# Why are certain substances illegal again? - US Constitution question **URL:** \ **Category:** Factual Questions\ **Created:** [May 22, 2011, 1:41am UTC](https://boards.straightdope.com/t/why-are-certain-substances-illegal-again-us-constitution-question/582740 "2011-05-22T01:41:29Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![KGJIII](https://avatars.discourse-cdn.com/v4/letter/k/c0e974/32.png) [@KGJIII](https://boards.straightdope.com/u/KGJIII)\ **Post date:** [May 22, 2011, 1:41am UTC](https://boards.straightdope.com/t/why-are-certain-substances-illegal-again-us-constitution-question/582740/1 "2011-05-22T01:41:29Z")
How does the Constitution of the US allow for the prohibition of substances. Is the thought that the states are allowed to regulate safety and some people don’t know how to protect themselves adequately… or some other reason? ---
**Author:** ![friedo](https://avatars.discourse-cdn.com/v4/letter/f/8edcca/32.png) [@friedo](https://boards.straightdope.com/u/friedo)\ **Post date:** [May 22, 2011, 1:52am UTC](https://boards.straightdope.com/t/why-are-certain-substances-illegal-again-us-constitution-question/582740/2 "2011-05-22T01:52:07Z")
The Interstate Commerce Clause has in recent decades been interpreted more broadly by the courts, and has been used to expand federal powers into areas not specifically enumerated by the Constitution. The federal government has prevailed in arguments that drug trafficking affects interstate commerce, and therefore Congress can regulate the drug market and ban the sale of various substances. There is no Constitutional prohibition on state governments regulating and restricting the sale or possession of drugs or other substances. Even without federal drug laws, the same drugs are illegal almost everywhere. And the vast majority of drug crimes are of course state crimes. Even today there are a few dry counties, despite the repeal of prohibition 80 years ago. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [May 22, 2011, 2:02am UTC](https://boards.straightdope.com/t/why-are-certain-substances-illegal-again-us-constitution-question/582740/3 "2011-05-22T02:02:37Z")
Friedo is right about the feds, but I’m thinking that you were also asking why the states have the power under the Constitution to ban substances. Well, the states have plenary police power. They can enact regulations for pretty much anything (unless it violates a basic right, and there is a rational basis for it). See the 10th amendment. If a state decided to pass a law outlawing wearing blue hats on Tuesday, they might run into a rational basis problem, but since the Supreme Court has never held that ingesting drugs is a protected liberty, the states are free to regulate or even completely outlaw a drug so long as they can come up with a reason for doing so which passes the laugh test. ---
**Author:** ![KGJIII](https://avatars.discourse-cdn.com/v4/letter/k/c0e974/32.png) [@KGJIII](https://boards.straightdope.com/u/KGJIII)\ **Post date:** [May 22, 2011, 2:06am UTC](https://boards.straightdope.com/t/why-are-certain-substances-illegal-again-us-constitution-question/582740/4 "2011-05-22T02:06:43Z")
> [@jtgain](#): > > Friedo is right about the feds, but I’m thinking that you were also asking why the states have the power under the Constitution to ban substances. Well, the states have plenary police power. They can enact regulations for pretty much anything (unless it violates a basic right, and there is a rational basis for it). See the 10th amendment. If a state decided to pass a law outlawing wearing blue hats on Tuesday, they might run into a rational basis problem, but since the Supreme Court has never held that ingesting drugs is a protected liberty, the states are free to regulate or even completely outlaw a drug so long as they can come up with a reason for doing so which passes the laugh test. So the federal government uses the interstate commerce clause, and the states use their police power, is this correct? Also, do you know if the SCOTUS has explained why drug consumption is not a protected liberty if that’s really what they’ve argued? ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [May 22, 2011, 2:48am UTC](https://boards.straightdope.com/t/why-are-certain-substances-illegal-again-us-constitution-question/582740/5 "2011-05-22T02:48:01Z")
