Political Crossfire Forums

[flamboyant]

I have a basic understanding of the grounds on which these laws were passed, but I'm not well-versed enough in constitutional law to even begin formulating an opinion on it, so I'll pose two questions simply and hope I can learn from the discussion:

EDIT: Does congress have the constitutional power to tell the citizens of the United States that they cannot posses drugs for their own personal use?

[Sukoi]

flamboyant wrote: I have a basic understanding of the grounds on which these laws were passed, but I'm not well-versed enough in constitutional law to even begin formulating an opinion on it, so I'll pose two questions simply and hope I can learn from the discussion:

Does congress have a right to control the drugs a person can ingest?

and

Does congress have a right to control the drugs a person grows on their personal property for their own personal use?

How about this instead: Does congress have the constitutional power to tell the citizens of the United States what they can and cannot ingest? If so, I'd like to see where that specific power is written as I have never seen it.

[flamboyant]

Done. :tu:

[Sukoi]

So flamboyant, what is your "basic understanding of the grounds on which these laws were passed"?

BTW, I'll likely be out of here until tomorrow...

[bigstick61]

The simple answer to that question is "no." It is not one of the enumerated powers of Congress and as such, and also as reinforced by the 10th Amendment, it is a matter left entirely up to the States, provided one believes in obeying the Constitution. However, Congress may regulate, place a tarriff on, or prohibit the importation of drugs, and also regulate the interstate commerce of drugs (as with any other good; this does not imply a power to prhibit, just the power to settle the differences between States), as well as place excise taxes on drugs as is done with alcohol, tobacco, and NFA weapons.

[flamboyant]

Well, I thought I had a basic understanding, but a little trip through Wiki actually showed me how much I didn't know. Let's stick with marijuana for now.

Criminalization began with the 1937 Marijuana Tax Act.

Quote: The act did not itself criminalize the possession or usage of marijuana, but levied a tax equalling roughly one dollar on anyone who dealt commercially in marijuana. However, its penalty provisions were unusually severe--violations of proper procedure could result in a fine of up to $2000 and five years' imprisonment. The related paperwork was unduly complicated and byzantine. The net effect was to effectively make it too risky for anyone to deal in the substance.

Now this is kind of interesting because the government obviously sought to keep anyone from using it, but it seems they took a roundabout way of going about it. Right off the bat, it makes you wonder if there was a constitutional issue that made Congress avoid writing a simple law that would have outlawed possesion and consumption.

Now this is really interesting . . . In 1969 in Timothy Leary v. US, the Marijuana Tax Act act was found to be unconstitutional since it violated the Fifth Amendment, since a person seeking the tax stamp would have to incriminate him/herself! Some of you may have known that but I thought it to be pretty, um . . . trippy to see Timothy Leary was part of the whole Marijuana criminalization / decriminalization debate.

The response to this ruling came in the form of the Controlled Substance Act in 1970. Here's the entire bit on Consitutional issues which should serve as a good springboard here, as a matter of fact as we progress through the thread, we probably will be able to update the article quite a bit:

Quote: Constitutional issues

Most of the Congressional findings and declarations in 21 U.S.C. § 801 are devoted to establishing the statute's constitutionality. Using similar language to Article I, Section 8 of the U.S. Constitution, the CSA cites the impact of intrastate drug offences on "interstate commerce" and the "general welfare" of the American people. However, David Boaz, executive director of the Cato Institute, claims that "The Tenth Amendment reserves to the states or the people all powers not granted to the federal government. At least the advocates of alcohol Prohibition had enough respect for the Constitution to seek a constitutional amendment to impose Prohibition, but Congress never asked the American people for the constitutional power to impose drug prohibition"[url=Drug Prohibition Has Failed] [source][/url].

In 2003, the United States Court of Appeals for the Ninth Circuit ruled the CSA illegal as it applied to the use of medical marijuana in the case Raich v. Ashcroft, 352 F.3d 1222 (9th Cir. 2003). However, the case was appealed to the Supreme Court by the federal government, and in 2005, the Supreme Court ruled in favor of the federal government.

(In a different thread someone had asked where are all the real conservatives? I think a lot of them are hanging out at the Cato Institute.)

Well we definately have a good starting point here. Let it roll . . .

[flamboyant]

bigstick61 wrote: The simple answer to that question is "no." It is not one of the enumerated powers of Congress and as such, and also as reinforced by the 10th Amendment, it is a matter left entirely up to the States, provided one believes in obeying the Constitution. However, Congress may regulate, place a tarriff on, or prohibit the importation of drugs, and also regulate the interstate commerce of drugs (as with any other good; this does not imply a power to prhibit, just the power to settle the differences between States), as well as place excise taxes on drugs as is done with alcohol, tobacco, and NFA weapons.

