Based on what I have read in this thread, the federal government could make home vegetable gardens illegal. I doubt that they would take action against somebody growing their own peas, but what about people making their own beer or wine?
I can’t see a relevant difference between Marijuana grown to smoke and wheat, wops or whatever you feel like brewing with. The 21st amendment doesn’t seem to be a barrier either:
That doesn’t seem to be a barrier for Congress to ban alcohol or anything related to alcohol production.
For all intents and purposes if its deemed commerical, Congress can regulate. Any commerce will fall under the three prongs the way they have been defined. So while technically that isn’t the test, in application it seems that is the test, even if it is not explicitly stated.
How is carrying a gun part of the ‘commercial process’? Is it manufacturing, production, selling? A gun being used in an interstate drug crime doesn’t make carrying the gun something commerical.
I doubt the Supreme Court would ever consider ordinary sex to be something commerical or that the Congress has proved a rational basis for tying it to commerce.
I disagree. I have severe doubts that sex would be considered a service, even by Congress who was to pass any law restricting sexual practices. Sex for money may indeed be considered a service. But regular sex? Sorry, I just don’t see it. On the other hand production of aggricultural goods (farming) is something considered commerical.
What of all my scenarios? Certainly Dildos are manufactured and sold, Prostitutes exchange sex for money and people exchange money for mail-order brides. Those actions certainly constitute commerce and the reasons I gave pass the rational basis test for Congress to regulate those markets.
I don’t understand. Growing pot for money=commerce, Sex for money=commerce, Growing pot for personal use=commerce, Sex for personal use=not commerce? What exactly is the difference between those two cases. I am not trying to be obtuse or argumentative here but this is what I get when I read the ruling. All the Federal Government has to do is show a rational basis for something affecting commerece anywhere and it has the power to regulate it. That for all intents and purposes means anything and everything.
Well, what I said applies for both scenarios. Lesbian sex and sex with your spouse are not commerce nor ‘services’. No court would say they even come close to passing a rational basis linking them to dildos and mail order brides.
Rational basis isn’t an automatic win for the government. The government has lost on rational basis tests.
The problem is that limiting sex on the basis of prostitution does not follow a rational basis. Marijuana is a good. It’s growth, even for personal use has direct effects on the market (even if that is a black market). If sex was a service, you would have a point that it can be considered commerce, but I think most would disagree with the characterization of sex in that way. Therefore saying that sex should be regulated as commerce because prostitution is selling sex does not pass rational basis.
Furthermore, for all intents and purposes, it seems anything to do with goods will fall under commerce, but anything to do with personal behavior (outside of selling something, advertising, or other things you’d do in a business setting) will not fall under commerce.
Maybe I am missing something here but I don’t see how marijuana used under the instruction of a physician and regulated by the State has any more impact on a market than lesbians do on the Dildo market. The amount of marijuana used under this law is miniscule in comparison to the amount of marijuana consumed in the country at large. I would wager that banning lesbian sex and enforcing it as strictly as they do with marijuana would have just as much if not more effect on the market than banning medical marijuana.
I think most people would also disagree that growing a plant in your private garden for personal consumption constitutes commerce also. But again most people isn’t the test, its whether there is a rational basis for believing the law would affect commerce. Certainly requiring a permit for sex would discourage prostitution which is no less of commerce than exchanging money for goods.
This is the problem I have with your reasoning. Why does a physical object that you do not sell, do not advertise and do not do anything related to business count as commerce on the sole basis that someone else sells it? On what basis does the classification change just becuase it is a service instead of an object?
(Emphasis added).
There you go again, using the terms interchangeably. Do you have any authority to support this position? Moreover, if something commercial will fall under the three categories, then why do we need an additional concept? More important, if it “falls under,” then the notions of interstate commerce and commercial are not coterminous–there are types of interstate commerce that are not commercial. So commerciality is neither neccessary nor sufficient to determine whether an act is within the commerce power.
How about carrying or possessing pot? Because that’s what happened in this case:
Would it make any difference if it the ban were part of an integrated regulatory scheme like the CSA? We’ve already had statutes regulating what kinds of weapons and ammunition can be sold and how and to whom they may be sold. How about if Congress devised a closed regulatory system making it unlawful to manufacture, distribute, dispense, or possess any firearms, except in the manner authorized by the act (of Course the Act would have to give lip service for possession of firearms reasonably related to the preservation or efficiency of a well-regulated militia?
And while we are at it, how about one that bans any personfrom possessing a machinegun? http://frwebgate1.access.gpo.gov/cgi-bin/waisgate.cgi?WAISdocID=283202168067+0+0+0&WAISaction=retrieve
or a sawed-off shotgun? http://www.usdoj.gov/usao/ct/Press2005/20050318-1.html
Is it manufacturing, production, selling?
