Minty:
In response to your snooty post, above, I’ll give you this example to “demolish”: Federal minimum wage laws. Where in the constitution do the feds get the authority to mandate that a business, fully contained within one state, must pay it’s workers a minimum wage? Why is that not strictly a state’s authority to set or not to set minimum wage levels.
I see that others have already given some examples, too. Demolish away!
“Snooty”? My dear man, I may be a snoot of the first degree, but at least I am not as woefully uninformed as you regarding the powers and constitutional authority of the federal government. Let’s go through this list, shall we?
Marijuana: Commerce clause. Surely, you’re not going to argue that pot isn’t an item of vast interstate commerce?
DOMA: Mostly regulates the federal government’s own programs, like Social Security, Medicare, etc. It does not prevent states from doing anything they want to do. If you have evidence to the contrary, lay it on the table.
(Note to Poly: We’ve been through the FF&C clause before, and you’re still mistaken about what it requires and its applicability to DOMA. The DOMA provision that states need not recognize other states’ same-sex unions is clearly not a violation of the Full Faith and Credit clause, as that clause does not require states to recognize extra-territorial public acts that are contrary to the state’s public policy.)
Federal hate crimes laws: Apply only to federal crimes. You know, crimes against federal employees, crimes that cross state lines, etc. Again, if you have any example to the contrary, put it on the table.
Gun laws: Commerce clause, with a bit of foreign commerce clause power thrown in as well for the regulation of guns manufactured in other countries.
Campaign finance reform: Applies only to federal elections, which are unquestionably an area that may be regulated by Congress under authority of Art. i, sec. 4 and the commerce clause. On the CC’s applicability to federal electioneering, see Burroughs v. U.S., 290 U.S. 534, 544-45 (1934) (approving federal regulation of “political committees” that were “organized for the purpose of influencing elections in two or more states”).
Minimum wage laws: Commerce clause. Indeed, the federal minimum wage applies only to “employees who in any workweek [are] engaged in commerce or in the production of goods for commerce, or [are] employed in an enterprise engaged in commerce or in the production of goods for commerce.”
Now of course, you can reasonably argue about the wisdom of any of those federal legislative acts. But you cannot reasonably claim that the broad scope of the federal government’s delegated powers somehow means that it has “ignored” the Tenth Amendment.
“Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” McCulloch v. Maryland (1819).
True, but it isn’t necessarily an item of interstate commerce. Take for example the owners of the California co-ops, where pot was grown (legally under state law) and sold to local consumers. Their marijuana production and sale was not an act of interstate commerce, and it seems an abuse to say, “Since pot is frequently a commodity of interstate commerce, pot is always subject to federal law, whether or not it is being used as a commodity of interstate commerce.” In fact, the Controlled Substances Act, reads:
In most such cases, (e.g. Mann Act) where the federal government is attempting to ban what could be labeled a “common crime”, it at least makes the attempt to insert the requisite “in interstate or foreign commerce.” The CSA is unconstitutionally placing a federal ban on all drug activities, even when such drug activities do not affect a constitutional federal area of operation.
Well, I said your post was snooty, not you, personally. But can you drop the condescending tone as we debate this? Think of it as being unsportsmanlike to deride a non-professional (as well as being contrary to the rules of this forum against personal attacks).
Let’s look at the commerce clause:
Surely it depends on your frame of reference here. If you take a strict view of the constitution, then there is nothing here that allows the Feds to interfere with “commerce” within a given state. Of course there are plenty of court cases that argue it’s OK for the feds to do this, but if all we do is accept the court’s rulings, then there is never anything to debate, is there? It’s OK because the court says it’s OK. That’s no fun.
Marijuana laws could be interpretted the same way. Of course, pot COULD be transported across state lines. By that judgement, there is nothing that is truly under a state’s own juresdiction. But what does that have to do with the feds shutting down Medicinal Marijuana outlets in CA? Or the threat to intervene in NV had they legalized marijuana for personal consumption?
See, you really are griping about the Commerce Clause–just like I said in my initial post.
