Why was a constitutional ammended needed to ban booze but not drugs?

Article I, Section 9, first clause of the U.S. Constitution provides:

Article V of the U.S. Constitution provides, in relevant part:

In short, as one of the great compromises that allowed the Constitution to be acceptable to all of the then-existing U.S. states, the right to import slaves into states that permitted it was Constitutionally guaranteed, and the Constitution provided that guarantee could not be eliminated until after 1808.

The 13th Amendment, as quoted above, which was passed in 1865 prohibited slavery.

lissener is confusing the concept of a ‘right’, meaning a power you can legally exercise guaranteed to you by the law, with the concept of something that is ‘right’, meaning something that men ought to be allowed to do in a just and proper society.

By today’s standards, and, hell, even by standards in the 19th century, owning humans as property was not something that men ought by ‘right’ (meaning by moral right) to have been able to do. But, under the provisions of our federal constitution, it might have been a ‘right’ (meaning power granted by the law) which could not easily be infringed by the federal government; indeed I believe some state constitutions explicitly established owning humans as a ‘right’ (meaning power granted by the constitution and either unable to be removed by the government or not easily infringed upon by the government).

Contrary to the assertions in the prior posts, I’m not certain that the Fifth Amendment would have precluded a federal law outlawing the owning of slaves. A person can be deprived of property after due process; it happens all the time, and it takes many forms, for example, forfeiture of assets. A properly made federal law banning owning of slaves would have been ‘due process’. BUT, there is little room in Article I as it was interpreted prior to 1863 for Congress to have the power to ban the ownership of slaves; a careful review of the clauses under Article I, §8 shows that there is no plenary power by which Congress could ban ownership of slaves. To the extent that Congress might have tried to infringe the commerce of slaves, as interstate commerce, it was prohibited from so doing by Article I, §9.

Another constitutional argument asserting that ownership of slaves was a ‘right’ hinges on Article IV, §2:

Still, we are a long way away from a prohibition on the federal government making ownership of humans illegal.

In short, it appears that the ‘right’ to own humans was not a specifically enumerated right; it would be at best cobbled together from the intent of the various prohibitions on federal action to interfere in the slave trade, potentially enforceable as a right under the Ninth Amendment; I’m not aware of any cases so holding. But Congress did not have the power to prohibit slave ownership; such power was left to the states individually. The Thirteenth Amendment removed the possibility of such a ‘right’ being considered to exist, either explicitly in a state constitution or implicitly in the federal constitution.

lissner, why are you so upset? People had a right to own slaves once, that’s why they did it. Then that right was taken away (and rightly so).

Yeah, it was terrible but it was true.

and lissener, before you get your hackles raised, remember that slavery in principal still exists today. Not in Early Americna practice, but still in a valid form.

*Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. *

Yup, that’s right. It’s inhuman to lord over and have complete control over another human being, to demoralize them in order to make them more docile, to force them to do work for your own profit. Unless of course that person has committed a crime.

And the saddest fact of the matter is that the largest population of prisoners is young black males. Pretty funny (in a sick, sad way) that nothing has really changed in a hundred-odd years.

here’s to ameriKKKa,



But didn’t Chief Justice Roger Taney disagree with this in his majority opinion in the Dred Scott case, holding that Congress could not outlaw slavery even in federal territories, let alone in the states?

Passed by Congress December 18, 1917. Ratified January 16, 1919.
Repealed by amendment 21.
Section 1.
After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

Section 2.
The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

Section 3.
This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

Passed by Congress June 4, 1919. Ratified August 18, 1920.

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

Congress shall have power to enforce this article by appropriate legislation.

Get 'em straight ,friedo.
The women did NOT vote that one in.
Now there may have been a large female movement FOR the ban,
but they didnt get the right to vote until August 18, 1920 one year seven months and 2 days later.
Now I believe it may have been Utah (please correct me if I am wrong) that had let them vote the whole time.

It was Wyoming which first granted women the right to vote. According to britannica, by 1918 fifteen states had granted women equal voting rights and a number of others granted partial voting rights.

Does this mean just that convicts can be sentenced to hard labor? Or could the penalty for a crime actually be being sold into chattel slavery for life to a private party? Or would some other civil right preclude that?

Does this mean just that convicts can be sentenced to hard labor? Or could the penalty for a crime actually be being sold into chattel slavery for life to a private party? Or would some other civil right preclude that?**

Not only can they be sentence to hard labor, oftentimes that’s a preferred method.

As to chattel slavery for life, is that any different then a life-sentence convict making products (stereotypically license plates, although it’s oh so much more) for for-profit prisons?

