What was obviously limited power is now obviously unlimited power!

Earlier I came across an amazing statement by our highest court:

Obviously, direct control of medical practice in the states is beyond the power of the federal government.”

The Supreme Court said that in a unanimous 1925 opinion which held that the Harrison Narcotics Act could not be used to prosecute doctors who prescribe narcotics to addicts. (Previous rulings had led the DEA’s federal precursors to state that “An order purporting to be a prescription issued to an addict or habitual user of narcotics, not in the course of professional treatment but for the purpose of providing the user with narcotics sufficient to keep him comfortable by maintaining his customary use, is not a prescription within the meaning or intent of the Act: and the person filling such an order, as well as the person issuing it, may be charged with violation of the law.”)

The court added this:

Federal power is delegated, and its prescribed limits must not be transcended even though the end seems desirable.

The opinion — Linder v. United States (268 U.S. 5, 1925) — even has its own Wiki entry, which notes pithily:

With the passage of myriad later laws, including the Controlled Substance Act which gives no exemption whatsoever to Schedule I drugs, and the end of Lochner era, the holding of Linder has now been mostly overruled or superseded.

Yeah, I would say so. But what accounts for this usurpation of power?

My question is, if it was obvious to a unanimous Supreme Court that “direct control of medical practice in the states is beyond the power of the federal government” in 1925, and we still have the same Constitution without a single amendment giving the federal government such power, then what the hell happened?

What is obvious today is precisely the opposite of what was obvious in 1925.

How did an obvious lack of power become obvious power?

UPDATE: My thanks to Glenn Reynolds (a constitutional law professor) for the link!

As to why the constitutional limitation on federal power was more “obvious” in 1925 than in later years, perhaps it was FDR’s court-packing and early retirement plan that led to the usurpation of power commonly known as the “living, breathing Constitution.”

Comments welcome, agree or disagree.


Posted

in

by

Tags:

Comments

32 responses to “What was obviously limited power is now obviously unlimited power!”

  1. Brett Avatar
    Brett

    The efficient cause is a judiciary with no fear for its life.

  2. SteveBrooklineMA Avatar
    SteveBrooklineMA

    It is similarly remarkable that alcohol prohibition required a constitutional amendment back then. I’m not even sure it would require an act of Congress now. I think the ATF or the DEA or some combination of agencies could just pass regulations to the same effect.

  3. […] Classical Values » What was obviously limited power is now obviously unlimited power! My question is, if it was obvious to a unanimous Supreme Court that “direct control of medical practice in the states is beyond the power of the federal government” in 1925, and we still have the same Constitution without a single amendment giving the federal government such power, then what the hell happened? […]

  4. […] SUPREME COURT UPDATE: What was obviously limited power is now obviously unlimited power! […]

  5. Mark Well Avatar
    Mark Well

    The answer is blindingly, crushingly simple. We are ever so much smarter now. Also, shut up.

  6. SongDog Avatar
    SongDog

    Behold, the Constitution lives! And, it evolves.

  7. Rich K Avatar
    Rich K

    This is what happens when Congress and the Administration is allowed to govern as a Democracy, instead of the Constitutional Republic we fought a war to become.

  8. Defending Enterprise Avatar

    The “switch in time that saved the nine.”

  9. Autarchist Avatar
    Autarchist

    The underlying reason is the “take care of me” mentality in the citizenry that began in the early 20th century and was personified by FDR. As the hard-working generations die off, we get more and more of the “populist” culture that rewards laziness out of a misbegotten morality of “caring”.

    The Reardens and Taggerts are gone now; weep for our lack of future.

  10. Kevin M Avatar
    Kevin M

    Living, breathing and yet quite dead.

  11. Tom Bosworth Avatar

    None dare call it treason.

    Except, apparently, me.

    I really would like to know why it is so, though.

    If we call it treason, some people will have to engage in a conversation about the core issue: subversion of the Constitution.

    Current thinking seems to be that what our betters consider to be good policy is therefor Constitutionally authorised. That’s subversion, and if we refuse to demand that conversation, it is our fault.

  12. GuyCocoa Avatar
    GuyCocoa

    What happened was the 17th amendment. Prior to the amendment the limited powers of the federal government were reigned in by the states and by the contention for those powers by the three branches of the government. After the amendment the states had no way to control the Feds, so there was no need for the three branches to fight amongst themselves for a share of limited powers. They simply granted themselves whatever powers they wished and the Constitution became a living document.

  13. Tom Bosworth Avatar

    GuyCocoa, I agree that the 17th Amendment was a disaster, but that still doesn’t give the feds constitutional authority to do the many things they decide are good policy.