Damn, you know your stuff then. I had to look all that up. Hopefully we can get some who favor criminalization in here and that's when we can start getting into the finer points.

I think it would be really cool actually if we could take the little bit from the Constitutional Issues section of the article and put it into more detail at Wikipedia.

[Quicksurf]

bigstick61 wrote: The simple answer to that question is "no." It is not one of the enumerated powers of Congress and as such, and also as reinforced by the 10th Amendment, it is a matter left entirely up to the States, provided one believes in obeying the Constitution. However, Congress may regulate, place a tarriff on, or prohibit the importation of drugs, and also regulate the interstate commerce of drugs (as with any other good; this does not imply a power to prhibit, just the power to settle the differences between States), as well as place excise taxes on drugs as is done with alcohol, tobacco, and NFA weapons.

Isn't that just beating around the bush? It's just finding small legal loopholes to ineffectivley enforce a law that the citizens as well as the government wants to be enforced.

[bigstick61]

The States can pass laws banning drugs; it is a State right to decide the matter. I'm sure you'll find most States will ban drugs regardless of whether the Federal government does. Where there is conflict, Congress can help regulate; a good example of this is the recent bill regarding girls crossing State lines to get an abortion without having to have their parents notified. As far as the Constitution is concerned, the law should rule, not the will of the majority or of the government; such is how a republic works. To support the ignoring of Constitutional provisions sets a bad precedent.

[flamboyant]

Quicksurf wrote: bigstick61 wrote: The simple answer to that question is "no." It is not one of the enumerated powers of Congress and as such, and also as reinforced by the 10th Amendment, it is a matter left entirely up to the States, provided one believes in obeying the Constitution. However, Congress may regulate, place a tarriff on, or prohibit the importation of drugs, and also regulate the interstate commerce of drugs (as with any other good; this does not imply a power to prhibit, just the power to settle the differences between States), as well as place excise taxes on drugs as is done with alcohol, tobacco, and NFA weapons.

Isn't that just beating around the bush? It's just finding small legal loopholes to ineffectivley enforce a law that the citizens as well as the government wants to be enforced.

I'm not exactly sure I would call the 10th Amendment a loophole:

Quote: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

That one sentence packs a pretty big punch - if it's not in the Constitution, it's an issue for the states (or the people) to decide.

Take Roe v. Wade for example. Even some pro-choicers looking at it from a purely legal standpoint would be hard-pressed not to admit that the right to privacy is a pretty big stretch for the Supreme Court to have used in deciding that abortions should be legal. So if you look at abortions then, while it's an extremely polarizing issue which puts most people squarely in one camp or the other, it could be argued that any honest interpretation of the Constitution would put abortion squarely as a 10th amendment issue.

That's a pretty powerful amendment then, although often ignored to suit the purposes of activist federal judges. If you're arguing that the control of personal drug use is not a power delegated to the federal government by the Constitution, you would say it's a 10th amendment issue.

[flamboyant]

Speaking of loopholes, here's Congress' loophole to get around the 10th amendment:

Quote: The Tenth Amendment is sometimes cited as constitutional ground denying Congress the right to pass any law it sees fit. However, Congress has cited its authority under the Commerce Clause for the authority to pass laws in realms of human behavior not mentioned in the Constitution. If a particular activity affects interstate commerce in any way, they have argued, that Congress has the authority to regulate that activity.

[flamboyant]

One last bit to add to the mix. Here's the case where the Supreme Court defecated all over California voters in torpedoing California's Proposition 215:

Quote: Most recently, the Commerce Clause was cited in the 2005 decision Gonzales v. Raich. In this case, a Californian woman sued the Drug Enforcement Administration after her medical marijuana crop was seized and destroyed by Federal agents. Medical marijuana was explicitly made legal under California state law by Proposition 215; however, marijuana is prohibited at the federal level by the Controlled Substances Act. Even though the woman grew the marijuana strictly for her own consumption, and never sold any, the Supreme Court stated that growing your own marijuana affects the interstate market of marijuana, citing the Wickard v. Filburn decision. It therefore ruled that this practice may be regulated by the Federal Government under the penumbra of the Commerce Clause.

source: http://en.wikipedia.org/wiki/Tenth_Amendment_to_the_United_States_Constitution

(Last two quotes actually)

I don't even smoke pot and that makes my blood boil.