But I betcha a bunch of the stuff they used to grow that weed moved through interstate commerce. Grow-lamps, fertlizer, bug spray, you name it. All the feds need is a pretty decent connection to interstate commerce, and suddenly the subject is within the scope of the commerce clause. *See, e.g., Katzenbach v. McClung*, 379 U.S. 294 (1964).
Not to mention that the availability of state-sanctioned weed in California affects the market for weed across the country. *See Wickard v. Filburn*, 317 U.S. 111 (1942) (“That appellee’s own contribution to the demand for wheat may be trivial by itself is not enough to remove him from the scope of federal regulation where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial.”).
Minty: I will concede that you certainly have the enabling clause that Congress wrote into the DOMA act and much (though not all) of the scholarly writing on it in support of your contention. But AFAIK no court has ever ruled on the constitutionality of DOMA. And I am advancing the argument that the first sentence of Art. IV, Sec. 1 places an affirmative duty on the states from which Congress may not use its “uniform rule” authority in the second sentence to totally dispense them. Nor may they so define their public policy as to evade that duty – what if New York or Texas decided that immediately from henceforth it would be their public policy not to recognize the existence of Delaware corporations?
Depends why they refuse to recognize their corporate existence. If it’s because of something under Delaware law that causes the corporation to be against the public policy of their own state–for instance, if Delaware law completely immunized officers of Delaware corporations from civil and criminal liability for decisions made on behalf of the corporation–then New York or Texas would be legally entitled to tell Delaware to get bent.
Incidentally, I agree that the FF&C clause probably does not give Congress the power to tell states that they cannot recognize each others’ acts. DOMA does not do so; instead, it clarifies that the states are not required to recognize each others’ same-sex unions, while leaving it up to the states to do so if they want to.
I would also suggest that the future litigation on this subject is likely to be a whole lot of fun. 
Heh heh. Yes, I’m back. BrainGlutton, I lay claim to be the only regular poster on the SDMB to champion Polycarp’s “A” reading above (a position I’d be more than happy to yeild to someone else: my only qualifications being that I am enthusiastic, a philosopher, and not a lawyer).
I go on (and on) about my view in the “Rights? What rights?” thread. And I don’t care if anyone wants to be snooty OR condescending!
I’ll say what I have to say as concisely as possible:
No clause of the Constitution is to be construed as superfluous or merely rhetorical. Every clause is presumed to have some potential legal effect distinctly its own, and thus to guide the Supreme Court (SCOTUS) to decide such cases as may arise under the Constitution. Thus do I do honor to the Framers and the Ratifiers.
But I refrain from honoring them enough to take their own stated or written interpretations of those clauses at face value. Or perhaps I should say: I do them further honor by presuming that they were bright enough to realize that, beyond establishing certain definite specifics (no amount of “liberal” interpretation allows you to be President unless you’re at least 35), they were also establishing a self-sustaining governance system with a certain general shape and intent, which must be capable of modestly bending with the times lest it break. [On my tombstone: “Here lies Dickerson; finally broke.”]
I maintain that one very central aspect of that “general shape and intent” is the concept of what is usually called “natural rights.” The term means different things to different people: what I mean is that persons have certain rights to do, or not do, certain kinds of things without the leave of any government or law, merely by virtue of the fact of being a living human person. Government is not to transgress upon those rights: thus it is to be a government of limited power and republican form.
One set of natural rights is mentioned in the original body of the document: the “privileges and immunities of citizens.” There is no reason whatever to impose upon these words a compass limited to political-legal matters (such as voting). The Legislative branch is free to consider other possible privileges and immunities in its deliberations. The Executive is free to veto a Legislative act according to its own consideration of such privileges and immunities, and also to shape its enforcement practices in those lights (at some risk of impeachment, conviction, and removal). The Judicial is likewise free to allow such considerations to inform its decisions.
But that word “citizens” must be taken seriously; hence there is logical room for documentary recognition of those privileges and immunities that accrue, not just to citizens AS citizens, but to any person subject to the reach of American law. The 9th Amendment recognizes such rights-of-persons (their “natural rights”) and enjoins the entity most directly informed by the Constitution, the government(s), that they shall not be “disparaged.” This means that such rights shall not be given short-shrift, shall not be treated as of lesser rank or import than those rights expressly stated; shall be taken into account. Neither the Law nor the Prophets have license to violate them.
