questions of the power of congress are not to be decided by reference to any formula which would give controlling force to nomenclature, such as 'production'...and foreclose consideration of the actual effects of the activity in question upon interstate commerce".

 

I think Jackson was trying to be practical, actually. But nomenclature is exactly what was needed to check this expansion.

 

 

I don't understand your position, are you against this simply because you find it unconstitutional, on what grounds is this. Plus I get confused by your wording because you take on an extremely libertarian position I think most will never agree to. Allowing people to become crack addicts will impact individual liberty on a social level outside of just the individual. Then again we do seem to be dominated by automobiles, but those happen to be of benefit to enough people as to be a null issue outside of gas prices.

 

Yes, I'm well aware that freedom scares the shit out of everyone. I'm not compelled by that majority. In fact, after observing group behavior in my lifetime, majorities alert me to look deeper as something is likely wrong.

Edited January 28, 2010 by ParanoiA

[The Bear's Key]

The context is the Agricultural Adjustment Act of 1938. Designed to mitigate the effects of the depression by raising wheat prices through regulated production. The federal government would regulate how much wheat could be produced, and fines would be imposed for over-production.

It might not be unconstitutional, as the Great Depression would've been considered to be a national emergency of sorts. Not that I agree with such rationale.

 

Also, the crucial thing we're missing (in such actions by government) is a clearly defined limit to the scope of an emergency regulation or Act, plus a set expiration date.

 

 

The Department of Agriculture Secretary Claude C Wickard set Filburn's wheat allotment at 11.1 acres/ 20 bushels per acre. However Filburn used over 20 acres for it since he consumed most of it himself, between his livestock and personal consumption. Only a small portion was actually sold on the market, well under the 20 bushels per acre maximum.

A few things...

 

1. Livestock eat way more than a farmer, and will end up traded in commerce.

 

2. Again, where the crops subsidized by our tax money?

 

3. Was the court possibly fixing an existing loophole of interstate commerce?

 

 

In his view, only marketed wheat should be considered commerce. Prior to the New Deal justice appointments by Roosevelt, that view was pluralized by the supreme court. Justice Owen J Roberts was the fifth vote reversal of that view in National Labor Relations Board v Jones and Laughlin Steel Corp. That ruling is what expanded "commerce" to include agriculture, manufacturing and production - anything that substantially effected commerce.

From the majority opinion, written by Republican-appointed chief justice Evans Hughes...

 

Although activities may be intrastate in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions

 

 

And so that's how you get from interstate commerce only to intra/interstate production/manufacturing/sale/agriculture and etc... Merely making stuff in your garage, growing things in your yard - all for your own use can be regulated because you can effect the market of such things.

Let's be realistic. Consider something: when's the last time you couldn't sell on eBay or Amazon because it had an effect on interstate commerce? Power sellers go through a huge volume of trade on eBay. And plenty of websites hook people up to directly trade with China businesses.

 

Reality is an effective gauge of something's truthiness, so I'm guessing the usual source of complaints are possibly from those who do business in a shady manner and try to stick citizens with the bill of taxes and/or resulting problems. I could easily understand why those people simply hate all regulation -- except the ones they lobby for (i.e bribe) in order to hurt or slow any competition. Do you ever track any regulations to see if a business had pushed for it?

 

As for marijuana, isn't that a prohibition by conservatives -- the very ones "protesting" the reach of the Commerce Clause? Again, though, if you trace back the history, you'll see the little ol' marijuana plant was in an unfair fight up against 3-4 titans of industry.

 

So if you truly want to go after the root of the problem, that's where it's at -- majorly.

 

The courts have also declined to establish any formula for measuring constitutionality of the commerce clause because, writes Justice Robert Jackson, "...that questions of the power of congress are not to be decided by reference to any formula which would give controlling force to nomenclature, such as 'production'...and foreclose consideration of the actual effects of the activity in question upon interstate commerce".

I only partly agree. They need to regulate from the opposite angle instead -- progressively from the bottom up -- and detail who's not going to be regulated or prohibited (i.e. hardly the little guy, an individual who's doing personal growing and use -- alone).

 

More importantly, the regulation process needs to be totally open. No secret meetings of business or interest groups with lawmakers.

