the invisible immorality exception

Last week I emailed a link to M. Simon about the Obama administration's threat to intervene federally if the California Marijuana Initiative passes.

If California voters were still under the illusion that Proposition 19 would legalize marijuana, U.S. Attorney General Eric H. Holder Jr. sought to disabuse them of the notion last week. "We will vigorously enforce the (federal Controlled Substances Act) against those individuals and organizations that possess, manufacture or distribute marijuana for recreational use, even if such activities are permitted under state law," Holder wrote in a letter to nine former heads of the Drug Enforcement Administration who had lobbied the Obama administration to oppose California's overreaching ballot initiative.
So much for the pose that Obama struck during the election. If he's willing to use federal force to enforce federal drug laws when a state does not want them enforced, then he's hardly the pro-legalization candidate he pretended to be.

Or is something else at work? Might it be that even if Obama favored legalization or decriminalization at the federal level, allowing a state to pass a marijuana initiative inherently threatens federal power?

This was on my mind when I read a recent Reason piece by Jacob Sullum about the "Amazing Elastic Commerce Clause." In was in another marijuana case (Gonzales v. Raich) that Justice Clarence Thomas took a very different view than that of the Obama administration. He said that if the Commerce Clause allows Congress to regulate the tiniest speck of marijuana in a home, then they can regulate anything (presumably including health care):

In 2005 the Supreme Court said the federal government's power to "regulate commerce...among the several states" extends to the tiniest speck of marijuana wherever it may be found, even in the home of a patient who grows it for her own medical use in compliance with state law. "If Congress can regulate this under the Commerce Clause," Justice Clarence Thomas warned in his dissent, "then it can regulate virtually anything--and the Federal Government is no longer one of limited and enumerated powers."

The Obama administration, which was in court this week defending the new federal requirement that every American obtain government-designed health insurance, seems determined to prove Thomas right. But despite seven decades of stretching by a Supreme Court eager to accommodate every congressional whim, the Amazing Elastic Commerce Clause is still not expansive enough to cover the unprecedented command that people purchase a product from a private company in exchange for the privilege of existing.

"Never before has the Commerce Clause...been extended this far," noted U.S. District Judge Henry Hudson when he declined to dismiss the case he heard this week, in which Virginia is challenging the insurance mandate. Last week, allowing a similar lawsuit by Florida, U.S. District Judge Roger Vinson agreed that the Commerce Clause has "never been applied in such a manner before."

That's saying a lot, because the Commerce Clause has been used to justify some audacious assertions of federal power...

I think it's quite obvious that state laws at odds with federal law (whether with marijuana or health care) strike terror in the hearts of all who believe in massive federal statism, because they threaten to undermine the unlimited federal jurisdiction afforded to them under the modern interpretation of the Commerce Clause.

That the Commerce Clause has swallowed the entire concept of enumerated powers (and federalism itself), thus turning a limited federal government into a Leviathan -- is as beautiful and wondrous to liberal progressives as it is horrifying to conservatives and libertarians. "Progressives" of all stripes see their precious Commerce Clause the way Ronald Reagan once saw the Panama Canal:

"We built it, we paid for it, it's ours, and we're going to keep it."
Last year's Pelosi manifesto was basically a liberal declaration that total federal supremacy over every speck of our lives is a done deal:
Speaker of the House Nancy Pelosi issued a press release in September of 2009 that read, in part: "[T]he Constitution gives Congress broad power to regulate activities that have an effect on interstate commerce. Congress has used this authority to regulate many aspects of American life, from labor relations to education to health care to agricultural production. Since virtually every aspect of the heath care system has an effect on interstate commerce, the power of Congress to regulate health care is essentially unlimited."
Progressives have come a long way since Woodrow Wilson. Hard as it is to believe today, that sainted founder of progressivism actually wrote in his book, Constitutional Government in the United States that there were certain things the federal government lacked the constitutional power to do:
Its power is "to regulate commerce between the States," and the attempts now made during every session of Congress to carry the implications of that power beyond the utmost boundaries of reasonable and honest inference show that the only limits likely to be observed by politicians are those set by the good sense and conservative temper of the country. The proposed Federal legislation with regard to the regulation of child labor affords a striking example. If the power to regulate commerce between the States can be stretched to include the regulation of labor in mills and factories, it can be made to embrace every particular of the industrial organization and action of the country. The only limitations Congress would observe, should the Supreme Court assent to such obviously absurd extravagancies of interpretation, would be the limitations of opinion and of circumstance.
I hate to say it, but I think Wilson was right -- at least when he said that. Obviously, he changed his views not much later, for notwithstanding his qualms, as President he signed the Keating-Owen Child Labor Act of 1916.