Actually, under Lawrence v. Texas sex without an exchange for money is quite different. There the Court ruled that people have a liberty interest in private, consentual, non-commercial sexual conduct. Despite congress’s general Commerce Clause powers, the Lawrence liberty interest would prevent congress from regulating lesbian or spousal sex, though it most likely regulate or prohibit prostitution, a commercial activity that most likely could be rationally believed to have interstate commerce effects.
Perhaps a more straightforward example would be that under the First Amendment Free Press Clause, congress most likely could not prohibit or substantially limit the publication of newspapers, even though they clearly move in interstate commerce.
However, if a product or service that moves in or affects interstate commerce, unless there is some other constitutional protection, it appears that congress can regulate or prohibit its sale or general possession.
ISiddiqui, I think the things your saying are failing to take into account the complete wording here… according to Wickard, Congress can not only regulate interstate commerce, it can regulate anything that would affect interstate commerce. And EVERYTHING we do, say, watch, hear, but, eat, drink etc. can be said to have some effect.
I mean, if I build a big fire, and smoke gets blown downwind to the next state, and now people’s cars have ash on em, so they have to go to the car wash, which gets it’s detergent from a third state… oops, now I have affected interstate commerce with my leaf-burning, and the feds can now step in.
The gun I’m carrying near the school? It frightens children, which causes them to want fewer Happy Meals. Now the feds can step in.
I can see an endless stream of easily-justified regulatory action, and the color of the stream is brown.
Actually the gun law was found to be unconstitutional in Lopez. A quote I found humorous from that ruling:
Basically the Court is saying sure we realize we are giving Congress broad control but everyone knows that somehow it can’t regulate all aspects of local government. The logical arguments at where the line is drawn of course are conviently left out.
How do lesbians have an effect on the dildo market anyway? I’d wager that the majority of users are straight women and I don’t think the sexual orientation of the person determines if they will get a dildo. Furthermore, being a lesbian isn’t a service. Marijuana used by doctor’s perscriptions will result in more growing of pot. Imagine if every state allowed this. The effect would be vast.
Apparently enough people agree, including 6 member of the Supreme Court ;). And isn’t ‘rational basis’ a standard requiring that the people agree (somewhat). People who think that labeling sex, by itself, as commerce (or affecting commerce) is irrational are not going to think the government has passed a rational basis test.
You have yet to show me that any of your examples include ‘services’. Sex with your spouse/girlfiend and lesbian sex aren’t services, unless there is a transaction of money.
As one of the definitions of commerical is “Engaged in commerce”, I’m not sure that it matters.
What?! Where did you pull this from? I said any commerce will fall under the three prongs. That means any commerical activity. That means that there are no types of interstate commerce that are not commerical.
That’s where I disagree with the Court. I have no problem with them saying that medical marijuana falls under the Commerce Clause. However, I do not believe that carrying or possessing drugs falls under Congress’s Commerce Clause power. If the states want to legalize carrying or possessing a small amount that is fine with me.
However, I realize that the Court has said that falls under Congress’ power. I believe they used the ‘necessary and proper clause’, at least that is what I got from Scalia’s opinion, that it undermines the federal government’s ability to fight interstate drug trafficking or some sort of thing.
I think you are overstating things. Wikard has been limited in its ability to regulate “everything” because Congress asserts some tiny interstate commerical effect by the cases of Lopez and Morrison, as one of your examples…
Actually in US v. Lopez, the Supreme Court ruled that federal laws that prohibited carrying a gun in X yards of a school was beyond Congress’ Commerce Clause power. And that case came quite a bit after Wickard was established precedent.
I don’t know exactly but is it rational to think that it would have an effect? I mean you do realize how miniscule a couple sick people in California growning and smoking their own dope has on the national marijuana market?
No my understanding of rational basis is just that. Congress just needs to show they have a rational reason to believe that the law they pass will impact interstate or foreign trade.
Why do you require a transfer of money for a service to be considered commerce yet no such money transfer is required for a physical object? I don’t understand the distinction here: Sex for money=commerce, growing drugs for money=commerce, Sex not involving money transer=not commerce, growing drugs without money transer=commerce. Why are services excluded from commerece if money doesn’t change hands?
What if I don’t charge you and help you gardening does that constitute commerce?
I don’t think the lesbians to dildo line is very rational at all. And it isn’t just a couple of sick people in California, but what would happen if, for example, every state had a med marijuana program and millions used these programs.
And that I think is the problem with your examples, you picked them for their irrationality ;).
I don’t think Congress or the Courts would characterize “sex not involving money transfer” as services, that is why I put the money part in there to distinguish the part that would be called services by people and that which would not.
If you help with the gardening? Yeah, I can see that as a service under commerce. After all, there may be an implied barter for future free services down the line.
