# State Rights. **URL:** \ **Category:** Great Debates\ **Created:** [February 5, 2003, 7:51pm UTC](https://boards.straightdope.com/t/state-rights/153032 "2003-02-05T19:51:42Z")\ **Posts on this page:** 12\ **Page:** 1
**Author:** ![Sinful](https://avatars.discourse-cdn.com/v4/letter/s/2bfe46/32.png) [@Sinful](https://boards.straightdope.com/u/Sinful)\ **Post date:** [February 5, 2003, 7:51pm UTC](https://boards.straightdope.com/t/state-rights/153032/1 "2003-02-05T19:51:42Z")
Should state individual states have more rights? Such as changing laws about weed legalization mercey power, abortion, etc. ---
**Author:** ![Hazel](https://avatars.discourse-cdn.com/v4/letter/h/e56c9b/32.png) [@Hazel](https://boards.straightdope.com/u/Hazel)\ **Post date:** [February 5, 2003, 9:54pm UTC](https://boards.straightdope.com/t/state-rights/153032/2 "2003-02-05T21:54:17Z")
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. ---
**Author:** ![zwaldd](https://avatars.discourse-cdn.com/v4/letter/z/a9adbd/32.png) [@zwaldd](https://boards.straightdope.com/u/zwaldd)\ **Post date:** [February 5, 2003, 9:56pm UTC](https://boards.straightdope.com/t/state-rights/153032/3 "2003-02-05T21:56:27Z")
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. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [February 5, 2003, 10:43pm UTC](https://boards.straightdope.com/t/state-rights/153032/4 "2003-02-05T22:43:38Z")
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. ---
**Author:** ![MEBuckner](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mebuckner/32/2896_2.png) [@MEBuckner](https://boards.straightdope.com/u/MEBuckner)\ **Post date:** [February 5, 2003, 11:46pm UTC](https://boards.straightdope.com/t/state-rights/153032/5 "2003-02-05T23:46:06Z")
> [@](#): > > \*Originally posted by Polycarp \* > 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. Ahhh, no. From [21 U.S.C. 844](http://www4.law.cornell.edu/uscode/21/844.html): > [@](#): > > It shall be unlawful for any person knowingly or intentionally to possess a controlled substance unless such substance was obtained directly, or pursuant to a valid prescription or order, from a practitioner, while acting in the course of his professional practice, or except as otherwise authorized by this subchapter or subchapter II of this chapter…Any person who violates this subsection may be sentenced to a term of imprisonment of not more than 1 year, and shall be fined a minimum of $1,000, or both… From [21 U.S.C. 812](http://www4.law.cornell.edu/uscode/21/812.html): > [@](#): > > There are established five schedules of controlled substances, to be known as schedules I, II, III, IV, and V… > > (1) Schedule I. - > > (A) The drug or other substance has a high potential for abuse. > > (B) The drug or other substance has no currently accepted medical use in treatment in the United States. > > © There is a lack of accepted safety for use of the drug or other substance under medical supervision… > > Initial schedules of controlled substances > > Schedules I, II, III, IV, and V shall, unless and until amended following drugs or other substances, by whatever official name, common or usual name, chemical name, or brand name designated: > > **SCHEDULE I** … > > Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation, which contains any quantity of the following hallucinogenic substances, or which contains any of their salts, isomers, and salts of isomers whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation: > > …Marihuana > > …Tetrahydrocannabinols ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [February 5, 2003, 11:57pm UTC](https://boards.straightdope.com/t/state-rights/153032/6 "2003-02-05T23:57:54Z")
> [@](#): > > \*Originally posted by Polycarp \* > \*\*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. \*\* [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] ---
**Author:** ![Rhum\_Runner](https://avatars.discourse-cdn.com/v4/letter/r/2bfe46/32.png) [@Rhum\_Runner](https://boards.straightdope.com/u/Rhum_Runner)\ **Post date:** [February 6, 2003, 12:12am UTC](https://boards.straightdope.com/t/state-rights/153032/7 "2003-02-06T00:12:14Z")
> [@](#): > > \*Originally posted by Hazel \* > \*\*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. \*\* 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. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [February 6, 2003, 12:12am UTC](https://boards.straightdope.com/t/state-rights/153032/8 "2003-02-06T00:12:30Z")
**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. ---
**Author:** ![MEBuckner](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mebuckner/32/2896_2.png) [@MEBuckner](https://boards.straightdope.com/u/MEBuckner)\ **Post date:** [February 6, 2003, 12:23am UTC](https://boards.straightdope.com/t/state-rights/153032/9 "2003-02-06T00:23:43Z")
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](http://www4.law.cornell.edu/uscode/21/801.html) (Congressional findings and declarations: controlled substances): > [@](#): > > The Congress makes the following findings and declarations: > > (1) Many of the drugs included within this subchapter have a useful and legitimate medical purpose and are necessary to maintain the health and general welfare of the American people. > > (2) The illegal importation, manufacture, distribution, and possession and improper use of controlled substances have a substantial and detrimental effect on the health and general welfare of the American people. > > (3) A major portion of the traffic in controlled substances flows through interstate and foreign commerce. Incidents of the traffic which are not an integral part of the interstate or foreign flow, such as manufacture, local distribution, and possession, nonetheless have a substantial and direct effect upon interstate commerce because - > > (A) after manufacture, many controlled substances are transported in interstate commerce, > > (B) controlled substances distributed locally usually have been transported in interstate commerce immediately before their distribution, and > > © controlled substances possessed commonly flow through interstate commerce immediately prior to such possession. > > (4) Local distribution and possession of controlled substances contribute to swelling the interstate traffic in such substances. > > (5) Controlled substances manufactured and distributed intrastate cannot be differentiated from controlled substances manufactured and distributed interstate. Thus, it is not feasible to distinguish, in terms of controls, between controlled substances manufactured and distributed interstate and controlled substances manufactured and distributed intrastate. > > (6) Federal control of the intrastate incidents of the traffic in controlled substances is essential to the effective control of the interstate incidents of such traffic. > > (7) The United States is a party to the Single Convention on Narcotic Drugs, 1961, and other international conventions designed to establish effective control over international and domestic traffic in controlled substances ---
**Author:** ![Hazel](https://avatars.discourse-cdn.com/v4/letter/h/e56c9b/32.png) [@Hazel](https://boards.straightdope.com/u/Hazel)\ **Post date:** [February 6, 2003, 10:40pm UTC](https://boards.straightdope.com/t/state-rights/153032/10 "2003-02-06T22:40:50Z")
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 ---
**Author:** ![Hazel](https://avatars.discourse-cdn.com/v4/letter/h/e56c9b/32.png) [@Hazel](https://boards.straightdope.com/u/Hazel)\ **Post date:** [February 6, 2003, 10:43pm UTC](https://boards.straightdope.com/t/state-rights/153032/11 "2003-02-06T22:43:49Z")
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. ---
**Author:** ![Rhum\_Runner](https://avatars.discourse-cdn.com/v4/letter/r/2bfe46/32.png) [@Rhum\_Runner](https://boards.straightdope.com/u/Rhum_Runner)\ **Post date:** [February 6, 2003, 10:52pm UTC](https://boards.straightdope.com/t/state-rights/153032/12 "2003-02-06T22:52:43Z")
**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…