In my post A Trivial Little Matter, I asked: Why did the Republicans of 1914 vote against the Harrison Narcotics Act? (the act put the Federal government in charge of opiates and cocaine).
None of the social conservatives who responded could answer the question. Now if they frequent this blog I’m sure they think of themselves as Constitutionalists. But that is a conceit – not a fact.
Only libertarian (I assume judging by the tone of her numerous comments on the blog) commenter Kathy Kinsley got it:
I have no earthly idea why the Republicans of 1914 voted against the Harrison Narcotics Act. Unless they read the US Constitution or something odd like that.
That is in fact correct. The Republicans of 1914 were of the opinion that the Constitution didn’t grant the Federal government that power and voted accordingly.
You will note that the Progressives took that argument to heart when it came to alcohol and Amended the Constitution accordingly. They never went back and fixed the Harrison Narcotics Act. But in 1968 Tim Leary, got the Supreme Court to strike down the act. It has since been replaced by the Controlled Substance Act. However, I can find no remit in the Constitution that allows the Federal Government to decide questions about the practice of medicine as a matter of law. It is possible that studies and reports could be done – but authorizing or limiting the use of any drug is not in their power. A proof of that is the fact that “off label” use of otherwise legal drugs is permissible. I do of course consider the whole Federal Regulatory System when it comes to medicine “not authorized by the Constitution”. Which makes the way they regulate prohibited drugs doubly so.
I look forward to the Republican Party stalwarts living up to their Constitutional smugness. Until then (since I don’t expect it any time soon), vote Libertarian when you can.
In the mean time a little koan for my Republican friends:
Drug Prohibition leads to ObamaCare.
Comments
11 responses to “A Trivial Little Answer”
…I can find no remit in the Constitution that allows the Federal Government to decide questions about the practice of medicine as a matter of law.
Why, it’s right there in the Commerce Clause! Can’t you read? What? It’s just an “emanation of a penumbra”? Well, I’ll be.
Now, which party is it that nominates SC Justices who think the Commerce Clause has limits? Hmmm…
Now, which party is it that nominates SC Justices who think the Commerce Clause has limits? Hmmm…
The Republicans do it from time to time but it is usually considered a mistake.
See the Raich decision and the opinion of Thomas.
http://www.law.cornell.edu/supct/html/03-1454.ZD1.html
You might also wish to read up on Scalia’s opinion.
http://www.volokh.com/2012/03/09/understanding-justice-scalias-concurring-opinion-in-raich/
The above is by libertarian Randy Barnett. I have exchanged e-mails with him. He says in the above:
In Raich, we never denied the proposition that the “essential to a broader regulatory scheme” doctrine was grounded in the Necessary and Proper Clause, but argued instead throughout the litigation that whether a law was “essential” and therefore “necessary” had to be survive greater scrutiny than mere rational basis review. When Justice Scalia adopted a rational basis approach to ascertaining “necessity,” however, we lost his vote.
In other words even a strong libertarian like Barnett has given way.
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My attitude these days is that I don’t give a damn. I will do what I have to and am able, to evade and avoid as much as I can.
I see zero point in fighting it as both sides are in on it.
Let the whole pile come crashing down. I do have some hope for the next generation. But they will not be empowered for another 20 to 30 years. I should live so long.
I will have to live through my “peak earning” years under the new regime. I have much more to fear.
Neil,
If you can earn enough, fast enough to move you past the $10 million in capital stage you should do all right.
The problem is the big hump between $100K a year and $10 Meg a year (cash flow).
[…] if the question were really forced upon me, I would have to admit that I do prefer old familiar, pre-1914 evils days to new unfamiliar […]
“Only libertarian (I assume judging by the tone of her numerous comments on the blog) commenter Kathy Kinsley…”
Got it in one. Just keep that SMALL l there.
“In other words even a strong libertarian like Barnett has given way.”
I don’t think that that quote means that. Barnett is talking about taking a case before the Supreme Court; that means limiting himself to arguments that he believes will win the Court over.
It’s more than a little absurd to expect him to make arguments before the court that will lead more than half of it to dismiss him as a nutter.
Boobah,
I have read the whole article linked.
Randy never makes the full up constitutional argument. i.e. that it is not a power the Federal Government has. By giving way on the central argument he allows the question to be finessed. i.e. assuming the government has the power is this the correct application? A weak argument.
Hehe, a good series of posts.
The greatest tragedy of the Progressive years was the end of rule of law. That’s why no one bothers to amend the Constitution anymore, nowadays you can just get 5 justices to emanate a penumbra with a lot less fuss, and the law be damned.
Let the whole pile come crashing down.
I have a theory based on several assumptions (liberalizing China, more peaceful world, continuing blue model failure) that by 2050 Quebec, Catalonia, Kurdistan, Texas, and slew of smaller areas will all become independent republics, and we will enter a new age of competitive government (see Patri Friedman on this concept).
I suspect this will culminate in a return to states somewhat more like ours was in the 17th/18th centuries in some respects, in which taxes are greatly simplified (say, just property and income, nothing else, no excise taxes, sales taxes, deductions, loopholes, etc) and only taxpayers (property owners, back then) are given the privilege of voting. It may be the only way to avoid de Tocqueville’s “voting themselves the Treasury” problem.
I know you two like to point to the eighteenth amendment as an example of the Constitutional way to go about tyranny, but I would suggest a more radical approach to judging that particular farce. If, as the Declaration maintains, our rights pre-exist government, and are guaranteed, not granted, by our government under the Constitution, which takes the trouble to guarantee unenumerated rights under the Ninth amendment, then even a Constitutional amendment that violates those rights cannot itself be legal. I would submit the people considered choosing to drink alcohol to be such an unenumerated right.
To put this in terms more in keeping with the socialist zeitgeist, many think that a repeal of the second amendment would mean the individual no longer has the right to arm and defend himself. Not so, comrades!