Once again, I’m not saying that free services don’t count as commerce, I’m saying sexual relations, which are not prostitution, would not be considered services by a vast, vast majority of people, especially those in Congress and the Courts.
It doesn’t have to consitute commerce on it’s own, it only has to affect (interstate) commerce.
Not married are we? 
Oh, I have to redesign the federal judiciary to make my point, eh? If Mr. Smith knocks over a liquor store and I say he did a bad thing, I have to devise a system for keeping liquor stores from ever being robbed again, or my complaint has no bearing, eh? Interesting viewpoint.
Still, I accept your challenge. Offhand, how about a law that allows judges to say in essence: “The law compels decision Y from me. But this is one of those cases where decision Y would be an affront to ordinary decency and morality. A woman who has brain cancer obviously has far bigger problems than some kid looking to get high. Invoking the power of the federal judiciary to prosecute her is insanely cruel and stupid, therefore we rule that although the feds may have the power to prosecute people when they use drugs recreationally, you have to make an exceptional for really ill people who are just trying to get better.”
This would also work in the lower courts, frex, the case where a guy was jailed for life under California’s “three strikes” law for stealing a bicycle.
You could call it “The Insanely Cruel and Stupid Exception” rule.
Obviously, citizens must be free to disobey laws that are insanely cruel and stupid. I mean, wasn’t that the basis for the prosecutions at Nuremburg? Surely if we were willing to prosecute Germans for obeying their laws, implying that they should not have done so, we should hold our citizens to the same standard.
Let’s not get our undies in a bunch. I was responding to this:
Were you just venting? If you are comaring this complaint to a complaint about a liquor store robbery, in the case of the liquor store robbery, you’d be seeking justice by calling the cops and asking them to investigate and arrest the culprit; in the case of your dissatisfaction with the Supreme Court (I took it to be that cheap partisan hacks are on the court and deciding cases based on disingenuous rationales–a criticism that has been laid by many at various times in history), I was simply wondering what would meet your criticism.
Some legal theorists would argue that an immoral law is no law at all, or a more sophisticated version of this, as Ronald Dworkin does: the law includes the highest moral principles of a society, and it is the judge’s obligation to interpret the law with these in mind. But this doesn’t answer your objection. Even Dworkin would admit that sometimes judges get the wrong answer. My question was, how do we design a system for correcting the errors of our court of last resort. Adding another layer of appeal won’t work (what if that court got the wrong answer?), so what will?
Around here, we call it substantive due process.
The question remains: who decides? I agree that one need not follow an immoral law. One that I simply disagree with OTOH, well if everybody did that, where would we be?
Nuremberg is one of the classic cases. It gave rise to one of the best known debates in legal theory between Lon Fuller and H.L.A. Hart.
You think there are millions of people in the US with terminal deseases that would be eligible for medical marijuana? I coulnd’t find the exact number but I would be suprised if it were more than a couple hundred in California.
Hang on, the hypothetical law was requiring a permit and a medical examination before each sexual encounter. The justification for this would be that it would make prostitution safer/harder to get. Certainly there is a rational reason to believe that is true.
Of course they aren’t but how is a private garden any more of commerce than private intercourse?
Ya see, that’s the thing. First, if as you say commercial means commerce, then why not just say commerce? It’ll save you two keystrokes. Using two terms for the same idea just confuses the matter. But you seem to go back and forth, sometimes using “commercial” in the sense of paying money for stuff. *E.g., *
But neither commercial nor commerce is the legal test. Here is the test. Again:
So to be covered by Congress’s Commerce Power an act need not be in itself commercial. It need only when aggregated with other activities, substantially affect commerce. It seems to me that some of the time you use commercial as an additional requirement, but when I point that out, you back off and say commercial just means that it satisfies the test quoted above. That’s called equivocation. Bottom line, if commercial just means that it passes the commerce clause test, then it doesn’t add a thing to the discussion. If it is a new limitation, is it your own, or do you have some authority for its existence in the cases?
At best, a tautology. Are there commercial things that aren’t interstate commerce?
Huh? Necessary and Proper and Commerce Clause have been a conceptual pair at least since 1838:
(Opinion of Court)
(Scalia concurring).
And the clause certainly seems to justify the application:
That’s why the standard I have been quoting is so broad. It goes way beyond money changing hands and stuff being sent between states.
If I understand you correctly, you are saying that you didn’t know this, and you don’t have any authority to the contrary. In other words, what we have been talking about is not your interpretation of current Commerce Clause cases, but your opinion about how commerce clause cases ought to be decided (I don’t intend this as a criticism–I’m just trying to figure out if we are on the same page, because the rules are different for that kind of discussion).
So you disagree with the entire pot decision, except that the part where the Court impliedly approves the law prohibiting marijuana cultivation?
Eep. If a mod could fix the coding on that one, I’d consider it a personal favor.