 

I think Jackson was trying to be practical, actually. But nomenclature is exactly what was needed to check this expansion.

Not really. Big things like world industires can trigger big disasters very quickly. Leaving room for action is wise indeed, yet it's just as wise to leave a guarantee as how that's unlikely to be abused. What's missing is the guarantee.

 

 

 

Yes, I'm well aware that freedom scares the shit out of everyone. I'm not compelled by that majority. In fact, after observing group behavior in my lifetime, majorities alert me to look deeper as something is likely wrong.

Bullocks. Anyone can go live on nearly uninhabited islands or deep in a wilderness, and be free as pie.

 

True freedom might exist, let's say, where aboriginal natives must gather food or simply die -- also with rituals for youth to embark on becoming a real man.

 

It's laughable when people boast about true freedom, yet depend on the Constitution, and the military's defenses, plus the supply chain of goods arriving by tax-built roads, and now drive using the GPS systems of navigation made possible by satellites built with tax funds. The irony? When businesses get tax cuts, or deductions for lavish expenses, the rest of us must foot their unpaid part of the bill. How much freedom is that?

 

In a stable industrialized nation, our freedoms are those expressed in the Constitution -- and continually reinforced by us -- which must limit the freedom somehwhat of any big players who might inadvertantly (or purposely) trample ours.

Edited January 29, 2010 by The Bear's Key
additions/grammar

[ParanoiA]

A few things...

 

1. Livestock eat way more than a farmer' date=' and will end up traded in commerce.

 

[/quote']

 

Not from anything that I've read, and note, I didn't get my information from Wikipedia - I just used wiki for the links for any that are interested.

 

Number is 1 is a joke. Feeding livestock that will be used for trade means the feed qualifies for regulation? What about building the structure that houses the livestock? How about the land the livestock lives on? You seriously believe that everything that remotely touches that livestock automatically becomes commerce? That's exactly what the New Deal justices believed, so you're not alone.

 

Though, you should note, that the supreme court did not see it that way until in 1938, during implementation of the New Deal. The commerce clause was limited to actual objects of trade only, and only where they are traded across state lines and with other foreign nations for 150 years.

 

It is telling that the court totally changed its collective mind during the New Deal expansion - that's Judicial activism. They changed their mind because they ruled on matters of "wisdom" rather than matters of "power". That's activism by the judiciary. The supreme court is not to judge the wisdom of a law and its constitutionality, it is to judge the authoritative power of the congress to implement a given law per the constitution.

 

Just like the financial crisis, excuses were made for expansion of federal power, and instead of writing amendments to increase their power, or writing laws that didn't depend on that power, they instead just re-interpreted the language of the constitution. Government always uses crises to increase their power. War and economics are the most popular of those excuses. The people always shit their pants and give it to them - fear is a great motivator to subordinate groups.

 

2. Again' date=' where the crops subsidized by our tax money? [/quote']

 

Number 2 could be true, I'm not sure. But again, if its not commerce (though I acknowledge that you disagree on the scope of that word) then it wouldn't matter. Subsidy would have applied to the commerce lost as a result of reducing the amount of wheat to be allowed to grow. And since he didn't sell this wheat, it shouldn't be commerce that he's lost, so he gains nothing unfairly by the subsidy.

 

3. Was the court possibly fixing an existing loophole of interstate commerce?

 

Is it a loophole to take advantage of tax breaks in the code? Don't we try to walk the lines of the code to our best benefit?

 

Was it a loophole to grow and manufacture your own materials to then reassemble to create a product? I don't think so. I don't think the federal government was given the right to regulate growing wheat for myself that I may use to bake bread for sale' date=' or bread for my own consumption. They can regulate bread that I sell across state lines only - but every activity up to that point is under [i']state[/i] discretion, not the federal government. Well, until we rationalized around it with the depression crisis.

 

The history of the imperative for interstate commerce regulation is important to determine the scope of its power allocated in the constitution as well. The framers were extremely determined to resolve the problems with trade between states; it was a nasty game of tarriffs and gridlock. They had no interest in intrastate activity nor the activities that preceded the exercise of trade - that was not the imperative. That's history. And that's also why for 150 years they were limited for that very reason. States took that role. It wasn't ignored and left to chaos as proponents for this expansion would have you believe. State government is government.