And the same with the 10th, which reserves powers not expressly delegated to the Feds to the States “OR(!!) the people.” [If it had said “AND the people,” it might have been supposed–as some now do erroneously suppose–that the reference was to “person-in-State” (like “Queen-in-Parliament”): the popularly chosen State governments.] The phrasing of the 9th and 10th taken in tandem suggests that the 9th deals with those natural rights that involve “freedom from,” the 10th those that involve “freedom to.”
Most lawyers, politicos, and historians reject my interpretation. No law of nature prevents the majority from being wrong.
Is this interpretation antidemocratic? It might be taken so, if you are committed to the belief that “elections” is the very essence, and full extent, of popular sovereignty. I say that it is incumbent upon the truly democratic state to ensure the rights of all the populace, not merely those rights that are pleasant and convenient to a majority (much less those enthused minorities that actually elect and instruct our leaders).
Minorities need their protectors: not just in the ever-unattainable long-run in which we somehow “win elections,” but right now, today. And I know; for no one is less of a majority, nor more of a minority, than moi!
Strict constructionists today take the position that unless a right is specifically described in the Constitution, it doesn’t exist. Thus, they decry decisions founded upon a “right to privacy” since no such right is enumerated in the Constitution or its amendments.
Strict constructionists hate the 9th amendment because it undercuts their arguments. The founding fathers never intended the Bill of Rights to be an exhaustive list of the rights of man. In fact, it was the fear that it would be taken as such which prompted them to include the 9th Amendment in the first place.
Maybe, maybe not. The problem is that the CSA also includes cases where there was no interstate commerce at all. Are these few and far between? Probably. But as I noted, there is no requirement in the CSA that any interstate commerce has to have occurred for a crime to have been committed. Since it is not an element of the crime, the feds do not have to prove that anywhere along the way, interstate commerce was used to advance the crime, and really, that is a requirement for the basis of the law.
I realize that SCOTUS decisions are the standing interpretation of the Constitution, but it seems to me that the court’s decision in Katzenbach (of which I’ll concede I only read the summary) was not the correct one. The connection to interstate commerce is both weak and assumed. What is the threshold of connection to a recognized constitutional federal interest for regulation of a particular act to be within the fed’s constitutional power? For instance, can anything which could potentially used to create income, or affect it in some other way, be banned, since the federal government has the power to collect taxes on income? Sounds a little extreme to me, but also seems to go along the same lines as your argument (or rather SCOTUS’s in Katzenbach). It definitely appears overbroad, and in violation of the spirit and letter of the Tenth Amendment.
Far from it. At least among the laypersons on the board, yours is the majority position, since that reading enables one to argue that whatever one’s pet “right” is, it is constitutionally enshrined via the 9th Amendment. Bah humbug.
Reading B is anything but superfluous or merely rhetorical. It is an important point of federalism, establishing a strict limit on the ability of the federal government to deny rights guaranteed under state (or other) laws.
So what’s the point of the written text at all, then? And I’m not talking about expansive, undefined terms like “due process,” “unreasonable search,” and “interstate commerce.” If you’re going to ignore the plain and unambiguous language of the 9th Amendment–which says nothing about being the source of any unenumerated right–why bother to have the written amendment at all?
So nobody can agree on what the heck it is, and it’s not even mentioned anywhere in the text, but it’s nevertheless enshrined in the Constitution? Sorry, I’m just not buying that one. I’m anything but a strict constructionist, but you gotta have some kind of origin in the text, however vague or begging for judicial interpretation, before you can go down that road.
So what? If the defendant wants to challenge the application of the federal marijuana laws to him on the basis that none of his stuff had any connection to interstate commerce, he’s free to do so. Heck, I seem to remember a 9th Circuit case from law school that said the home-grown nature of the devil weed meant that it was not always subject to federal regulation. My recollection is hazy, but as far as I know, that’s still good law. If the Oakland Cannabis Buyer’s Coop wanted to defend itself by showing that it didn’t use anything that traveled through interstate commerce and didn’t otherwise affect IC, it could have done so.