[ja]

As Justice Clarence Thomas said in his dissent to Raich, "Respondents use marijuana that has never been bought or sold, that has never crossed state lines, and that has 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."

So what do you do when the rule makers and rule enforcers break the rules?

[brian bennett]

bigstick61 wrote: The States can pass laws banning drugs; it is a State right to decide the matter. I'm sure you'll find most States will ban drugs regardless of whether the Federal government does. Where there is conflict, Congress can help regulate; a good example of this is the recent bill regarding girls crossing State lines to get an abortion without having to have their parents notified. As far as the Constitution is concerned, the law should rule, not the will of the majority or of the government; such is how a republic works. To support the ignoring of Constitutional provisions sets a bad precedent.

i disagree -- states don't have "rights," the citizens do. there is no propriety or legitimacy in a state deciding to punish people for what they do to themselves, nor in declaring plant life "illegal" -- both are usurpations of what are essentially ultimate powers (the very thing the constitution is designed to protect the citizens against).

you have the absolute right to make determinations about what you do to yourself. and for the constitutional protections of that right we can look at the 13th and 14th amendments.

the 13th makes it illegal to own people -- thus no one can "own" you except you. if you own yourself, then how is anyone legitimately empowered to outlaw (and hold culpable) your will toward yourself? they aren't.

the 14th says that the states have to treat the citizens as equals too. the states thus also have no legitmate powers to punish those who act upon themselves in accordance with their own will to do so. nor do they have the penultimate power to declare life forms "illegal."

if you don't have the right to do things to yourself, you have no rights. period.

no state government can deny your right to "own" yourself -- and the behaviors you direct upon yourself. no one can.

[perdidochas]

flamboyant wrote: I have a basic understanding of the grounds on which these laws were passed, but I'm not well-versed enough in constitutional law to even begin formulating an opinion on it, so I'll pose two questions simply and hope I can learn from the discussion:

Does congress have the constitutional power to tell the citizens of the United States what they can and cannot ingest?

and

Does congress have the constitutional power to tell the citizens of the United States what they can and cannot grow for their own personal use?

Drug laws are based on possession, not use. Congress obviously can (and it has been upheld in the courts).

[flamboyant]

ja wrote: As Justice Clarence Thomas said in his dissent to Raich, "Respondents use marijuana that has never been bought or sold, that has never crossed state lines, and that has 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."

So what do you do when the rule makers and rule enforcers break the rules?

God Bless Clarence Thomas. For a little background, the raping of the 10th Amendment began under FDR:

Quote: Many expansions of federal power enacted during the first phase of the New Deal in the 1930s were struck down by the Supreme Court, until President Franklin Delano Roosevelt tried to increase the number of judges on the Court to fifteen (the court packing scheme), and fill it with sympathetic judges. Although this was unsuccessful, in what was called "the switch in time that saved nine," the Court shifted from a narrow interpretation of the Commerce Clause, and broadened Congress's authority on activities that impact interstate commerce.

In the 1942 case Wickard v. Filburn, the Court ruled that federal crop price controls reached the wheat grown on a rural farm to be fed to the owners and their farm animals. The rationale was that a farmer's growing "his own wheat" is "commerce" because if he had not grown and consumed it, he would have had to buy it from someone. Hence, in the aggregate, if farmers were allowed to consume their own wheat it would affect the interstate market in wheat.

How totally messed up is that kind of logic? Thank you, FDR. You couldn't pack the bench but you got your Communist concession in the expansion of the Commerce Clause.

The ironic thing is, you look at the 6 - 3 decision in Gonzales v. Raich and it's the conservatives here (O'Connor, Rehnquist and Thomas) who were the proponents for allowing the states to have their own marijuana laws without interference of the Federal Government. It was the usual list of liberal justices (Stevens, Kennedy, Souter, Ginsburg, Breyer) who allowed the Federal Government to trample the will of the voters in California. Shame on you! (And what are you doing judging in concurrence, Scalia? You're supposed to be the textualist, why are you letting the Commerce Clause trump the 10th Amendment in such an egregious way?)

[flamboyant]

perdidochas wrote: flamboyant wrote: I have a basic understanding of the grounds on which these laws were passed, but I'm not well-versed enough in constitutional law to even begin formulating an opinion on it, so I'll pose two questions simply and hope I can learn from the discussion:

Does congress have the constitutional power to tell the citizens of the United States what they can and cannot ingest?

and

Does congress have the constitutional power to tell the citizens of the United States what they can and cannot grow for their own personal use?

Drug laws are based on possession, not use. Congress obviously can (and it has been upheld in the courts).