 

The other thing that should be noted...the framers were well aware of farming, manufacturing, producing- obviously - and yet you never see that language. 'Commerce' is the act of buying and selling things. One has to stretch the logic, pursposely with the passion of agenda, to include activities that precede buying and selling, (further without regard to buying and selling). The word 'commerce' was never defined anywhere in the constitution, as is customary in legal language when an idea is more inclusive than it's strict definition would suggest. Another reason why it stood just that way for 150 years.

 

Let's be realistic. Consider something: when's the last time you couldn't sell on eBay or Amazon because it had an effect on interstate commerce? Power sellers go through a huge volume of trade on eBay. And plenty of websites hook people up to directly trade with China businesses.

 

I don't think it's wise to analyze the checks and balances of power using current behavior. How many presidents used a preemptive strike excuse before GWB? Yes, let's be realistic. The federal government may be a fair master today, but a tyrannical dictatorship the next. We didn't design our government based on the notion that everybody will be nice and fair forever and ever - we designed it with limits because we cannot know the extent of its benevolence and its potential for malice over the course of time and incrementalism.

 

The federal government has the power to ban gardens, home workshops, sewing, every example of production of a good, not intended for sale at all, for every american - including the hermit that lives in the woods in isolation. That they haven't exercised this power, is not an argument, but rather a report on current discretion. The federal government has the power to force you into the market. If you can't grow your own food to eat, or sew your own clothes, or build your own furniture, and any number of other things to sustain yourself - then you're forced into the market in order to live. That 99% of us do this by choice, is not an excuse to dismiss it.

 

I'm not comfortable with the federal government having that kind of power. And neither is the majority of americans, which is why they don't pass and amendment to grant that power - it's easier to bypass the majority imperative and just infer the verbiage of the constitution to mean what we'd like it mean. And now, after years and years of this incremental exercise of that power (since most americans had no idea what just happened with that SC ruling), we are well conditioned for subordination.

 

 

This is not an issue for you, because you have a collective, communal mindset and this logic is very comfortable for you. You seem to admire government intervention to engineer proper behaviors, and regulate fairness. This is not a disparagement, as it may sound, I'm basing this off of previous conversations in the past and seems a valid point. We will never see eye to eye on individual liberty.

 

As for marijuana' date=' isn't that a prohibition by conservatives -- the very ones "protesting" the reach of the Commerce Clause? Again, though, if you trace back the history, you'll see the little ol' marijuana plant was in an unfair fight up against 3-4 titans of industry.

 

So if you truly want to go after the root of the problem, that's where it's at -- majorly. [/quote']

 

I'm not the least bit interested in the cant by conservatives. The ideologies of liberals and conservatives to squirm their value systems into law, skirting the principle of a broad based ethical system that accomodates all moral codes limited only by harm to others and their stuff, as originally codified in our founding language, has always left me chafed.

 

What you bring up here is the classic blame dilemma: Is it the fault of the regulator or the regulated? Typically, I blame the regulator. Mainly because that title and control claims the expertise to maintain that function and because they enumerate the rules for everyone to negotiate. But the regulated are also to blame, because we should not be proud of acting hypocritical and exploiting coercive forces to get our way. Since both bussiness and consumer, employer and employee, rich and poor - all do this, none of them get my sympathy and all of them get my scorn.

 

You're right. The conservatives are sons of bitches for exploiting the power they shouldn't have had. And so are the liberal democrats of the New Deal era for establishing that power they shouldn't have had.

Edited January 29, 2010 by ParanoiA
added the bit on conservatives and the power of commerce clause and grammatical errors

[Mr Skeptic]

So to summarize, it is Constitutional because the Supreme Court decided that they get to decide whether something is Constitutional or not, and because they haven't deemed it Unconstitutional.

[ParanoiA]

So to summarize, it is Constitutional because the Supreme Court decided that they get to decide whether something is Constitutional or not, and because they haven't deemed it Unconstitutional.

 

No, I think it's constitutional because they said it was, since that's their call. And since we are not subjects, but rather citizens, we can disagree with their reasoning.

 

Hell, they can decide that the first amendment only applies to corporations, so citizens are to sit down and shut up. If that's how they want to interpret it and at least 5 of them think so...

 

Or have I missed your point entirely?