So much for his earlier concerns. However, the Supreme Court in those days still had qualms, and the Keating-Owen Act was held unconstitutional. So were other child labor laws until 1938:

Although the Keating-Owen Act was passed by Congress and signed into law by President Woodrow Wilson, the Supreme Court ruled that it was unconstitutional in Hammer v. Dagenhart 247 U.S. 251 (1918) because it overstepped the purpose of the government's powers to regulate interstate commerce. In its opinion the Court delineated between the Congress's power to regulate production and commerce. A second child labor bill was passed in December of 1918 as part of the Revenue Act of 1919 (also called the Child Labor Tax Law). It also took an indirect route to regulate child labor, this time by using the government's power to levy taxes. It too, was soon found to be unconstitutional in Bailey v. Drexel Furniture Company 259 U.S. 20 (1922). The Court reasoned that "The power of Congress to regulate interstate commerce does not extend to curbing the power of the states to regulate local trade."

Despite the nation's apparent desire for federal laws against child labor, the Supreme Court's rulings left little room for federal legislation. A constitutional amendment was soon proposed to give Congress the power to regulate child labor. The campaign for ratification of the Child Labor Amendment was stalled in the 1920s by an effective campaign to discredit it. Opponents' charges ranged from traditional states' rights arguments against increases in the power of the Federal Government to accusations that the amendment was a communist-inspired plot to subvert the Constitution. Federal protection of children would not be obtained until passage of the Fair Labor Standards Act in 1938, which was also challenged before the Supreme Court. This time, the movement to end child labor was victorious. In February of 1941, the Supreme Court reversed its opinion in Hammer v. Dagenhart and, in U. S. v. Darby (1941), upheld the constitutionality of the Fair Labor Standards Act.

I don't mean to be reciting history of constitutional law here, and I think most readers know what happened in the Depression Era under a nearly dictatorial president who threatened to pack the Supreme Court to get his way. Authoritarianism seems to have run amok in the 1930s, and Americans succumbed to the temptation.

What fascinated me about the Hammer case, though, was its acknowledgment of a previous exception to the limitation on federal power -- one based on immoral (or "inherently evil" products):

Justice Day, for the majority, said that Congress does not have the power to regulate commerce of goods that are manufactured by children, and that the Keating-Owen Act of 1916 was therefore unconstitutional. Drawing a distinction between the manufacture of goods and the regulation of certain goods themselves "inherently evil", the Court maintained that the issue did not concern the power to keep certain immoral products out of the stream of interstate commerce, distinguishing previous cases upholding Congress's power to control lottery schemes, prostitution, and liquor. The Court reasoned that, in those cases, the goods themselves were inherently immoral and thus open to Congressional scrutiny. In this case, however, the issue at hand was the manufacture of cotton, a good whose use is not immoral. The Court further held that the manufacture of cotton did not in itself constitute interstate commerce. The Court recognized that disparate labor regulations placed the various states on unequal ground in terms of economic competitiveness, but it specifically stated that Congress could not address such inequality, for it was within the right of states to enact differing laws within the scope of their police powers...
So, while opium might have been "evil" (even though founders like Thomas Jefferson grew it), cotton could not be. But doesn't cotton have an evil carbon footprint?

Depending on whom you ask, there always seems to be an inherent "immorality exception" (one said to be grounded in good versus evil) to almost anything in the Constitution. Many would contend that the First Amendment does not apply to certain evil forms of speech or expression (like pornography, depictions of cruelty to animals, or even commercial speech). Similarly, many claim that the Second Amendment does not apply to certain evil weapons, like "assault weapons" or even switchblade knives. Advocates of child protection and animal welfare enforcement often claim that search warrants are unnecessary because a child's or an animal's life or safety might be at stake.

