I’ve been having a fascinating discussion over the views of a prominent religious conservative who claims to be a constitutional conservative, and at first glance, he would seem to have a high regard for the strict, originalist interpretation of the Constitution. He believes Obamacare (and many federal laws and agencies) to be unconstitutional, yet OTOH, believes in the War on Drugs and specifically, federal supremacy over states’ rights where it comes to medical marijuana. He believes the EPA is unconstitutional and should be abolished (I agree), yet has no problem with the DEA.
The purpose of this post is not to attack a specific man, because I think he is not the issue so much as the widespread conservative belief system he represents. It would be too easy for me to simply dismiss such pick-and-choose thinking as “wildly inconsistent,” because even though I think it is inconsistent from a constitutional point of view, there are a lot of people who think this way, and they believe that they are the only “principled” “constitutional conservatives.”
The problem may be that they place their principles ahead of the Constitution. I suspect they would argue that it boils down to “right and wrong,” and that if a thing is wrong, then the federal government has the right to prohibit it and Constitution does not apply. If only they didn’t pretend to be strict supporters of the Constitution, I wouldn’t be so offended. But for the life of me, I cannot understand by what standard the EPA is unconstitutional, but not the DEA.
If anyone can explain, I’m all ears. Sorry, but saying that the drug issue is a matter of morality while stopping pollution (or guaranteeing health care) is not — as an argument that utterly fails. If the “right and wrong” standard trumps constitutional considerations, then anything goes. Including Homeland Security seizing chocolate eggs from travelers to protect our children from tiny toys inside. Or protecting trees in foreign countries by making wood a federal felony and raiding American guitar companies.
Lots of conservatives hated to see that, but think it’s just fine for the DEA conduct drug raids.
Anyway, what worries me is that the idea that morality supersedes the Constitution is by no means limited to the left. Nor is it especially modern. Take the Migratory Bird Act, which makes it a federal crime to do anything to any migratory (even non-migratory) bird — including picking a feather off the ground. No doubt the people who passed this law believed it was a matter of right and wrong. And as a matter of fact, I can’t stand the idea of people hunting down and killing off entire species, as was done with the Carolina Parakeet and the Passenger Pigeon.
No doubt a lot of people back in the teens felt the same way that I do:
Before this law was passed, hunting of non-game birds was basically unregulated. Native birds like Bobolinks and Cedar Waxings were apparently served in restaurants, and stuffed birds adorned hats. Egg collecting was a popular hobby. Ornithologists targeted rare birds like the Ivory-billed Woodpecker to add to their collections. Then people, including sportsmen, became concerned about wholesale slaughter of certain species. This prompted passage of the Migratory Bird Treaty Act in 1918.
Who could blame them for wanting such a law? Who could blame the Supreme Court for declaring it constitutional (which was accomplished rhetorically, by Oliver Wendell Holmes invocation of the “living Constitution” phraseology.)
And the fact is that it does involve right and wrong — at least if you feel like I do that it is wrong to hunt birds into extinction. Yet during the exact same time that the Migratory Bird Act was passed, a lot of people felt very strongly that alcohol was a matter of right and wrong. And rather than simply have an act passed, they changed the Constitution with the Eighteenth Amendment. (Slavery, of course, was abolished not by a law, and not even by the Civil War, but by the Thirteenth Amendment.)
Now, I think that if we were able to somehow awaken the framers of the Constitution, drag them back from the dead and ask whether or not the government they had founded had the power to prohibit citizens from disturbing birds — even on their own land — they would be flabbergasted that anyone would even entertain such a thought.
Along with many people who care about the Constitution, I like to ask “what happened?” It’s obvious what happened. It is still happening.
What is supposed to be the law of the land plays second fiddle to how strongly people feel about what is right and wrong at any given period in history.
Comments
11 responses to “Why constitutional “principles” are for the birds”
“He believes the EPA is unconstitutional and should be abolished (I agree), yet has no problem with the DEA.”
Perhaps you should have him clarify whether he believes that DEA is constitutional vs. what they do is constitutional. It is possible for DEA’s actions to be constitutional if they are limited to regulation of interstate commerce in illegal drugs. That is obviously a lot less than they currently do. (California pothead grows and even sells within his own state: no interstate commerce there.)
EPA, because what they do is not tied even in an indirect way to the interstate commerce regulatory authority, is vastly more problematic.
Simple answer, generally speaking, is that most people are populists despite any protestations from them otherwise. They may talk a good game about principles, but in truth they don’t have any real bedrock principles.
Shorter answer, people aren’t concerned about the rights of people they don’t like.
Some things are just too difficult to take completely out of the “commons” (air, water, and migratory game animals) so they may actually need some Federal coordination or dispute oversight of the States’ regulations of such resources. The EPA is a pure regulator not an adjudicator. If the States ever reclaim their right to legislate for themselves, I will support the decriminalization of marijuana in my state. I ain’t holding my breath.
Clayton I see your point but if a citizen’s personal possession and cultivation of a substance comes within the power to regulate commerce, then why doesn’t healthcare and everything else? Note that the Supreme Court grappled with this, and in a 5-4 decision, jumped through hypothetical hoops to barely hold the Harrison Narcotics Act constitutional:
http://classicalvalues.com/2011/11/10th-amendment-sunday-nostalgia/
Also (Will too) consider Prohibition of alcohol. If that required a constitutional amendment, why shouldn’t drugs and pollution and/or species protection? If 2/3 of the states can’t agree to amend it, why should that give Congress the power to disregard it?
[…] Why constitutional "principles" are for the birds […]
Clayton – you also have to ask yourself what makes some drugs legal while nearly identical drugs are illegal?
The answer is here and it is obvious and not just restricted to drugs.
The War On Unpatented Drugs.
Crony capitalism.
It explains why drugs derived either through chemistry or extraction from marijuana are legal but the plant itself which grows easily and cheaply is not.
Also look up W. R. Hearst and hemp.
The “danger” of addiction or some other imaginary harm has nothing to do with it. There is nothing wrong with addiction if satisfying that addiction is cheap enough. Food addictions and slavery in exchange for food are relatively a thing of the past because food is so cheap. The same principle applies to drugs. Addiction is a problem where supplies are restricted. Take air. No one notices their air addiction until supplies are restricted.
People are Constitutionally teleological across the political spectrum– that is, they’re result-oriented in assessing the Constitutionality of an action. I suppose that’s OK, as long as they don’t pretend they’re rational. But, of course, they do, especially on the Left.
Watch this video to see who is behind today’s economic mess.
http://www.youtube.com/watch?v=-rFWDHQcIG8
Mike Ruppert – The CIA and Drug Running
Watch the question that starts about 1:17 into the video. In answer Mike explains the whole premise of the Drug War and who is behind it. The Bankers.
Now read the following three part Narco News series by Catherine Austin Fitts linked here:
Links here: http://classicalvalues.com/2011/11/why-we-must-not-end-prohibition/
She corroborates Mike Ruppert.
Now Mike didn’t have the information we have today. Today we know that a very large percentage of drug use is self medication. And given our still primitive stage of knowledge maybe all of it. Which is why drug demand is so inelastic.
handworn,
But, of course, they do, especially on the Left.
The right is no better. Just a different focus.
We have two parties in America. Democrats and Christian Democrats.
The Proggs on the Left have met the Proggs on the Right.
Free thinkers like us are well and truly fucked.
I’m sure the Migratory Bird Act was a fowl violation of the Tenth Amendment.