Putting Federalism to Sleep (The wrong way to argue against assisted suicide)

The Weekly Standard ^ | October 31, 2005 | Nelson Lund

[airborne502]

The 'facts' of life are that Congress can allow the purchase of an AR-15, but can ban the M-16. Same gun, different features.

Suffice to say that Congress can pass a constitutional law banning automatic weapons using the commerce clause, -- and yes, that law would supercede any state law to the contrary (under the Supremacy Clause).
But, the USSC may allow the state law allowing possession of grandfathered machine guns to continue, leaving it up to the federal government to enforce the "no machine gun" federal law.
Trust me, this all makes sense if you let it.

So if Congress embarked on a regulatory scheme (to which is due all the deference in the world, of course) to regulate deer hunting by abolishing it nationwide, and they said yeah, guns are legal, but not if used for the application of shooting deer, why would that not supercede state hunting laws?

You just don't get it. It must be the butt thing..
The feds can pass laws superceding state laws as long as they have the right intent.. Machine guns are evil, whereas an AR-15, even though a bit light for deer, is OK for hunting because Congress said so in its finding.

[publiusF27]

I think this is a pretty good Madison quotation:

"It is true, that the Confederacy is to possess, and may exercise, the power of collecting internal as well as external taxes throughout the States; but it is probable that this power will not be resorted to, except for supplemental purposes of revenue; that an option will then be given to the States to supply their quotas by previous collections of their own; and that the eventual collection, under the immediate authority of the Union, will generally be made by the officers, and according to the rules, appointed by the several States

....

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States. If the new Constitution be examined with accuracy and candor, it will be found that the change which it proposes consists much less in the addition of NEW POWERS to the Union, than in the invigoration of its ORIGINAL POWERS. The regulation of commerce, it is true, is a new power; but that seems to be an addition which few oppose, and from which no apprehensions are entertained."

The implication I draw from that excerpt, and other Madison writings, is that few apprehensions regarding the new commerce power were entertained because it was generally understood to be related to trade policies among the states and with foreign nations and the tribes. It was generally understood that that was a fairly narrow, "defined" power.

It was also understood that more amorphous powers, those many things "which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State" would be State powers.

As noted above, Madison did not even expect for the feds to have tax collectors in every part of every state, let alone regulators of all types.

He thought that the powers of the federal government would "be exercised principally on external objects, as war, peace, negotiation, and foreign commerce." I just really fail to see how homegrown cannabis plants or machine guns for personal consumption fit that description.

Do those things really "affect other states" as in your quotation?

Well, the Congress, the left wing of the Court, and Scalia say that if the Congress says they affect other states, they affect other states. Thomas and I disagree. More from his dissent:

Respondents are not regulable simply because they belong to a large class (local growers and users of marijuana) that Congress might need to reach, if they also belong to a distinct and separable subclass (local growers and users of state-authorized, medical marijuana) that does not undermine the CSA’s interstate ban. Ante, at 6—7 (O’Connor, J., dissenting). The Court of Appeals found that respondents’ “limited use is distinct from the broader illicit drug market,” because “th[eir] medicinal marijuana … is not intended for, nor does it enter, the stream of commerce.” Raich v. Ashcroft, 352 F.3d 1222, 1228 (CA9 2003). If that is generally true of individuals who grow and use marijuana for medical purposes under state law, then even assuming Congress has “obvious” and “plain” reasons why regulating intrastate cultivation and possession is necessary to regulating the interstate drug trade, none of those reasons applies to medical marijuana patients like Monson and Raich.

California’s Compassionate Use Act sets respondents’ conduct apart from other intrastate producers and users of marijuana. The Act channels marijuana use to “seriously ill Californians,” Cal. Health & Safety Code Ann. §11362.5(b)(1)(A) (West Supp. 2005), and prohibits “the diversion of marijuana for nonmedical purposes,” §11362.5(b)(2).4 California strictly controls the cultivation and possession of marijuana for medical purposes. To be eligible for its program, California requires that a patient have an illness that cannabis can relieve, such as cancer, AIDS, or arthritis, §11362.5(b)(1)(A), and that he obtain a physician’s recommendation or approval, §11362.5(d). Qualified patients must provide personal and medical information to obtain medical identification cards, and there is a statewide registry of cardholders. §§11362.715—.76. Moreover, the Medical Board of California has issued guidelines for physicians’ cannabis recommendations, and it sanctions physicians who do not comply with the guidelines. See, e.g., People v. Spark, 121 Cal. App. 4th 259, 263, 16 Cal. Rptr. 3d 840, 843 (2004).