Oh wow . . . did I mention that I was pretty new to this discussion? Thanks for the clarification. :tu: That really changes a lot of the arguments that have already been made about "what people do to themselves".

US CODE: TITLE 21,844. PENALTIES FOR SIMPLE POSSESSION

US CODE: TITLE 21,959. POSSESSION, MANUFACTURE, OR DISTRIBUTION OF CONTROLLED SUBSTANCE

US CODE: TITLE 21,844. PENALTIES FOR SIMPLE POSSESSION

US CODE: TITLE 21,955. POSSESSION ON BOARD VESSELS, ETC., ARRIVING IN OR DEPARTING FROM UNITED STATES

US CODE: TITLE 21,844A. CIVIL PENALTY FOR POSSESSION OF SMALL AMOUNTS OF CERTAIN CONTROLLED SUBSTANCES

US CODE: TITLE 21,955. POSSESSION ON BOARD VESSELS, ETC., ARRIVING IN OR DEPARTING FROM UNITED STATES

US CODE: TITLE 21,844A. CIVIL PENALTY FOR POSSESSION OF SMALL AMOUNTS OF CERTAIN CONTROLLED SUBSTANCES

US CODE: TITLE 21,959. POSSESSION, MANUFACTURE, OR DISTRIBUTION OF CONTROLLED SUBSTANCE

Oh my, we were totally barking up the wrong tree. It has nothing to do with ingestion.

[bigstick61]

perdidochas, just because a court rules something, doesn't make it correct. The 20th Century is replete with erroneous rulings. Such rulings are usually to meet a specific agenda, and that is to increase the government's power and maintain the power they have already usurped.

brian bennett, as governmental entities in relation to the central government, as well as being what make up the Union, the States do have rights. The term State's Rights has been in use since the early 1800s, if not earlier. The ability to regulate or prohibit dangerous or intoxicating substances is well within the police powers of the States, provided the State Constitution allows for such a thing.

flamboyant, the commerce clause, as well as the necessary and proper clause, have been used to dramatically expand the Federal government's power. When one reads the Federalist Papers, one can see that these clauses were never meant to be used in such a way, because the central government was supposed to be one of very limited powers, just strong enough to keep the Union together and perform certain national functions, which was something the Articles of Confederation could not do. The necessary and proper clause was meant to allow Congress to pass laws allowing the laws passed in accordance with the enumerated powers to be enforced properly, an example being the establishment of executive departments, or the establishment of an agency meant to enforce counterfeiting laws. Without that clause, Federal laws would have no teeth. The commerce clause was meant to settle commercial disputes between States, which were a common occurrance under the AoC. It certainly wasn't meant to allow Congress to control anything which mght have the slightest effect on interstate commerce. That is a complete and utter perversion of that article.

[brian bennett]

bigstick61 wrote: brian bennett, as governmental entities in relation to the central government, as well as being what make up the Union, the States do have rights. The term State's Rights has been in use since the early 1800s, if not earlier. The ability to regulate or prohibit dangerous or intoxicating substances is well within the police powers of the States, provided the State Constitution allows for such a thing.

sorry, but states are governmental entities, not individuals. individuals have rights -- and they may grant powers to the government.

the states have no more *power* to punish people for doing things to themselves or for declaring plant life illegal than the federal government does.

legitmate power is derived from the just consent of the governed. so tell me: in which states have the citizens abdicated their free will to their government? in which states have the citizens granted the power to declare the flora and fauna off limits for human use? how would the citizens even have the "right" to declare lifeforms illegal in the first place? such is required before the citizens even could grant said powers to the government.

power and rights are not the same thing: for example, i may have the power to cause you great harm. i do not, however, usually have the right to do so.

no level of government institution has the legitimate power to cause any great harm to any citizen for acting directly upon themselves.

[bigstick61]

I don't think you understood what I said. In RELATION to the Federal government, the States have rights. The Federal government is as much a government of the States as it is one of the people, since it was created by the sovereign States, who gave up a certain degree of their sovereignty while maintaining certain rights of sovereignty so they could enjoy the security and benefits of the Union.

As for drug laws themselves, I believe it is within the powers of the States to legislate in this area. However, I feel it is wrong to prohibit most drugs outright because the negative effects this has outweighs the good if the coercion is requisite to have the desired effect, and otherwise because the coercion is insuffuicient, making the coercion bad. Personally, I don't support drug use and believe it is up to social, not governmental, institutions to control their use to the extent possible, and I believe drug prohibition is a futile endeavor in which the negative effects outweigh the positive effects.