> [@KGJIII](#): > > So the federal government uses the interstate commerce clause, and the states use their police power, is this correct? Correct. > [@KGJIII](#): > > Also, do you know if the SCOTUS has explained why drug consumption is not a protected liberty if that’s really what they’ve argued? I’ll leave that to the legal eagles on here. I don’t know if they have had any case that argued that recreational drug use was a protected liberty interest. It would be a pretty weak argument. I guess you could use the right of privacy aspect of Griswold and Roe, but it would be a stretch. Recreational drug use creates a danger to those around you, destroys families, etc. while those other privacy cases seem to be restricted to a person’s private decisions. Don’t get me wrong. I think that the war on drugs has been a complete failure and I wouldn’t have a problem with legalizing some/most drugs. But a fundamental right to use them? Seems a stretch. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [May 22, 2011, 3:45am UTC](https://boards.straightdope.com/t/why-are-certain-substances-illegal-again-us-constitution-question/582740/6 "2011-05-22T03:45:26Z")
Just noting one minor exception to the Commerce Clause power – the 21st Amendment provides that > [@](#): > > The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited. ---
**Author:** ![Lord\_Feldon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lord_feldon/32/341_2.png) [@Lord\_Feldon](https://boards.straightdope.com/u/Lord_Feldon)\ **Post date:** [May 22, 2011, 3:52am UTC](https://boards.straightdope.com/t/why-are-certain-substances-illegal-again-us-constitution-question/582740/7 "2011-05-22T03:52:20Z")
> [@KGJIII](#): > > So the federal government uses the interstate commerce clause, and the states use their police power, is this correct? And in the case of alcohol (or more accurately, “intoxicating liquors”), states have pretty much absolute power to ban it under the 21st Amendment. ---
**Author:** ![Mr\_Downtown](https://avatars.discourse-cdn.com/v4/letter/m/8e8cbc/32.png) [@Mr\_Downtown](https://boards.straightdope.com/u/Mr_Downtown)\ **Post date:** [May 22, 2011, 4:31am UTC](https://boards.straightdope.com/t/why-are-certain-substances-illegal-again-us-constitution-question/582740/8 "2011-05-22T04:31:35Z")
That’s potentially misleading to folks who don’t understand the plenary extent of state police power or the nature of federalism. States have always had the authority to ban alcohol, [and some did.](http://en.wikipedia.org/wiki/Prohibition_in_the_United_States#History)_States_ have the authority to prohibit possession of lima beans, manila folders, two-piece swimsuits, or almost anything else. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [May 22, 2011, 6:08am UTC](https://boards.straightdope.com/t/why-are-certain-substances-illegal-again-us-constitution-question/582740/9 "2011-05-22T06:08:40Z")
> [@Mr\_Downtown](#): > > That’s potentially misleading to folks who don’t understand the plenary extent of state police power or the nature of federalism. States have always had the authority to ban alcohol, [and some did.](http://en.wikipedia.org/wiki/Prohibition_in_the_United_States#History)_States_ have the authority to prohibit possession of lima beans, manila folders, two-piece swimsuits, or almost anything else. True. But the point to the 21st Amendment is that with regard tp alcoholic beverages, as opposed to virtually anything else that may conceivably be the subject of interstate commerce, the states retain the exclusive right to regulate, including banning, in the whole or in part of their area and for some or all of possible beverages. ---
**Author:** ![KGJIII](https://avatars.discourse-cdn.com/v4/letter/k/c0e974/32.png) [@KGJIII](https://boards.straightdope.com/u/KGJIII)\ **Post date:** [May 22, 2011, 11:45am UTC](https://boards.straightdope.com/t/why-are-certain-substances-illegal-again-us-constitution-question/582740/10 "2011-05-22T11:45:58Z")
> [@jtgain](#): > > Correct. > > I’ll leave that to the legal eagles on here. I don’t know if they have had any case that argued that recreational drug use was a protected liberty interest. It would be a pretty weak argument. I guess you could use the right of privacy aspect of Griswold and Roe, but it would be a stretch. Recreational drug use creates a danger to those around you, destroys families, etc. while those other privacy cases seem to be restricted to a person’s private decisions. > > Don’t get me wrong. I think that the war on drugs has been a complete failure and I wouldn’t have a problem with legalizing some/most drugs. But a fundamental right to use them? Seems a stretch. Does a restriction on harming oneself seem sorta like that person is then considered the state’s property to anyone? ---
