Where does it put us with regards to Casey, Roe vs Wade or the various other cases decided on pneumbras? If the Commerce Clause is indeed this broad shouldn’t it take precidence over rights not explicitly written in the Constitution?
Yep, that’s correct. Which is why I said early on that reading the Commerce Clause narrowly may put things like Title VII in jeopardy. I rather like those type of laws.
In a nutshell, yes. I’d say that marijuana cultivation can be regulated by the feds, but not carrying or possessing marijuana.
IMO, that’s a non issue. Do you practically think the Supreme Court will overturn Roe based on the Commerce Clause (though I think most people would consider a good deal of doctors to engage in interstate commerce, if not in patients, than in equipment and drugs)?
The Court may just say it is based on the Bill of Rights, which, coming after the ratification of the Constitution, trumps any Commerce Clause legislation.
Two separate issues. The Commerce Power, is where we keep all the stuff about the limits to Congress’s enumerated powers–Due Process (and Substantive Due process are limits on what federal and state governments can do, assuming the they would be authorized to do them in the absence of an enumerated power). The cases you mention are particularly good examples because they both involved state statutes. State legislatures don’t have any powers under the commerce clause of the United States Constitution–that clause relates to Congress’s power. But states generally have police power, i.e., the power to make things illegal, prohibit things, and requires things of their citizens. *Roe *and *Casey * are about federal limits placed on the states’ police power and are based on the United States Constitution (whether you believe the Supreme Court was correct in its interpretation is a different story).
Your question raises an interesting issue, to which I alluded above. Could Congress pass a statute–not an amendment–outlawing abortion (assuming Roe and its progeny were overruled)? In other words, is it within the Commerce Power for Congress to regulate abortion? How about a statute making legalizing abortion?
Yes but Casey and Wade were decided on a generalized right to privacy which is not explictly found in the Constitution. The Commerce clause is explictly stated in the Constitution all the Court has done is judge what constitutes interstate commerce. For example the Court found that Pornography falls under the 1st amendment, it did not find a generalized right to porn. The Court did find however that there is a generalized right to privacy whether it be in the 14th or 9th amendments. My question is doesn’t explictly stated rights trump those found under pnemubras?
Thats basically my question. How can implied and interpeted rights trump explicitly stated rights? Doesn’t this ruling go against a great deal of other cases?
Legally, this is a non-sequitur. Congress has enumerated powers, which are subject to limitations found in the Bill of Rights and other amendments, including the Fourteenth Amendment. The Supreme Court, which has the final say in the matter, has decided that the Fourteenth Amendment’s guarantees of liberty and due process include a right of privacy. You might not agree with their analysis, but the right comes from an amendment under current law.
To put the answer in your terms, the Court in Roe and Casey judged what constitutes Liberty and Due Process under the Fifht and Fourteenth Amendments. In Wickard, the Supreme Court judged what is necessary and proper to regulate inerstate commerce (which is why Bricker doesn’t like it–it doesn’t just apply the language of the Constitution). The amendments trump Article I (which enumerates the legislative powers), because if they didn’t, they would never apply (Congress can only do what is enumerated, so if enumeration trumped the Bill of Rights, the Bill of Rights would be read right out of the Constitution.)
::sigh:: This, my friend, is the real problem. The Justices cannot, must not, use their own concepts of morality as the basis for their decisions. Why not? Simple: they are not elected, and they serve for life. Procedural interests must trump morality in the judiciary. Otherwise, what we have is dictatorship.
And while we are at it, what methods do you propose for applying intentionally vague language like this:
That’s the text that the Supreme Court is obligated to apply. Are you able to identify a line in the sand established by this language?
Obviously some provisions allow much less interpretation because they are specific:
Though, even here, there are mushy words, that might someday require interpretation. For instance, the term “Inhabitant” raises as many questions as it answers.
The medical marijuana matter has been decided as far as the present playing field is concerned. What is needed now is legislative action to change the playing field.
As I understand things, you can’t legally grow hemp right now for any purpose including that of getting marijuana to conduct an investigation into possible benefial effects. That needs to be changed. The NIH should be specifically authorized to investigate the matter so that the benefits, if any, could be brought to patients by a prescription from a physician within the regular health care system.
We can gripe, analyze and argue from now on but from an operational point of view it’s over unless the Congress can be persuaded to change the rules.