It’s a booming industry, m’boy.


my aplogies,
I may have been mistaken.
thank you, nebuli

I should have been more clear. Women had recently gained voting rights in many states before the prohibition amendment was passed, but the women’s suffrage amendment (which made it mandatory in every state) was, in fact, passed later.

Well, yes. The majority opinion stated:

“Thus the rights of property are united with the rights of person, and placed on the same ground by the fifth amendment to the Constitution, which provides that no person shall be deprived of life, liberty, and property, without due process of law. And an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law.”

The complete decison can be found here: http://www.tourolaw.edu/patch/Scott/

That was actually a very tricky question that needed to be answered in the early part of the 20th century. No drug that I know of is 100% illegal. What we have is a system where certain “controlled” substances are illegal in the wrong hands. Cocaine and heroine can be found and are used in hospitals and pharmacies across the nation.


Because the Fed. has become much more power hungry and doesn’t want to tangle with such complicated matters such as the messy amendment process.

One possibility I see is that for a Constitutional amendment, the ratification process was a snap, being based on a state-by-state tally. Any two sparsely populated, rural, Dry states could overrule one urbanized Wet state like New Jersey, or looking at it another way, one voter
in a Dry state, through his representatives, could overrule
hundreds if not thousands of New Yorkers.

Though I think before the amendment was submitted to the states for ratification, at some point it had to pass muster in the House of Representatives, which is of course proportionate.

I agree that it’s the only Amendment that explicitly bans a freedom, although the Tenth Amendment, to my way of thinking, could be construed to allow state and local governments to institute their own restrictions.

Ah, yes, I should have assumed someone would dredge up Scott v. Sandford, 60 U.S. 393 (1856).

Chief Justice Taney did not say that Congress could not make a law freeing slaves.

Indeed, the Court was not ruling on the issue. The Court was ruling whether a) Dred Scott, a slave, was a citizen of the United States entitled to sue in federal court; b) Dred Scott had become a free person by travelling into the federally organized territory of Upper Louisiana; and c) Dred Scott had become a free person by travelling to the territory of the State of Illinois.

As to a), the Court ruled that slaves were not citizens under the Constitution

As to c), the Court ruled that he did not, because of the prior holding of the Court in Strader et al. v. Graham, 10th Howard, 82 (sorry, I can’t find the modern citation).

As to b), the Court ruled that he did not. In so ruling, the Court determined that the unorganized territory was governed by the limitations on federal power placed in the Constitution, and that the Constitution conferred no power on Congress to eliminate the property rights of a person who transported that property from a state in which the property was legally owned to a federal territory. This ruling was not grounded solely in the provisions of the Fifth Amendment.

Indeed, the quote from the opinion does not support the proposition offered by nebuli. It simply states that the property bond properly formed elsewhere cannot be severed merely through transportation from a state into federal territory without violating due process.

Which leaves us exactly where we started; Congress might have been prevented under Article I from freeing slaves because it wasn’t the exercise of a specifically granted power, Congress was prohibited from preventing the interstate commerce of slavery for 20 years, impliedly permitting the ownership of slaves for those 20 years, Congress could not deprive the owner of his property without due process, and due process did not include taking away that ownership status simply because the property entered the federal territory or another state.

And a Constitutional Amendment would be much harder to repeal. But the Prohibitionist elements underestimated how
sick the American people would become of them, so of course
it was repealed.

Minor nitpick. The Court didn’t rule in the decision that slaves weren’t citizens under the Constitution. The question at issue was whether Scott was a slave or not, so, until that status was determined, whether slaves were citizens or could bring suit was irrelevant. What the majority decision, written by Taney decided was that the decendants of black slaves were not citizens, because the process by which the original black slaves came to this country differed from that of either most immigrants or Indians. Both immigrants and Indians were citizens of a paticurlar nation, and therefore could transfer allegances, while the slaves imported, came against their will and weren’t citizens of any government recognized by the United States. Therefore, they weren’t citizens of anywhere, and, consequently, couldn’t pass citizenship down to their decendants, even if those decendants were free.

I wasn’t thinking of prison industry or chain gangs; those are administrated by the government. I was asking about in-shackles, on-the-auction-block, kept-chained-in-the-garage slavery. The USSR had millions of convict laborers in the Gulags, but the Soviet Union did not have private chattel slavery.

I was asking if, say, the Texas Legislature could pass a law making slavery the penalty for dealing drugs, and have public auctions where you could pick up some manual laborers. I would be very surprised if this was held to be allowable. Note that even in the worst days of the segregated South, with sharecropping, vagrancy laws and convict labor, they never actually reintroduced private slavery.

lissener - you probably own a cae right now, right? What if, in 150 years, someone is saying “oh. my. god. The freedom to own a car? Those things almost destroyed the whole earth with their pollution! I hope this is some kind of sick joke!” It’s all about perspective.