**Author:** ![Mr\_Downtown](https://avatars.discourse-cdn.com/v4/letter/m/8e8cbc/32.png) [@Mr\_Downtown](https://boards.straightdope.com/u/Mr_Downtown)\ **Post date:** [May 22, 2011, 2:37pm UTC](https://boards.straightdope.com/t/why-are-certain-substances-illegal-again-us-constitution-question/582740/11 "2011-05-22T14:37:35Z")
^There was a time when people were thought of as members of society, rather than random blobs of protoplasm. ---
**Author:** ![The\_Hamster\_King](https://avatars.discourse-cdn.com/v4/letter/t/8edcca/32.png) [@The\_Hamster\_King](https://boards.straightdope.com/u/The_Hamster_King)\ **Post date:** [May 22, 2011, 2:59pm UTC](https://boards.straightdope.com/t/why-are-certain-substances-illegal-again-us-constitution-question/582740/12 "2011-05-22T14:59:27Z")
> [@KGJIII](#): > > Does a restriction on harming oneself seem sorta like that person is then considered the state’s property to anyone? No. But isn’t this entering Great Debates territory? ---
**Author:** ![brujaja](https://avatars.discourse-cdn.com/v4/letter/b/4af34b/32.png) [@brujaja](https://boards.straightdope.com/u/brujaja)\ **Post date:** [May 22, 2011, 7:12pm UTC](https://boards.straightdope.com/t/why-are-certain-substances-illegal-again-us-constitution-question/582740/13 "2011-05-22T19:12:30Z")
Oh, probably. But it’s a debate I’m just _ **itching** _ to have, myself. I am more disturbed by the absence of real, rational discourse concerning drug laws, consensus, manufacturing consent, etc., than I am disturbed by the drug laws themselves. In fact, I was thinking of starting a thread asking, if they held a huge vote on the question tomorrow, everywhere in the nation all at the same time, do you think America would decide yes or no to legalize or at least decriminalize marijuana? (Yes, I know that everyone who would be for it would not get around to voting, because they were stoned. Say they **made** every last person vote.) ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [May 22, 2011, 8:31pm UTC](https://boards.straightdope.com/t/why-are-certain-substances-illegal-again-us-constitution-question/582740/14 "2011-05-22T20:31:55Z")
> [@Polycarp](#): > > True. But the point to the 21st Amendment is that with regard tp alcoholic beverages, as opposed to virtually anything else that may conceivably be the subject of interstate commerce, the states retain the exclusive right to regulate, including banning, in the whole or in part of their area and for some or all of possible beverages. Not exactly. Under _South Dakota v. Dole_, the Feds can regulate alcohol in a state under the “legislation by pursestrings” doctrine. ---
**Author:** ![aruvqan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/aruvqan/32/2891_2.png) [@aruvqan](https://boards.straightdope.com/u/aruvqan)\ **Post date:** [May 22, 2011, 10:27pm UTC](https://boards.straightdope.com/t/why-are-certain-substances-illegal-again-us-constitution-question/582740/15 "2011-05-22T22:27:21Z")
> [@Saint\_Cad](#): > > Not exactly. Under _South Dakota v. Dole_, the Feds can regulate alcohol in a state under the “legislation by pursestrings” doctrine. Which brings into question if a state discovers that by making weed legal, and telling the fed to fuck off and refuse to help DEA or other federal functionaries arrest and prosecute, and the grower in question does not sell anything outside that states borders [no interstate commerce being violated] the funds they make on taxation makes up the difference in the funds the feds cut off, what would happen? Frex - numbers pulled randomly out of my ass. Connecticut gets 100 million in fed money total. The money Connecticut gets from the taxes and permit fees is 110 million, Connecticut tells the feds to keep their funding, and will legalize weed for 18 and over under essentially the same regulations as alcohol and tobacco. I pay my permit fee to grow, pass the health and safety check on my greenhouse, and the space used to process the weed, and the weights and measures certifications for my packaging area. I deliver by self owned truck only to my client base in state. I pay all local, state