Interestingly, the Canadian Constitution has a similar federal “trade and commerce” clause, but our courts have never given it the wide scope that the US courts gave the US federal commerce power. Our federal parliament is limited to inter-provincial and international trade. Commercial transactions within one province are generally not subject to federal regulation.
Our equivalent of the 10th Amendment (a list of assigned provincial powers) has proven a better counter-weight to federal expansionist tendencies.
Early narcotic statutes didn’t necessarily ban them outright or make them controlled substances. For instance, California’s 1877 prohibition of opium dens did not ban the sale by druggists of paregoric or laudanum OTC.
IIRC this principle was established in Wickard v. Filburn in 1942. The government had set maximum allowable quantities of wheat to be produced based on a farmer’s acreage, in order to stabilize the market. Roscoe Filburn exceed those limits asserting this wheat was intended only for his own livestock. Substitute “wheat” for “opium” and you have the gist of that case. In 2005 this argument prevailed again in a case concerning medicinal marijuana in California. What interests me about these cases is that the legality or illegality of the commodity in question is irrelevant to the argument.
When states began voting to legalize recreational MJ, I was convinced that the DEA would immediately launch a massive enforcement campaign, especially when California did it. But so far that hasn’t happened.
IIRC, at the time, it was thought that the complete illegality of the marijuana trade would make a difference. At least with wheat, there was underlying the whole thing a legitimate interest in keeping a healthy national market for wheat. In Raich, there was no pretense that this was part of some regime to keep a thriving national trade in marijuana: it was a police power banning to keep people from using marijuana. Yet the Court still allowed it.
It would be like if someone gave me the power to regulate shipping on the Mississippi River and next week I’m telling you what color drapes you can hang in your house because that has derivative effects on what is shipped on the Mississippi.
Depending on what you meant, I’m not sure this comports with my understanding in that the Bill of Rights wasn’t originally understood to apply to the states. Thus, in the early days of the United States, even if there were a Constitutional right to do drugs, that wouldn’t necessarily have prevented the state governments from banning them. On my understanding, it’s only when this hypothetical right is incorporated against the state governments would they be unable to ban drug use.
Disclaimer: I am not a lawyer, and I certainly could have this wrong.
I’m not sure what that last sentence means. Nor am I a lawyer. Nevertheless, my understanding is that the Bill of Rights for the most part lists what the government *cannot *do rather than establishing rights for individuals. Just because something is not mentioned there does not mean there is a right to do it. E.g., the government cannot take away your right to a jury trial for major criminal cases, but that doesn’t mean you have a right to commit crimes. Had they wished to do so, states and communities could have always regulated drugs and the BoR was irrelevant to their doing so, just as no one could have used the BoR to keep governments from regulating them.
The problem with this discussion is that posters keep talking about a Constitutional right to *do *things, and there ain’t no such animal. Which makes it hard to refute any assertions about what might be true about them. Just as hard as it is to prove that the assertion is true.
Sure there are. A woman has a right to an abortion. There is a right to marry, including same sex marriage. I have a right to burn a flag.
Even less controversially, I have a right to go to church, to speak freely, etc. etc.
There are many constitutional rights to “do things.”
But I take your overall point which I believe is that the lack of a prohibition against something listed in the Constitution does not equal an affirmative constitutional right to do it.
What I’m getting at is this: Something like the First Amendment restricts what Congress can do, but it doesn’t restrict what the states can do until it’s incorporated (i.e. held to also limit state and local governments). So if the Constitution said, for example, “Congress shall make no law regulating the sale of alcohol” then the federal government can’t regulate the sale of alcohol but the state governments can, unless this clause is incorporated to the states in which case the states can’t regulate the sale of alcohol either.
Thus, this:
agrees with my understanding. But this:
comes down to precisely the point you raise: What does Chronos’ hypothetical “Constitutional right to do drugs” mean? If he means a clause explicitly forbidding both the states and the federal government from regulating narcotics, I’d agree with his conclusion that the states would not be allowed to ban them. But if he means a “Congress shall make no law regulating narcotics” sort of clause, I’m not convinced he’s right.
That’s the essence of the distinction I’m trying to get at.
The amendments in the Bill of Rights are not consistent in how they’re worded. The First Amendment, for instance, is phrased entirely in terms of “Congress shall not…”. But the Second Amendment is in passive voice, “…shall not be infringed”, without specifying who might be doing the infringing, and so anyone infringing the right to bear arms, federal, state, or non-governmental, would be in violation of the Second.
As a semantic and textual exercise, that might seem correct, but that’s not how the Bill of Rights was interpreted for much of the history of the United States.
