A tangential question: Is the Commerce clause inapplicable if the state is a market participant?
Well, that’s the argument the King County Bar Association put forwards in its proposal for legalizing & regulating psychoactive substances, in Washington state.
This statement makes me think of the home brewers. Do their activities have an impact on interstate commerce?
Different strand of commerce clause jurisprudence. This is an exception to the Dormant Commerce Clause Doctrine, also known as the Negative Implications of the Commerce Clause.
Of course it did not. It also prohibits a Self-evident Right. It this case it is the Pursuit of Freedom from Pain and Disability. According to this ruling, Interstate Commerce is more important that Peoples’ suffering.
This is the Dred Scott mentality in action.
You did not answer my questions. What is to keep these Religious/Moralistic Tyrants from now adding alcohol to the list of prohibited substances?
Peace will be found only through Liberty
rwjefferson
Well, which one of them’s in the Constitution? I blame that Madison – he was tricky.
I suppose I could ask you to explain that, but I think I’ll just :rolleyes:.
Nothing.
Oh my God! Congress can pass laws we don’t like! Alert the media!
The solution to this problem is to pressure your Senators and Congressional Representative to change the law, rwjefferson. It is not to decry judges from making the corrrect legal decision in an easy case.
–Cliffy
Isn’t the central issue in this case whether states can override federal laws? The Feds say no to medical marijuana, the states say yes… the federal law trumps the state law.
As Cliffy suggests, the solution is simply to pass a Federal law allowing medical marijuana. If rwjefferson is correct about “the Pursuit of Freedom from Pain and Disability” being a self-evident right, then getting the new legislation passed won’t be a big challenge.
Reviewing the thread, some of us have been talking over the heads of the layman, Billdo in particular excepted (me not).
Anyway, here’s a very basic (and oversimplified) sketch of federalism in the U.S. I apologize if you know all this already, but probably someone reading the thread will not.
Under the federal constitutional scheme, governmental power is separated into two levels: the 50 State governments and the single federal government. The States all have essentially unlimited power over their citizens. In particular, states have the police power, which is the plenary (read: unlimited) power to regulte the health, safety and morals of their citizens.
This is to be contrasted with the federal government. It is a government of limited powers. Congress can make laws (and the President and the FBI can enforce them) only if they are authorized by one of the 20 or so specific powers of Congress set out in the Constitution. Most of them are in Art I., Sec. 8 or in the Amendments, especially the Reconstruction Amendments (Amend. 13-15).
Most of these enumerated powers (so called because they are specifically listed in the Constitution) are pretty specific. For instance, Congress has the power to establish a post office. It has the power to raise and fund an Army and Navy. It has the power to make treaties. It has the power to abolish slavery. It has the power to run the District of Columbia. It has the power to tax, and it has the power to spend its tax revenues. And it has the power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” This (particularly the bit about the several States) is called the Interstate Commerce Clause, and it authorizes Congress to make laws regulating interstate commerce. Congress also has the power to “make all Laws which are necessary and proper for carrying into Execution” these various powers.
Well, clearly there’s a conflict here. The States have plenary power in a wide field. The fed has power in an ostensibly much more limited field, but obviously there’s overlap. When the federal and State governments disagree, whose authority controls? This question is answered by Art. VI, Sec. 2, which states that any laws and actions taken under the federal Constitution shall be “the supreme law of the land.” Ergo, when the federal government and state governments conflict, the fed wins. Period. There can be no dispute.
If only it were that simple.
Remember, the fed is a government of limited powers. So Congress has authority to pass a law if and only if it falls under one of the federal govenrment’s limited, enumerated, specified powers. So if a federal law is acceptable under the Constitution, it is supreme over conflicting state law. However, Congress has been known to overreach from time to time and pass laws that the federal government has no business passing. If the federal government is trying to pass and enforce laws that do not arise from any of the specific enumerated federal powers, they are not valid exercises of federal power under the Constitution, and therefore they are not supreme. Meaning the States can pass any conflicting legislation they wish and then tell the fed to go hang.
This brings us to the issue in the case. Congress says that it can regulate drugs because they impact interstate (and foreign) commerce. Clearly this is true; drugs are a huge part of the shadow economy and they move across national and State lines every day. However, as part of its regulatory scheme, Congress has passed laws which apply not only to drug traffckers who cross State lines, but which also apply to people who grow their own, don’t sell it, and never leave their State. So the question becomes, is that an overreaching by Congress? Remember that Congress does not have a general power to affect commerce or health and safety within state borders – it can regulate only Interstate Commerce. Is the personal intrastate growing and use of MJ something that has an effect on the interstate market for MJ?