This class of intrastate users is therefore distinguishable from others. We normally presume that States enforce their own laws, Riley v. National Federation of Blind of N. C., Inc., 487 U.S. 781, 795 (1988), and there is no reason to depart from that presumption here: Nothing suggests that California’s controls are ineffective. The scant evidence that exists suggests that few people–the vast majority of whom are aged 40 or older–register to use medical marijuana. General Accounting Office, Marijuana: Early Experiences with Four States’ Laws That Allow Use for Medical Purposes 22—23 (Rep. No. 03—189, Nov. 2002), http://www.gao.gov/new.items/d01389.pdf (all Internet materials as visited on June 3, 2005, and available in Clerk of Court’s case file). In part because of the low incidence of medical marijuana use, many law enforcement officials report that the introduction of medical marijuana laws has not affected their law enforcement efforts. Id., at 32.

These controls belie the Government’s assertion that placing medical marijuana outside the CSA’s reach “would prevent effective enforcement of the interstate ban on drug trafficking.”

[publiusF27]

OK, how about this analogy: The Congress says it's OK to have a gun, but not for the application of being near a school with that gun, since that would affect interstate commerce. As you know, in the Lopez decision, the Court said that wasn't going to fly. A couple of months later, Congress passed the Gun Free (for victims) School Zones Act again, but they didn't use the complete title as I have done. They did, however, take time to insert new language. Here's what it says:

******************************************

Section 922(q) of title 18, United States Code, is amended to read as follows:

`(q)(1) The Congress finds and declares that--

`(A) crime, particularly crime involving drugs and guns, is a pervasive, nationwide problem;

`(B) crime at the local level is exacerbated by the interstate movement of drugs, guns, and criminal gangs;

`(C) firearms and ammunition move easily in interstate commerce and have been found in increasing numbers in and around schools, as documented in numerous hearings in both the Judiciary Committee of the House of Representatives and the Judiciary Committee of the Senate;

`(D) in fact, even before the sale of a firearm, the gun, its component parts, ammunition, and the raw materials from which they are made have considerably moved in interstate commerce;

`(E) while criminals freely move from State to State, ordinary citizens and foreign visitors may fear to travel to or through certain parts of the country due to concern about violent crime and gun violence, and parents may decline to send their children to school for the same reason;

`(F) the occurrence of violent crime in school zones has resulted in a decline in the quality of education in our country;

`(G) this decline in the quality of education has an adverse impact on interstate commerce and the foreign commerce of the United States;

`(H) States, localities, and school systems find it almost impossible to handle gun-related crime by themselves; even States, localities, and school systems that have made strong efforts to prevent, detect, and punish gun-related crime find their efforts unavailing due in part to the failure or inability of other States or localities to take strong measures; and

`(I) Congress has power, under the interstate commerce clause and other provisions of the Constitution, to enact measures to ensure the integrity and safety of the Nation's schools by enactment of this subsection.

`(2)(A) It shall be unlawful for any individual knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone.

******************************************

Well, those are some interesting Congressional findings of fact, now aren't they? I think they're a load of, well, something smelly, myself. I also think they stray well outside of what Mr. Madison was talking about when he said "regulate commerce among the several states."

[publiusF27]

You know the analogy above regarding Lopez is exactly what O'Connor was talking about when she said that Scalia and the left wing of the Court had reduced the Lopez decision to a mere drafting guide:

Today’s decision allows Congress to regulate intrastate activity without check, so long as there is some implication by legislative design that regulating intrastate activity is essential (and the Court appears to equate “essential” with “necessary”) to the interstate regulatory scheme. Seizing upon our language in Lopez that the statute prohibiting gun possession in school zones was “not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated,” 514 U.S., at 561, the Court appears to reason that the placement of local activity in a comprehensive scheme confirms that it is essential to that scheme. Ante, at 21—22. If the Court is right, then Lopez stands for nothing more than a drafting guide: Congress should have described the relevant crime as “transfer or possession of a firearm anywhere in the nation”–thus including commercial and noncommercial activity, and clearly encompassing some activity with assuredly substantial effect on interstate commerce. Had it done so, the majority hints, we would have sustained its authority to regulate possession of firearms in school zones. Furthermore, today’s decision suggests we would readily sustain a congressional decision to attach the regulation of intrastate activity to a pre-existing comprehensive (or even not-so-comprehensive) scheme. If so, the Court invites increased federal regulation of local activity even if, as it suggests, Congress would not enact a new interstate scheme exclusively for the sake of reaching intrastate activity, see ante, at 22, n. 33; ante, at 6 (Scalia, J., concurring in judgment).