Well, it could have attempted to do so. It wouldn’t have worked, because the facts almost certainly would have shown that there was indeed a real connection between what they were doing and interstate commerce.
The question is a little bit odd, but it’s well-established that the federal taxing and spending powers are essentially unlimited. If Congress wants to tax french fries into oblivion, it can do it, and if it wants to spend huge wads of cash on bourbon and lotto tickets, it can do that too.
The Interstate Commerce Clause is a little far from the original premise, though I see the nexus to the Tenth Amendment. However, wild horses usually can’t keep me from a Constitutional law debate, so…
The usual nexus through which something produced and marketed within a state is brought under Federal regulation through the elasticity of the Interstate Commerce Clause is that its marketing will have an effect on the interstate commerce in that substance through increasing the available supply and therefore modifying the price, however imperceptibly.
But here we have a substance which is deemed legal to possess and traffic in under California Law (at least in particular circumstances) which Federal law makes illegal. Therefore there can be no licit interstate commerce in the substance which the intrastate commerce would influence.
Have I actually found a limit to the powers of the Interstate Commerce Clause? Or is something erroneous in my reasoning?
Minor hijack: If the Federal antidrug law were founded in the Tax Clause, as a means of “providing for the genral welfare of the United States,” would such a legislative finding of authority pass Constitutional muster?
You’re going at it ass-backwards, minty. The Bill of Rights does not purport to create rights, only recognize them (an important distinction). When the idea of tacking on a Bill of Rights at the end of the Constitution was raised, some objected that it would be impossible to list all rights, and that any attempt to do so would create the rist that the enumerated rights would be regarded as an exhaustive list. The 9th Amendment was inserted specifically to guard against that reading.
So yeah, I think if you had asked the founding fathers whether there is a “right to privacy” for example, they would have responded, “Of course there’s a right to privacy! (Damn! Should have put that one in there! Oh well, that’s what the 9th Amendment is for!)”
It was intended as a catch-all.
Posted by John Mace:
So what? The Declaration of Independence, which was written eleven years before the Constitutional Convention, has absolutely no relevance to American constitutional law. That is, you cannot cite the Declaration as an authority in support of a legal theory. The Constitution of the United States (capital “u”) makes clear in the Preamble that its authority rests, in principle, in “We the People,” not “We the States.”
Posted by December:
Allow me to clarify. The constitutionality of the gradual expansions of federal power was something we did indeed spend a lot of time studying and discussing in law school. What I found remarkable was that the 9th and 10th Amendments never seemed to come up in connection with those discussion.
You’re missing two things: (1) Congress can regulate intrastate activities that themselves involve items of interstate commerce. See Katzenbach. (2) Congress can regulate the production of crops and products, even if intended solely for personal consumption or intrastate sale, because such production affects the interstate market for such crops or products. See Wickard.
Not sure what you’re thinking of here. Congress could certainly impose a tax on illegal drugs and criminalize the failure to pay the tax, if that’s what you’re wondering.
As a matter of simple grammar, this is quite incorrect. Often, the BoR simply prohibits the federal government from acting in certain proscribed manners, e.g., “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The language of the 6th Amendment even seems to create certain rights: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . . .” Still other times, the text seems to recognize a pre-existing right, such as “the freedom of the press.”
The point being that the founders didn’t particularly pay any attention to whether they were creating or recognizing a right, or just proscribing certain actions on the part of the government. And if they couldn’t be bothered to care, neither should anyone outside the Philosophy Department.
Although I’d add that it ought to be patently obvious that a “right” is entirely meaningless if it isn’t reconized under the law. Whether it’s freedom of the press, the right to a speedy trial, or the inability of Congress to prohibit the free exercise of religion, if you repeal those amendments, it won’t do anyone a lick of good to demand those rights when the ATF comes a-knockin’.
Nonsense. Just ask the guy who wrote the 9th Amendment, James Madison:
Dude says absolutely nothing about the amendment recognizing other rights, just preventing anyone from construing the BoR as an exclusive list of rights.