    I think we need to force the traitors to defend themselves against accusations of subversion and, hence, treason.

  14. Mike T Avatar
    Mike T

    Power corrupts. The enticing prospect of being the deciders for all questions great and small in the USA as well as imposing their beliefs upon everyone has seduced the Court just as it has seduced everyone in Washington. The entire city is the enemy now.

  15. John Steinbeck Avatar
    John Steinbeck

    We now know that Government is much wiser than they used to be and always know better than we, the little people, do.

    Now, eat your peas, pay your fine for your cigarettes and shut up.

    The people clinging to their guns and bibles will soon be gone. Report them to the central government ‘Truth Team’ like you are ordered.

    Everything is fine, pay no attention to the crumbling decaying effects of government actions.

  16. glissmeister Avatar
    glissmeister

    If such action or conspiracy for the purpose of sedition and treason are not prosecuted, what then is being selected for?

    Weirder still, this perversion of national being appears mostly conducted by non-human persons, their agents and employees.

    Woe to be a mere individual American citizen. They are indeed THE endangered species.

    Executives, agents, employees and trustees of non-human persons are the new favored state of American being.

    Non-human persons who cannot vote and should never be allowed to participate in our electoral politics now control the entire thing. The named personalities familiar to our faces are but the employees and agents of these non-human persons operating the hegemony over our national politics.

    Where are the grand juries to investigate this grand sedition?

  17. glissmeister Avatar
    glissmeister

    Consider the matter of foreign nationals like Piers Morgan, who apparently works as a paid agent employed by a non-human person to agitate for the usurpation and overthrow of certain enumerated rights set forth under our Constitution.

    At what point does such paid foreign agency represent a conspiracy to commit sedition against the Constitution and People of the United States?

    Everywhere one turns today, we see the growing structural crises of foreign interests, non-human persons and their agents infiltrating the secular domain of the voting american citizen.

  18. Mr. Feverhead Avatar
    Mr. Feverhead

    The ratchet only works one way. Liberty taken from us is never returned so over time we get less and less free.

  19. Marty Avatar
    Marty

    Just look at the history of when FDR tried to pack the Supreme Court in 1937, and the way that was resolved… the “switch in time that saved none.”

  20. teapartydoc Avatar
    teapartydoc

    The only way to sever the tie is to eliminate medical licensing. Everything in the past hundred years is a result of this early act of the progressive movement. Besides being bad for us by creating a monopoly protected and nurtured by the government, licensing violates the spirit of the Declaration, our organic law. Licensing creates a nobility of titled individuals similar to the nobility of the robe that burgeoned in France prior to the Revolution, and turns medical entities into something akin to the Farmers General, the class of monopolist-tax collectors that drew the attention of the guillotine in that day. The part of the Virginia Declaration of Rights that explained that no one would be eligible for any special emoluments or privileges from the community should have found it’s way into the constitution.

  21. theBuckWheat Avatar
    theBuckWheat

    Once it escaped the chains of the plain meaning of the words of the Constitution, and especially since it has also given itself the power to raise infinite moneys via perpetual debt and money-printing, government has become a Leviathan that doesn’t have to depend upon the taxpayer enough that it feels much restraint at all.

    Now it happily redefines words to the need of the moment so that it can “tax” us into voluntarily entering into a contract to buy health care. This is based in part upon a broad foundation of word and phrase twisting that goes back to the absurd idea that a farmer who grows his own corn on his own ground to feed his own hogs is somehow engaged in “interstate commerce”.

    We still have the peaceful means to dissolve and redefine the federal government if we would only have the courage to use it. So many are fearful that the present government is at war with the Second Amendment yet are not nearly as concerned about the dire consequences of the debt-serfdom it has already imposed upon us.

    People are worried that a Constitutional Convention might eliminate or encumber the right to keep and arms. Yet if we call a Convention we can repair so many defects, and in effect redefine the role of the federal government. Just the mere threat of a Convention will send those who support the Leviathan State into apoplexy and cause them to moderate their behavior. For this reason alone we need to start a vigorous public debate on how Federal 2.0 would look like to ensure liberty and prosperity. Federal 1.0 appears to be hell-bent on destroying both.

  22. Brian Macker Avatar
    Brian Macker

    The ridiculously expansive interpretation of the commerce clause which has allowed most of the unconstitutional growth in the power of the federal government.

