Why did it take a constitutional amendment to ban alcohol but just a law passed by congress to give us the Controlled Substances Act ?
In 1919, when the Eighteenth Amendment was passed, the general view was that absent such an amendment, Congress lacked the power to prohibit the in-state possession and sale of liquor. This is exactly correct; under the Tenth Amendment, Congress has only that power granted to it by the Constitution, and nowhere therein did Congress have the power to ban booze.
However, in subsequent years, Congress’ role expanded. The ‘hook’ upon which this expansion rested was the Commerce Clause (Art. I, Section 8) which permitted Congress to regulate matters associated with interstate commerce. All that was needed was a determination that the substances to be controlled were affecting interstate commerce…
Could they have made such a determination back in 1919? No, because the general view at that time was that the Commerce Clause meant what it said.
That is not the case today.
- Rick
By the way – our case law is replete with examples reflecting the changing view of society as to the powers of government, having nothing to do with changes in the Constitution.
For example: everyone knows that if the cops illegally search your place without a warrant, they can’t use the stuff they find against you, right?
Right! And this protection derives from the Fourth Amendment, in effect since 1791.
But – did you know that until 1914, the federal government could use illegally obtained evidence against you? A long line of cases upheld that proposition… until federal marshals illegally seized papers belonging to one Fremont Weeks, and subsequently those papers were used to secure a conviction for selling lottery chances by mail. The Supreme Court, for the first time since 1791 decided that the Fourth Amendment was valuless unless it meant the federal government couldn’t use illegally obtained evidence against you.
Even then, state prosecutions were free to use illegally obtained evidence against you… until Mapp v. Ohio in 1961.
But both of these were predicated on an amendment that hadn’t changed one word since 1791! (The Fourth Amendment was made applicable to the states in 1868.)
So it’s not unusual for subsequent Courts to re-define what these things mean.
- Rick
Its wierd that we live in a country where our most valued laws seem so variable. But I think this is one our greatest strenghts. Every once and a while we’re not afraid to say that we were wrong and make changes. Sure it would be “easier” if we knew everything all at once, but how could our society “grow” and “learn”. IMO I think its cool. Its what makes America not just a country but the great experiment that it is.
Actually, the selective incorporation of the various parts of the Fourth Amendment into the Fourteenth Amendment’s prohibition on the states depriving one of life or property without ‘due process’ occurred over time, on a case-by-case basis. *Mapp v. Ohio * was a classic example.
As for the original post: It DIDN’T require the 18th amendment to prohibit the manufacture and sale of liquor, the just chose to do it that way, because it was more likely to succede in court at the time, and because it couldn’t be taken off the books by Congress at some later date (in fact, it took another amendment later to remove it).
It is cool.
There’s a doctrine called stare decisis, under which courts adhere to precedent on questions of law in order to insure certainty, consistency, and stability in the administration of justice. In other words, we ought to be able to count on laws meaning the same thing from day to day.
But stare decisis also makes room for overriding previously binding precedent to ensure, for example, that injustice does not result. The most famous hallmarks of case law all represent times in which the Supreme Court announced a new principle of law, overriding what had up until then been binding precedent somewhere: Brown v. Board, Miranda v. Arizona, Terry v. Ohio, Batson v. Kentucky, Blockberger v. US.
Some would argue that “criminals have too many rights now,” and that we’re going to hell in a handbasket because of it.
I’m not too terrifically concerned, because the same process that carved out those “too many” rights can act to self-correct it.
An excellent example: Dickerson v. US. This case was granted cert by the Supremes this term, from the Fourth Circuit. It stands for the proposition that Miranda warnings are not required in federal criminal cases; the only touchstone for a confession’s admissibility is its voluntariness. In essence, it ‘overruled’ Miranda, the case that required law enforcement officers to warn a suspect of his rights (“you have the right to remain silent, et. al.”). So the Supremes may decide this year if Miranda is still good law.
- Rick