[bvw]

Unlike the Linclon administration, however, I believe the voters of Virginia are adults who are entitled to make their own decisions about this important policy question, even if they disagree with me. Among the signal achievements of the late Chief Justice Rehnquist was his long crusade to revive the constitutional principle of federalism. That principle demands that the people of each state be allowed to govern themselves as they see fit, so long as their decisions are not forbidden by the Constitution itself or by federal statutes covering issues assigned by the Constitution to the jurisdiction of Congress.

It is embarassing to see a George Mason Professor who is pro-slavery. George Mason was anti-slavery.

[RWR8189]

Before the 13th Amendment any federal ban on slavery probably would have been shot down.

[bvw]

The War between the States (calling it one of the two main things it was, I could equally call it the War for Preservation the Union) was fought to on one side to abolish slavery in all states of the union, on the other to allow it to continue -- not the sole reason, but a major one.

Look, even the Bible allows certain kinds of slavery -- that kind of slavery practised by the Hebrews is not a crime, but a reduced state of being, a lowering of humanity -- both slave and slave-owner. The Bible so recognizes it -- that is why slaves had to be released every so often, why their were different Biblical laws for the slave and for the free man.

Yet the slavery we came to have was a horrendous abomination, lifetime slavery, ownership of offspring, forced seperation of family -- we bear the fruit of that today. Negro Americans who arrived as free men from Africa and who are descended from such free men have strong families nearly all, Negro Americans who arrived as chattel, as slaves, their descendants have too high a rate of broken families. Can that be anything but the legacy of that abomination of slavery practised in the South?

Yet even amoung slaves some loved their families and sought at all costs and hazard to preserve them as a whole, together. Dred Scott was one. In 1857 the Supreme Court, lead by a perfectly rational, highly moral man, a Catholic, said that Dred Scott was less than a man, he was due less or none of the basic human protections all men are due by dint of their creation, their inalienable rights.

Not just freedom amoung them -- like the freedom to vote for this law or that as a independently Sovereign State -- but the freedom of personhood, the freedom of life. Life!

His decision, the Chief Supreme Court Justice's, eeriely parallels that reasoning of the Judge on the US Circuit Court who wrote Terri Schiavo to death with such fine perfectly pervertedly "pure constructionist" logic. And it parallels this fellow's, who wrote the article, reasoning as well.

[publiusF27]

Negro Americans who arrived as chattel, as slaves, their descendants have too high a rate of broken families. Can that be anything but the legacy of that abomination of slavery practised in the South?

Makes me wonder how the descendants of black slave owners fared?

[bvw]

Interesting.

[publiusF27]

Slavery, by the way, is the States' Rights bugaboo of yesteryear. Every time a principled politician would question federal power, out came the slavery smear brush.

Well, there is more to the States' Rights issue, our federalist structure, and the proper understanding of our Constitution than the old issue of Slavery.

How does the slavery issue bear on the subject of this thread, assisted suicide? (Or, if you prefer, the use of otherwise legal drugs in the unapproved application of assisted suicide?)

It really doesn't, as far as I can tell. The issue, as in almost every other controversial federal power struggle, is INTERSTATE COMMERCE. Not slavery. Interstate commerce.

Thanks for listening. :-)

[bvw]

The Founders held, nearly all of them, that the men have inalienable rights, basic rights, a minimum of basic rights granted them by the Creator. "Among them Life, Liberty and the Pursuit of Happiness." Originally, during the Constitutional Convention the term Pursuit of Happiness replaced a term for Property and was considered more broad, encompassing property in both the tangible and intangible spheres, perhaps.

If a government, any government, any level of a government breaches or takes those fundamental inalienable rights it is no longer legitimate; it is then in rebellion against the Creator who granted ALL men those rights.

Thus no State may legalize murder. If they do, it is due, it is a basic duty of other governments, and of all good people to stop it, to stop the murder, to overthrow that now evil and illegimate government.

Life is such a basic right. Property another. Liberty. However Liberty is is not necessarily being a free man. What is the difference, according to basic, primal rights? The difference between the type of slavery we call term-limited indentured servitude and the abysmal types of slavery that make a man or woman nothing but mere chattel, mere furniture, subject to beatings, lifetime slavery, loss of children, sexual usage, etc. etc.

Life is THE most basic and necessary of all rights. The protection of life (and property and commerce too) need NOT be spelled out in any charter, in any constitution. The duty to propect life exists, implicit in any legitmate charter of government between men.

* * * * *

Why did many of the upper-most tier of our Founders oppose the Bill of Rights? Not just because of the presumptive dilutional effect, but because they could not imagine it would be needed, so attached was that generation to it's duty to G-d.

[publiusF27]

Thus no State may legalize murder.

I'm a believer in self-ownership, and see a significant difference between suicide and murder. I own me. I don't own you. I can decide when I should die, but not make that choice for you.