It might be just the first amendment that explicitly limits Congress, but the founders and many who came after them, including Supreme Court justices, generally understood the Bill of Rights to be a document addressing the limits of the national government. It was only really the slow and still incomplete process of incorporation, begun in the wake of the 14th amendment, that protected these rights against state action. The excessive fines clause of the 8th amendment was only incorporated in the most recent Supreme Court term.
It comes down to shades of meaning of “rights.” If “rights” are actions that the government cannot ban absolutely, but can regulate, even to next to the point of extinction, then virtually everything is a right. A Floridian can stand his ground and freely murder based on a belief.
Most people would rather not define Constitutional “rights” as actions that they can freely do until the government notices. Being able to buy and distribute drugs was not a Constitutional right until the Harrison Law and its successors were passed. That was merely an action, one of several million that the population engages in.
“Constitutional rights” should be a narrow term for actions that the government must jump over a high bar to justify banning or harshly regulating. Flag burning is so obviously a political protest protected by the First Amendment that it is a poster child for what a Constitutional right should be.
Nevertheless, that first definition of “rights” may be a technical definition written into case law. If so, I’d like to see the rulings that say so.
I agree with you. There may be plenty of contention about what exactly the Second Amendment protects, but whatever it does protect, the “shall not be infringed” wording would seem to apply both to the federal government and to state governments. The problem is, the courts disagree.
In fact, the Second Amendment was only incorporated about a decade ago, in a 5-4 ruling in which the minority thought it didn’t apply to the states at all and the majority thought it applied via the 14th Amendment. But to the best of my recollection, no one said it applied to the states inherently by virtue of its language.
This is consistent, as quoted in McDonald, with a 19th-century decision which states, amongst other things, that
So while it might seem from the language that a hypothetical “the right of the people to use narcotics shall not be infringed” kind of amendment would have been understood to mean that neither Congress nor the states could ban narcotics, it isn’t so clear to me that the courts would have agreed.
With all respect, I cannot follow this at all and I’m not sure what you mean.
Let’s say that my city has no open container law. That means that I have a “freedom” or “privilege” or whatever you want to call it to legally drink on the street.
Even under this system, I do not have a Constitutional right to drink on the street as the city government has the power to pass an open container law at the next session and then I would no longer have that freedom or privilege.
But I do have a constitutional right to go to church. That is something that the city council, the state, or the feds have no power to deny. It is outside the democratic process.
For things that are debatable or don’t fall into neat categories, like flag burning, we have courts to decide where they fall on the spectrum. Far from being the “poster child” of rights, flag burning was a 5-4 decision that has excellent arguments on both sides for either being a proscribable act of conduct or an expression of speech.
As far as the private use of drugs, the Constitution is silent on it, and there have been no serious arguments that it is a right under some umbrella of privacy or the like. As originally understood, the federal government could not regulate the private use of drugs simply because it had no power to do so. In those states that did not prohibit drugs, one had the freedom or privilege to do so until or unless their state through the democratic process no longer permitted it.
I disagree. The entirety of the BOR was directed at the federal government, not at people as a whole or even governments as a whole. It has to be understood in its context.
If we have a Bill of Rights on the SDMB, it is implicit that any rights or limitations proposed are directed at the powers that be on the SDMB, not all people in all places. Any limitations are understood to be limited in that way.
The reason for “incorporation” is not because of a new understanding of the BOR but because of a doctrine called “substantive due process” in which the Supreme Court has held that the due process clause of the 14th Amendment protects more than mere process but that some rights are so fundamental that no process is sufficient to deny a person certain basic rights. Although some of those rights the Court has found are debatable, it has generally looked to those rights found in the BOR as those that are worthy of that protection.
As you just noted above, the BoR did not apply to the states originally. States could have prohibited church going, wholly within the democratic process.
As Exapno Mapcase notes, these two paragraphs are somewhat contradictory.
If you have a constitutional right to go to church (any church, or no church), and if that right is something that no local or state or federal government can take away from you, then that right is historically contingent on a series of legal and judicial changes that have occurred in the time period since the framing of the US Constitution. States had considerable power over religious establishment and worship and tests for public office in the early years of the republic, even if they generally didn’t choose to exercise that power. They could have prohibited you from going to church, and they could have compelled you to go to church.
Those two quoted statements are answering different questions.
The first was in response to the idea that the unique wording of the Second Amendment might mean that it was directed at the feds, the states, and even private individuals. I responded that such a reading was improper as the whole idea of the BOR was a list of thou-shalts and thou-shalt-nots directed at the federal government.
The second was a discussion of what a constitutional right is today, not at the founding. I agree with you that a state at that time could have banned church going, although such a thing would have been unlikely in the extreme and did not happen.