Morality is the invisible but ultimate trump card -- the foot in the door which allows a massive exception to constitutional restraints on federal power. It's as if the entire Constitution has an implied asterisk leading to an implied footnote:

Except in case of immorality.

Similarly, there's the Declarationist philosophy, which finds a giant, extraconstitutional moral veto power in the Declaration of Independence. To put it simply, if something is deemed immoral, then neither Congress nor the states can do it, and constitutional protections do not apply. I remember hearing one of the leading proponents of Declarationism warn that conservatives should not put much stock in getting rid of Roe v. Wade, because state legislatures would simply pass laws allowing abortion. Instead (he argued) conservatives should unite around the Declaration as a "moral basis for conservatism" and that the Declaration it would trump any and all state law anywhere in the land, "states rights" be damned. (As well as any "freedoms" allegedly found in the Constitution.)

If you think about it, having that sort of veto power based on immorality -- whether through an invisible morality clause or a philosophical interpretation of Jefferson's words -- is far more powerful than the modern liberal interpretation of the Commerce Clause.

But I think it's at least as irresponsible. For, once you grant an immorality exception based on good and evil, you have already prostituted the Constitution, and all that is left is the argument over price. To some, homosexuality is evil. To others, it's drugs. To others, it's not having adequate health care. And to still others, its that inherently evil carbon that befouls the air we breathe.

No wonder constitutional originalism is so threatening.

MORE: Whenever anything relates to protecting "The Children," it is considered perfectly acceptable to disregard the Constitution. A perfect example is proposed legislation in Detroit which would jail parents for failing to attend teacher parent conferences:

Detroit -- Wayne County Prosecutor Kym Worthy is pushing for a law that calls for jail time for parents who skip parent-teacher conferences, a plan some call inspired and others consider the nanny state run amok.

Worthy pitched her plan Tuesday to the Detroit City Council and is shopping it to the Wayne County Commission and state Legislature. Drawing a link between parental involvement and youth crime, Worthy wants a sponsor to guide the idea to law.

Her plan would require parents to attend at least one conference per year or face three days in jail.

Well, if it's for the children, then we shouldn't let the Constitution stand in the way.

posted by Eric on 10.21.10 at 10:17 AM


As much as I think the CMI is a big public policy mistake, the notion that all the federal government needs to intervene in an intrastate matter is some magic incantation of "regulating interstate commerce" is garbage. There's a reason that the Constitution gives a list of Congressional powers--and it wasn't to make everything magically possible through correct squeezing of the interstate commerce clause, or stretching of the elastic clause.

Clayton E. Cramer   ·  October 21, 2010 2:05 PM

Justice Scalia made a terrible error in his opinion upholding Raich.

Here was a perfect chance to correct an overreaching New Deal decision but the content of the issue, marijuana, caused him to sacrifice his orginalism and belief in limited government. This "results orientation" is a very common criticism from the Left against Scalia, an otherwise excellent justice.

I was extremely disappointed in him.

As a Californian, I intend to vote for Prop 19 just to "stick it to the Man."

Oh yea, I'd like to try some of this legal pot too!

Whitehall   ·  October 21, 2010 5:01 PM

The Detroit law is idiotic for many reasons, but they even have the causation direction backwards:

It's not that attending parent teacher conferences makes parents conscientious, it's that conscientious parents attend parent teacher conferences BECAUSE they are conscientious.

Sheesh. Don't they teach basic logic in law school anymore?

David O   ·  October 21, 2010 8:04 PM

I'm wondering, how long would it last? Consider Detroit's resources and ask yourself, does Detroit have the jail space needed to enforce the law. Do they have the courts, the personnel? Do they have the money? Can they build the infrastructure needed to enforce the law?

It does no good to outlaw a practice if it means imprisoning the population.

Alan Kellogg   ·  October 22, 2010 12:37 AM

If I normally went to every parent/teacher conference I would skip every one if they passed that law.

Veeshir   ·  October 22, 2010 4:45 PM

Post a comment

April 2011
Sun Mon Tue Wed Thu Fri Sat
          1 2
3 4 5 6 7 8 9
10 11 12 13 14 15 16
17 18 19 20 21 22 23
24 25 26 27 28 29 30


Search the Site


Classics To Go

Classical Values PDA Link


Recent Entries


Site Credits