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[thomas <thomas AT tbeckett.com>]

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Phillip Rhodes wrote:
| Assuming you've digested the parent of this message
| and I've convinced you that the Federal Government
| is truly limited to the powers enumerated in
| Article I, Section 8, clauses 1-18, consider this:
|
| Not one of those powers says anything about regulating
| what medicine or drugs a person can use.  Hence, the
| FDA is a totally unconstitutional agency and should
| not exist.  As well, every Federal drug law is
| unconstitutional, and hence is null and void.

The Commerce Clause, which certainly covers medications marketed
nationally.

Also, I note that Section 8 does not say "Congress shall have the power
/only/ to lay and collect Taxes", etc.  Section 8 is a list of things
that Congress is specifically authorized to do, followed by a list of
things that Congress is specifically prohibited from doing.  But the
Constitution does not say that Congress is limited to legislating on the
eighteen items in Section 8.

Amendments 9 and 10 address rights retained by the People and by the
several States, but retention of those rights is not a blanket
limitation on the  Congress's power to legislate.  It only means that
Congress cannot legislate in derogation of those rights.  Where does it
say that /only/ the states may regulate the manufacture and distribution
of medicines?

Lastly, the Necessary and Proper clause has been held to be a general
enlargement of Congressional power since the early days of this Republic:

"And if, in the progress of society and the arts, new means arise,
either of carrying on war, or of raising revenue, these new means
doubtless would be properly considered as within the grant.
Steam-frigates, for example, were not in the minds of those who framed
the constitution, as among the means of naval warfare; but no one doubts
the power of congress to use them, as means to an authorized end. It is
not enough to say, that it does not appear that a bank was not in the
contemplation of the framers of the constitution. It was not their
intention, in these cases, to enumerate particulars. The true view of
the subject is, that if it be a fit instrument to an authorized purpose,
it may be used, not being specially prohibited. Congress is authorized
to pass all laws 'necessary and proper' to carry into execution the
powers conferred on it. These words, 'necessary and proper,' in such an
instrument, are probably to be considered as synonymous. Necessarily,
powers must here intend such powers as are suitable and [17 U.S. 316,
325]    fitted to the object; such as are best and most useful in
relation to the end proposed. If this be not so, and if congress could
use no means but such as were absolutely indispensable to the existence
of a granted power, the government would hardly exist; at least, it
would be wholly inadequate to the purposes of its formation."

That is Justice Marshall writing for the Supreme Court in M'Cullough v.
Maryland in 1819.  The case was a dispute over whether Congress could
charter a federal bank and whether the states could tax that bank.  I
quoted a long passage, but it illuminates why Article I is broader than
you think.  The kicker is this passage:  "It was not their intention, in
these cases, to enumerate particulars. The true view of the subject is,
that if it be a fit instrument to an authorized purpose, it may be used,
not being specially prohibited."

Remember, too, that Justice Marshall knew many of the Framers of the
Constitution personally.  This was not an exercise in imagination for him.

You also need to read Article I in light of the Preamble, which lays out
the purpose for the Government in the first place:

"We the People of the United States, in Order to form a more perfect
Union, establish Justice, insure domestic Tranquillity, provide for the
common defence, promote the general Welfare, and secure the Blessings of
Liberty to ourselves and our Posterity, do ordain and establish this
Constitution for the United States of America."

Promoting the General Welfare is not a specific Power, but it is the
underlying reason for the Powers laid out in Article I.  A strict
reading of Article I would make it nearly impossible for Congress to
provide for the general welfare.  Which is perhaps what Libertarians
have in mind.  But the point is, this nation decided long ago that
promoting the general welfare was an important function of government
and that Congress has the authority to do so by diverse means.  If that
were not true, don't you think the People and the States would have
amended the Constitution to reflect a stricter limitation on the
Legislative Power a long time since?

TaB

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Thomas A. Beckett, JD & MBA              Business Law and Consulting
828-713-1668            <http://www.tbeckett.com>           919-824-5696
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