Internetworkers: http://www.ibiblio.org/internetworkers/

[Phillip Rhodes <mindcrime AT cpphacker.co.uk>]

thomas wrote:

> -----BEGIN PGP SIGNED MESSAGE-----
> Hash: SHA1

> The Commerce Clause, which certainly covers medications marketed
> nationally.

You could probably almost twist that enough to make an effective 
argument that Congress can regulate what you can ship across state
lines.  I'm not convinced it was intended to mean even that, personally.
It says, I believe, commerce between the States, as opposed to "commerce
between business and consumers in States" or other verbiage to that
effect.


> 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.

My only response that is, if the Founders intended for Congress to
be able to do ANYTHING, then why bother enumerating the things
it could and could not do, in Section's 8 and 9.  It would be
redundant to allow Congress to do ANYTHING *and* the 18 things
listed 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.  

Right.. the people (or the people and the States) retain all
powers not specifically enumerated for Congress.  Congress was
not enumerated the power to regulate medicine.  Hence, the States
or the People have that power.


> Where does it
> say that /only/ the states may regulate the manufacture and distribution
> of medicines?

I think it says it in the 9th and 10th Amendments.  That is my
interpretation at least.

> 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.

The "new means of carrying on war" seems pretty obvious. Congress *is*
specifically granted the power "to wage war."  It doesn't say how they
should do it, just that they can.  This seems like a non-issue to me.

The revenue one, I dunno... I'll have to chew on that one a bit.

> It was not their
> intention, in these cases, to enumerate particulars. 

I disagree.  They enumerate 18 particular *powers* to congress.
The details of how to carry out those powers was left open, yes.
But assuming additional powers is not, IMO, an option.  Nothing
says Congress may assume new powers anytime it sees fit.

> 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. 

Ok, granted.  At issue is the "authorized purpose."  Anything outside
the 18 powers enumerated in Section 8 is not an authorized purpose, IMO.


> 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.

Sounds like circular logic to me.  I call bollocks.


> 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;

Ok, and this is bad why?


> at least, it
> would be wholly inadequate to the purposes of its formation."

I disagree.


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

He may have known them personally, but that doesn't make unbaised, or
all-knowing or anything else.  Now, of course, we know that the Founders
themselves were not in 100% agreement even among themselves.  There were
the Nationalists (who called themselves Federalists) and the Federalists
(who called themseves Anti-Federalists) and they had pretty strong
disagreements on these issues.  But ultimately what we have to work
with is what they actually wrote and what was ratified.


 > 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.  

That all depends on your definition of General Welfare.  Unfortunately
for us, it's a little bit of a vague term.  Oh yes, I know that Black's
Law Dictionary probably has a definition for it...  But my belief
remains that it's overly vague.



> Which is perhaps what Libertarians
> have in mind.  

I don't think you understand Libertarianism if you think that.  If the
goverment is handing out checks or foodstamps or whatever, that is 
individual welfare not General Welfare.  Libertarians generally belief
that is is not the role of the government (and especially not the
Federal government) to dole out individual welfare.  Some people 
misconstrue this to think that we are not compassionate or don't care
about the poor, hungry, or homeless.  That is most certainly not true.
We just believe that charity and welfare should be handled through
private charity, as opposed to socialistic "tax and give" government
intervention.

> 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. 

The country only really embraced socialism with FDR and the "new deal"
and only then because they were all starving because of the
great depression.  And ever since people have been lied to and told
that the "new deal" ended the Great Depression, and FDR has been hailed
as an American hero.

> 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?

No, because the Constitution, as written, did a great job for a
long time.  And it's been butchered slowly over a long period of time.
It's like the old saw about boiling a frog... "drop a frog into
a pot of boiling water, and he'll jump right back out.  Drop the frog
into cold water and raise the temperature slowly enough, and he'll be 
boiled before he knows what's happening."  Our leaders in DC are pretty
close to incompetent in many ways, but they're smart enough to move
slowly enough to avoid getting a lot of people all ticked off at the 
same time, about the same thing.  And amending the Consititution takes
a nearly Herculean effort to begin with.


TTYL,


Phil
--
Don't blame me, I voted for Badnarik

Free America - Vote Libertarian
www.lp.org