We probably agree that governments should not step outside their charters. You wish to invoke some greater implicit charter in this case, and I think it's for two reasons. One is, this is a significant moral issue. It's like when I try to explain to people that Partial Birth Abortion is NOT Interstate Commerce. The response tends to be, yeah, but abortion is simply a much more important issue than the commerce clause.

That leads to the second reason you've invoked this implicit charter: to avoid addressing what is actually going on here. Yes, perhaps the US Govt in this place SHOULD BE taking action against the State of Oregon based on the moral issue here: not permitting people to end their own lives. OK, fine, let's not argue about that. That is not what the government IS DOING. What they are doing, as I've been saying for perhaps too long here, is stretching the interstate commerce clause, whose tentacles, I believe, already reach waaaay too far into our lives.

[publiusF27]

Uhhh... place = case.

Why did my hand type that, when my mind thought "case?"

And why does this work?

[bvw]

Hey, that's as excellent a recap of anyone else's points as as I've ever seen on FR. Thank you.

And we do agree, I think, on the Commerce Clause. It is not applicable in this situation. "Commerce" is a simple thing. It was understood for what it was for at sixteen decades, over eight generations -- if one counts a "generation" as 18 years or so. Growing your own feed crop to feed your own livestock is not commerce. And it is not "interstate".

Nor is there a clause in the Consitution that makes Kidnapping a Federal crime. Interstate flight, yes. But not kidnapping.

[publiusF27]

Yeah, you're right about kidnapping. The good news about that one is, although it sprang from nowhere, it is also unlikely to grow. I mean, it's one thing to call a toad interstate commerce. That at least makes some sense, I guess. But calling a toad kidnapping? Now that's just silly. Couldn't happen. ;-)

[bvw]

The stand alone modern interpretation given "Necessary and proper" is as expansionary as the Commerce Clause. What was Jefferson's justification for the Louisiana Purchase?

[publiusF27]

Jefferson was rightly criticized for that deal at the time. He had a autocratic tendency (go to a Libertarian Party meeting if you don't believe someone who loves Liberty can have those).

If I'm remembering my history classes correctly, Jefferson wrote the first Executive Order. That's a nice way of saying he invented and usurped that power.

Of course, I think Jefferson's real justifications were twofold. First, he must have thought, "You want to sell me WHAT for HOW MUCH???" Deal of the century. Deal of ANY century.

He must also have thought, "Is it cheaper and better to buy it now, or fight about it later, because one of those is going to happen?"

On the necessary and proper clause, I'd like to see a list of things which are NOT necessary and proper, similar to my earlier list of things which are NOT interstate commerce. ;-)

The necessary and proper clause can't really stand alone. It says, "The Congress shall have the power....To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof."

The best that can be done with that is to forget Madison's admonition that the words "general welfare" are qualified by the detail of powers which follow and interpret that clause, along with the N&P clause, as saying Congress has the power to make any law they feel is necessary and proper for promoting the general welfare. Kind of like Mr. Paulsen did in his post number 17 on this thread...

[tacticalogic]

The 'facts' of life are that Congress can allow the purchase of an AR-15, but can ban the M-16. Same gun, different features.

Suffice to say that Congress can pass a constitutional law banning automatic weapons using the commerce clause, -- and yes, that law would supercede any state law to the contrary (under the Supremacy Clause). But, the USSC may allow the state law allowing possession of grandfathered machine guns to continue, leaving it up to the federal government to enforce the "no machine gun" federal law. Trust me, this all makes sense if you let it.

Such a statement makes sense if, and only if we presuppose that the Constitution is a "living document", and "original intent" has no relation to the legitimate powers of Congress.

[airborne502]

The 'facts' of life are that Congress can allow the purchase of an AR-15, but can ban the M-16. Same gun, different features.

Suffice to say that Congress can pass a constitutional law banning automatic weapons using the commerce clause, -- and yes, that law would supercede any state law to the contrary (under the Supremacy Clause). But, the USSC may allow the state law allowing possession of grandfathered machine guns to continue, leaving it up to the federal government to enforce the "no machine gun" federal law.
Trust me, this all makes sense if you let it.

Such a statement makes sense if, and only if we presuppose that the Constitution is a "living document", and "original intent" has no relation to the legitimate powers of Congress.

Quite true. Butt you just don't get the true picture of power as we communitarians see it.

The feds can pass laws superceding state laws as long as they have the right intent.. --- Machine guns are evil, whereas an AR-15, even though a bit light for deer, is OK for hunting because Congress said so in its finding. -- Thus, - we the peoples have spoken through are elected representives. - Get it now?

[bvw]

Regarding Jefferson's purchase (the greatest bargain in history) -- it was a buying a defensive perimeter. The same all the way to the west coast and Alaska and Hawaii.