Why should they? The 9th is basically irrelevant to the commerce power, and the 10th merely states that what is not granted to Congress is retained by the states. That certainly does not define what is granted to Congress, and that’s the question you’re answering when trying to delineate the scope of the commerce clause.
John Mace: The Reason, that the Declaration of Independence says “the united States of America,” with that Capitalization, is that there was a Fad among Writers, in that Period, to follow the Example of the Germans, and capitalize all Nouns and only Nouns, save for the first Word in the Sentence, and also to use Commas, that Stylists today would call improper Usage, much as I have written this Sentence.
Wickard is the one where the farmer grew wheat to make his own bread and got penalized under the AAA for it, right? Great precedent: I must remember to tell my neighbors with the garden that there is legal precedent for them having to get prior USDA approval for what they grow in it if GWB ever takes it into his head to regulate gardening.
But you missed my point: since growing and commerce in marijuana is illegal under Federal law, there is no interstate commerce in it, at least legally. Whereby intrastate growing and commerce in it (presuming nothing transported across state lines is used in the process) has no effect on interstate commerce. (Perhaps a manufacturer of a glaucoma drug or a legally manufactured narcotic indicated for terminal pain might be able to make a case that legal marijuana use influences the sale of their drug in a civil case, but that seems an inadequate tie to interstate commerce to justify application of the federal law.)
I do see your two points – but they don’t address the question of how the federal government can legislate regarding materials exclusively in intrastate commerce when there is no legal interstate commerce in those materials (because it is forbidden by federal law).
I am sorry; we probably will never see eye to eye on this. But your first quotation from Madison flat out admits that there are other rights not enumerated in the BoR, that the fact that it would be difficult if not impossible to enumerate all the rights of man is one very good argument against a BoR, and specifies that the Ninth is in there as a protection against the strict constructionist argument that the only Constitutional rights are the ones enumerated. Read it through again – remembering that for the Founding Fathers, “rights” were not merely the concepts of law books – between eleven and four years before the Constitutional Convention they had fought a bloody war to secure those rights from a mercantilist British Government and Parliament. If something was a right, it was, in their eyes, inalienable, and it was the duty of government to recognize and guarantee it.
How you define what it is that the Ninth protects is, I admit, a debatable question. But that it simply says that the government can graciously grant other rights by statute or state constitution, revocable at its pleasure, and merely protects such largesse from being argued against as unconstitutional on the basis that all rights are enumerated, is purest poppycock.
I suspect Madison expected that judges would simply use their common sense – you’ll note early rulings that are questionable from the perspective of legal reasoning, though unquestioably just. My proposed formulary, over in the other thread, may be too nebulous. But as tendencies continue growing, at the local level to be Mrs. Grundy and mind one’s neighbor’s business by trying to legislate about it, and at the national level to focus so specifically on national security as to raise serious questions about how far we can take for granted the constitutional protections heretofore enjoyed – well, inevitably someone is going to be claiming a right that is by no means laid out in law, but which makes sense to a large part of the American people. And before that causes harsh and intense debate, I’d like to see us figure out how to determine what such rights might be.
Darn straight.
Sorry, I missed that part of the commerce clause where it says it doesn’t apply to illegal commerce.
Of course, it says no such thing. Commerce is commerce, Poly, whether the goods are legal or illegal.
Nonsense. Increased supply means decreased price. The effect of the Oakland Cannabis Coop alone may be minimal, but as Wickard recognizes, the real question is what happens if everybody can do what they do. It’s no argument to claim that X should be legal because an indvidual incident of Xonly causes an insignificant amount of damage.
YES!!! That’s exactly my point!
What you’re missing is that neither Madison nor the 9th Amendment say that the amendment is a source of other, unenumerated rights.
Other rights exist.
The 9th Amendment recognizes that other rights exist.
The 9th Amendment does not say what those other rights are.
The 9th Amendment does not recognize any particular right.
Seriously, Poly, how on earth do you get from “Other rights exist” to “The 9th Amendment protects the right of citizens to pet fuzzy pink bunnies”?