and federal income taxes, and all local and state sales taxes, and all the paperwork and payments for any employees is kept current at both the state and federal level. I also have both the federal and state and county tax stamps for the weed as appropriate. Connecticut refuses to assign staties to the DEA for a raid on my property, the judiciary refuse to let any DA prosecute at the county or state level as I am following the laws of my state, and nothing has gone out of state. Other than some very outmoded drug laws, I really have not done anything that impacts on anything federally whatsoever. I am employed, employing others, and contributing to the finances of the state. I do not see why the fed needs to get their panties in a bunch over a plant that is as harmless as tobacco with an effect that is essentially the same as alcohol. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [May 23, 2011, 12:21am UTC](https://boards.straightdope.com/t/why-are-certain-substances-illegal-again-us-constitution-question/582740/16 "2011-05-23T00:21:13Z")
> [@aruvqan](#): > > Which brings into question if a state discovers that by making weed legal, and telling the fed to fuck off and refuse to help DEA or other federal functionaries arrest and prosecute, and the grower in question does not sell anything outside that states borders [no interstate commerce being violated] the funds they make on taxation makes up the difference in the funds the feds cut off, what would happen? See [Wickard v. Filburn](http://en.wikipedia.org/wiki/Wickard_v._Filburn) ---
**Author:** ![Mr\_Downtown](https://avatars.discourse-cdn.com/v4/letter/m/8e8cbc/32.png) [@Mr\_Downtown](https://boards.straightdope.com/u/Mr_Downtown)\ **Post date:** [May 23, 2011, 12:50am UTC](https://boards.straightdope.com/t/why-are-certain-substances-illegal-again-us-constitution-question/582740/17 "2011-05-23T00:50:39Z")
Or directly on point, [Gonzales v. Raich.](http://www.law.cornell.edu/supct/html/03-1454.ZS.html) ---
**Author:** ![aruvqan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/aruvqan/32/2891_2.png) [@aruvqan](https://boards.straightdope.com/u/aruvqan)\ **Post date:** [May 23, 2011, 1:40am UTC](https://boards.straightdope.com/t/why-are-certain-substances-illegal-again-us-constitution-question/582740/18 "2011-05-23T01:40:10Z")
> [@Saint\_Cad](#): > > See [Wickard v. Filburn](http://en.wikipedia.org/wiki/Wickard_v._Filburn) Well that would cover homegrown for personal use - since I would change weed for grain [wonder if chickens like weed:confused:] > [@Mr\_Downtown](#): > > Or directly on point, [Gonzales v. Raich.](http://www.law.cornell.edu/supct/html/03-1454.ZS.html) And again, home consumption … not commercial product. I was asking about commercial intrastate commerce when the state refuses to cooperate with the feds on a purely in state issue and refuses to accept any federal monies because they can fund their schools and roads [and whatever else] with funds created by the marijuana trade. ---
**Author:** ![Mr\_Downtown](https://avatars.discourse-cdn.com/v4/letter/m/8e8cbc/32.png) [@Mr\_Downtown](https://boards.straightdope.com/u/Mr_Downtown)\ **Post date:** [May 23, 2011, 3:34am UTC](https://boards.straightdope.com/t/why-are-certain-substances-illegal-again-us-constitution-question/582740/19 "2011-05-23T03:34:21Z")
Did you read _Raich?_ Our case law firmly establishes Congress’ power to regulate purely local activities that are part of an economic “class of activities” that have a substantial effect on interstate commerce. ---
**Author:** ![samjones](https://avatars.discourse-cdn.com/v4/letter/s/9dc877/32.png) [@samjones](https://boards.straightdope.com/u/samjones)\ **Post date:** [May 23, 2011, 12:48pm UTC](https://boards.straightdope.com/t/why-are-certain-substances-illegal-again-us-constitution-question/582740/20 "2011-05-23T12:48:27Z")
> [@Polycarp](#): > > True. But the point to the 21st Amendment is that with regard tp alcoholic beverages, as opposed to virtually anything else that may conceivably be the subject of interstate commerce, the states retain the exclusive right to regulate, including banning, in the whole or in part of their area and for some or all of possible beverages. The words that are responsible for the film career of Jerry Reed. [Next page](https://boards.straightdope.com/t/why-are-certain-substances-illegal-again-us-constitution-question/582740.md?page=2)