Should state individual states have more rights? Such as changing laws about weed legalization mercey power, abortion, etc.
I think they should. But I don’t see much chance of turning the clock back. The Feds are in charge; the states have no powers that the feds need respect.
States should have the power to grant rights, not take any away. Problem is deciding when one person’s rights infringe on another. Does the right to an abortion infringe on a fetus’s right to life? Does the right to smoke marijuana infringe on someone else’s right to…oh I don’t know…um…not to…er…I really can’t finish this sentence.
States do not have rights; they have powers.
Individuals, and groups of individuals have rights.
States have all powers which are not (a) ceded to the Federal government in the Constitution and (b) in violation of an individual right as defined in the Federal or state constitutions.
With regard to your various examples, states have the right to regulate weeds in your yard, though this is usually delegated to local government, and to declare specific plants (e.g., water hyacinth, purple loosestrife, kudzu, as ‘noxious weeds’ the eradication of which is declared public policy. Supposing, however, that you were referring to marijuana, any state is completely free to legalize it or decriminalize it, and a few have done the latter. Federal law only covers interstate transportation of it or commerce in it in violation of applicable law. By “mercy power” I presume you’re referring to the pardoning and commuting powers of (the President and) governors – which are IIRC common law powers inherent in the office, and which can be regulated or removed by state statute. Abortion, on the other hand, may be regulated within limits by states, but in Roe v. Wade and subsequent decisions the SCOTUS has found a constitutional restriction on a state’s power to keep a woman from having an abortion; the jurisprudence on what states may or may not do in that regard is confused, to say the least.
[Extremely pedantic nitpick]
The Presidential pardon power is found in the Constitution. Most governor’s pardon powrs are found in individual state constitutions (though it may be by statute, depending on the state). In any event, although rationale for the grant of the pardon power may be traced to a historical power traditionally wielded by kings (and thus, in a sense, “common law”), in the US that power is derived by explicit grant in some governing document, e.g., a constitution or statute.
“Common law” usually means either (i) derived from longstanding historical traditions of English law or (ii) the decisional law of the courts, e.g., case law. In the US, the pardon power is derived from neither, and thus are not properly described as “common-law powers.”
[/Extremely pedantic nitpick]
That’s is quite a broad brush you are painting with there. True, federal law trumps state law in those few areas where Congress has the power to make laws, but almost all criminal law remains state law, as does property law, and tort law. The feds must still respect the sovereign immunity of the states.
MEB and DC&H – thanks for the corrections.
Buck, any idea of what the justification for that law (other than the obvious one of “dangerous drugs are dangerous” is) – the grant of power under which Congress is empowered to have passed it? The USC of course doesn’t give it, though it’s normally stated at the beginning of the bill/act that places a given law in the USC.
I ask because, save for the “common defence and general welfare” provision at the end of the grant of Congressional powers (which is usually considered extremely flimsy ground Constitutionally) I cannot see where Congress has the power to enact that law as it reads, and I’m intensely curious what justification they used.
I believe the justification actually does have something to do with the “interstate commerce clause”, it’s just that, in practice, the interstate commerce clause is construed awfully damned broadly. From 21 U.S.C. 801 (Congressional findings and declarations: controlled substances):
Yes, I was probably too sweeping. I’m very bummed about the FedGovt’s actions re medical marijuana in California.
Also, in a separate, more minor issue, I don’t like the way they bully the states into doing their will by threatening to withhold money. For example, the 50 MPH speed limit and the age-21 drinking laws
I wish the founders had omitted that bit about regulating interstate commerce, or made it narrower (limited to what a normal person would actaully think of as “commerce”). Seems to me it’s been misused.
Hazel I agree completely that the Commerce Clause has been twisted beyond recognition. There may be hope, see US v. Lopez (I think that is the case, I can look it up if you want) wherein SCOTUS invalidated some federal gun control statute inacted under the CC. Personally, I think we can all blame FDR, but that probably deserves another thread…