Well, legalizing marijuana is a whole seperate issue.
The legal machinery was what I was really interested in, and I should say thanks again to everyone who has participated in this discussion. I’ve learned a lot, and I’ve learned that there’s a lot I don’t like. Wickard was a real gutbuster for me, but now that I’ve taken a good look at it… well, now other things are busted.
It seems to me it would be far more productive to work to change Wickard through Congressional legislation than it would ever be try and get Congress to legalize marjuana. Marijuana, like all drugs, is available as a hot-button issue to be exploited by some politicos. Better to deal with the overarching issue of states rights and federal limitations, than to try and work a hot-button issue.
Besides, if we can successfully limit the reach of the fed, this and many other issue would again (rightly) be up to the state to decide. Then we could truly live in a democratic republic of states… instead of whatever it is we live in now.
The problem with this is, power is seldom given up willingly. Hmmm, perhaps I should start a new thread…
You see judges dutifully putting their morals at bay while making decisions on a procedural basis. I see judges using procedural issues as cover for either making moral decisions, or not making moral decisions they should make. I think I have a better grasp of human nature than you do.
I agree that Congress should have the power to enact laws like Title VII. The question remains whether a statute like that makes sense under the Commerce Clause.
The problem with “legislation” is that it is either superfluous or just won’t work in this case. Here is why:
The Commerce Clause imposes on Congress’s power.
If Congress does not want to use the full extent of its power, it doesn’t have to. A statute saying Congress can’t exercise its power to the full extent would therefore be at best a reminder (“Hey, we said we wouldn’t do this.”)
I know what you are thinking: Wait until we get an extremely Federalist Congress and then they can pass a statute that creates the high-water mark for Commerce Clause legislation. (Or maybe it was, “I could use a cup of coffee about now.”
The problem with this is that one Congress may not bind a future Congress. http://supreme.courttv.findlaw.com/constitution/article05/02.html (“Congress operates under no principle of stare decisis so that the decisions of one Congress on a subject do not bind future Congresses.”)
Allowing medical investigation of the effects of marijuana is no more “legalizing marijuana” than is permitting physicians to prescribe morphine is “legalizing morphine.”
The interstate commerce clause has been stretched to cover some amazing areas.
OK that’s another approach. My point was that the court of last resort has decided and it will be ages before such a decision would be overturned through the courts, so if the conditions are going to change it’s up to Congress. Arguing the Court’s decision is instructive but futile as a solution to what is perceived by many as a problem
Of course our 19th century “democratic republic of states” allowed some pretty undemocratic practices without a qualm. Human slavery comes to mind.
And this this is illustrated by the long struggle to overturn the states’ Jim Crow laws that were “democratically enacted.” Tt least they were by those who were allowed to vote by certain states in this “democratic republic of states.”
All that Gfactor said plus this. A real problem with Congress changing a decision of long ago like Wickard is that the effects of such a decision have been built into the economy. Businesses have adapted to the decision. Investment decisions; operating decisions and so on have been tailored to comply. The whole structure of the business world has accomodated the decision and it is usually a real upheaval to adapt to a new set of rules. I can’t point to any specific instances in the case of Wickard but such is the ordinary result in such cases.
Allowing NIH to investigate for any possible benefits from marijuana would answer some questions. ‘What is the actual ameliorative and does it have to be delivered by smoking a joint?’ is an example. ‘Can a synthetic drug be injected, ingested or sprayed into the air and get the same results?’ is another. It seems to me that the fact is that standard pain relieving medication doesn’t work in some cases and we really have only anecdotal evidence about marijuana. After all, the patients know they are getting marijuana which is alleged to help and the placebo effect can be quite strong. The caregiver also know that marijuana is being administered and might be more helpful and solicitous of those using it. Such TLC is, I believe, known to be helpful.
The feds wont give any such permission tho, at least not easily, in part because, as David Simmons pointed out about Wickard, marijuana’s illegality is now a part of the economy, and any change in that would change economic status and factors for many people and corporations (pseudo-people). And so we have had few studies of any kind done in this country about what is arguably one of the 2 most popular drugs/intoxicants under use by the citizenry.
I think the train has left the station on reining in the interpretation of the interstate commerce clause. The decision on which the court relied goes back to 1942 and other decisionsrelying on the clause are even earlier I believe. Their effects are now built into the structure of the system.