  23. submandave Avatar

    If I were the scholarly type, I think I’d do some statistical analysis of SCOTUS decisions and see how the prevalence of blatantly partisan political rulings have happened over time. The thing that stood out to me is that while this was a unanimous decision in 1925, if a similar case were to have come before any Court in my adult life it would have immediately been a question of the liberal/conservative split. It is my feeling that SCOTUS in recent history is markedly more political than it once was.

  24. Mike Mahoney Avatar
    Mike Mahoney

    The people want for liberty because they do not recognize the purpose and powers of grand and petit juries.

  25. Icepilot Avatar
    Icepilot

    The last thing our Founding Fathers told us was so important, they said it twice in the 9th & 10th Amendments (I paraphrase) – Keep the Federal Monster Chained!

  26. askeptic Avatar
    askeptic

    Another chink in the armor of The Republic, was the Judiciary allowing the Legislature to delegate rule making (law making) to the Executive; which gave the Legislature more free time to meddle in areas where they had no business entering, and it gave the bureaucracy the ability to right rules that intruded upon every aspect of American life without oversight.

  27. Bozo the Clone Avatar
    Bozo the Clone

    The 10th Amendment — the final of the amendments that make up the Bill of Rights — is “nested” within the Bill of Rights, and therefore within the Constitution. That being the case, the 10th does not give “unlimited powers” to the various states. ALL states must govern within the confines of the national constitution. Why is that so hard for even judges to understand?

    There is a case coming from the “right” of two S. Carolina legislators who also misinterpret the 10th amendment: they believe that the states are not bound by the establishment clause of the first amendment, and can declare a “state religion.” So — we’re back to the Articles of Confederation? If a state can violate the first amandement with impunity, then they can also violate the 2nd amendment with . . . . oh, wait, many states already are!

  28. MingoV Avatar
    MingoV

    The history of our nation contains continual shredding of the Constitution, reduction of federalism, and consolidation of power by the executive branch. This goes back to George Washington and the Whiskey Tax. Lincoln ripped massive holes in the Constitution. His anti-constitutional acts were supported by a Supreme Court filled with amnesiacs who couldn’t remember the Constitution. The shredding continued over the next 150 years, with a few pieces of tape slapped on by the Supreme Court.

    How can this happen? People prefer strong central governments. The state governments succumbed to the lure of federal money. Examples: The federal government got the seat belt law, the 55 mph speed limit law, the age 21 for drinking law, and the 0.08 cutoff for DWI law accepted in all the states by threatening to withhold federal highway funds.

  29. Zachary Sorenson Avatar
    Zachary Sorenson

    Perhaps it is time for conservative law professors to get over their legal training and embrace the very historically sound practice of state nullification of unconstitutional federal law?

    When Jefferson first argued for nullification, his main contention was against exactly what we see happening with the courts’ unwillingness to enforce the constitution on the federal government. FDR and a sympathetic congress easily appointed sympathetic judges to usurp the limits on federal powers. Exactly what Jefferson meant about the courts being merely another arm of the federal government, whose only true counter balance was the states. As was argued in many constitution ratification conventions.

    And yet, with the power amassed to it today, the federal government can easily wield its monies, and officers, and sycophantic law professors against any attempt by any state to make a difference and stand up for those same rights which they defended and retained unto themselves when they defeated Great Britain so long ago.

    When did obviously limited power take the inevitable track towards obviously unlimited power. After Lincoln. Why is this guy revered? Because he ended slavery? Well, perhaps that is properly his legacy. Or, perhaps his true legacy is to send the message that any state which attempts to assert a constitutional or inherent political right without federal approval(irrespective of the privileges delegated or not to it by the constitution) shall be invaded and burned down by federal armies.

    The courts will not, in the long run, defend against abusive and overreaching federal power. The end will come only as the states are dissolved, and larger administrative regions set up under national power.

    Only real political power vested in the states can prevent this outcome.

    Yes, that means state officers potentially arresting federal officers. Frankly, if state officers violated legitimate federal law, wouldn’t we call for federal officers to do something about it? So why can’t state officers do something when federal officers violate the constitution?

    Ah, but the courts decide. So federalism exists in the executive and legislative, but not in the judicial arm of government?

    Yes, that is the key to it all! State courts are mere administrative units, ruling on laws that the federal courts deem are appropriate – FOR THE TIME BEING.

    Think about it.

  30. Brett Avatar
    Brett

    As I said, they have no fear.

  31. […] of 1914 (a piece of legislation so unprecedented in its federal sweep that the Supreme Court only barely upheld its constitutionality by a 5-4 vote, and even that was based on the court construing it in such a way as to save […]

  32. Simon Avatar

    Raich was cited 6 times in the ObamaCare decision.