The answer is yes. Wickard v. Fillburn, decided in the '30’s, was essentially the same case. At the time (the Depression), the prices for wheat were controlled and it was illegal to grow more than X amount of wheat a year. One farmer grew twice as much as his allowed amount of wheat, which he used all himself, did not sell, and did not transport across state lines. The Court found that even this had an effect on the interstate market, because that meant he didn’t buy wheat that had moved in commerce. In the aggregate, that could frustrate the Congressional scheme of price controls. Therefore, even this small, intrastate action could be prosecuted under the laws protecting the price controls. In yesterday’s case (which I ain’t read yet), the Court presumably followed similar reasoning to establish that personal intrastate growth and use of MJ also has an effect on Interstate Commerce, and is therefore regulable (and prohibitable) by Congress.
To answer your specific questions – no, states are not required to base their drug laws on commerce. As discussed above, states have the police power, which means they can pass whatever drug laws they want (oversimplification). The federal government, though, can pass and enforce drug laws only as an exercise of one of its enumerated powers. The fed has no general power over health, morals, etc., and therefore has used the Commerce Clause as the basis for its drug laws.
As for federal laws on marriage – basically, there aren’t any. Marriage is strictly a state affair, which is why Massachusetts can legalize gay marraige without asking Congress or the President’s permission. Under the Constitution as it currently stands, Congress has no power to prohibit gay marriage if a state wants to recognize it. Which is why Congress tried to start the ball rolling on a constitutional amendment which would have given it the power to trump the marriage legislation in a State with which it disagreed. (Given that this is GQ, let me pass on my opinions of such an amendment, merely noting that it would unquesionalby be, if it had passed, the largest expansion in federal power at the expense of the states since Wickard, and IMO since Reconstruction.)
As for education, again, you’d be surprised how little federal law there is. Most of education policy is left to the states. However, the fed has had an increasing role in educational policy through its spending power. Basically, the fed establishes “voluntary” standards which the states must meet to qualify for federal education $$$. That’s why you hear about states opting out of No Child Left Behind – if the state’s don’t find it worth the dough, they don’t have to play, because Congress has no power which authorizes it to mandate education policy.
Etc., etc.
–Cliffy
Crap. I’ve asked a mod to fix the coding.
–Cliffy, again, with egg on his face
Good job Cliffy. There are a few minor nitipicks that I could make, but I have to meet with HUD investigators all day today, and most of the stuff I would say would be GD material anyway.
Unfortunately tyrants do not recognize the self-evident Truths of our Founding Fathers. Furthermore, tyrants do not recognize that it is the duty of government and especially the Supreme Court to secure these rights for All.
It is not written in the Constitution that the Supreme Court has the Jurisdiction to Rule that Laws are Un-Constitutional. Statesmen recognize the difference between law and justice. Politicians and attorneys and tyrants do not.
It is truly sad for this Country and the World that we have lost our moral compass.
Peace through Liberty.
rwjefferson
For those interested in getting beyond the “factual” and into the “political”, there’s a GD thread on this subject. It’s obvious from the title which one it is.
Uh, you realize this was a court case, right. I agree that law and justice are not necessarily co-extensive. But it is absolutely not the judge’s role to ignore the law for his personal view of doing justice. It is the judge’s role to analyze an dexplicate the law. If you are unhappy with the result in a given case and feel it reaches an unjust result, then you need to get the law changed – not just tell the judges to stop enforcing it. This is not a merely formal distinction. Judges, especially federal judges, can tell you to fuck off if they happen to disagree with you. Politicians cannot, becaues they need your vote. This is exactly why we leave policy decisions to the political branches – they cannot function (indefinitely) without political support. So they are therefore accountable to the people and can (and must) change policy to the people’s wishes.
Or would you rather rail impotently at Justice Stevens who plainly wishes the law were different than it is but knows that he has no right to change it?
–Cliffy
P.S. Thanks for the coding fix, Doc.
Please keep this thread factual. Thank you.
-xash
General Questions Moderator
Just how binding is “binding precedent”? Do they have to follow it, or can they ignore (change?) precedent if they feel that there is a good enough reason?
I had thought that it was the latter, but this thread makes it sound like they have no choice but to follow precedent.
This issue is addressed by the doctrine of stare decisis. According to the Court:
(citations omitted)
So, answering your second question first, they don’t *have *to follow it. But they think the interests served by following it sometimes justify leaving intact a rule with which they don’t agree.
Here is what they say about what they think about when they consider overruling a precedent:
it consinders a “series of prudential and pragmatic considerations designed to test the consistency of overruling a prior decision with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling a prior case.”
*Id. *
[ul]whether the rule has proven to be intolerable simply in defying practical workability[/ul]
[ul]whether the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation
[/ul]
[ul]
[li]whether related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine[/li][/ul] [ul]
[li]or whether facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification[/li][/ul]
In the last case to outright overrule a constitutional precedent, this discussion ensued.
Majority:
(The Court goes on to decide that the previous rule had not induced reliance.)
Dissent:
(Scalia goes on to argue that the Bowers should stand even under the “new” standards).
So the Justices don’t all agree on what the proper standards are or how they apply to a given case.
There is also the related issue of whether a case can be distinguished or construed narrowly. You can find some links on this topic and an application of some of the ideas in this post .