[leeleelee]

Another interesting thing about the war on drugs is that during prohibition, the constitution was amended for the government to legally be able stop the sale of alcohol. On the other hand, for other "hard" drugs, there is nothing in the constitution that supports the criminalization of drugs. Unless I am missing something.

Completely aside from that fact, I do agree that it should be treated as a public health issue. Not a criminal matter.

[herge]

There's nothing in the U.S. constitution about airplanes either, and yet the FAA still exists. However, the U.S. constitution does talk at length about both congress who can write laws (like the laws banning hard drugs), and the judicial branch who can overturn laws that contravene the constitution.

The 18th amendment was added to the constitution not by some legislative need, but to make a politicized statement where another amendment to the constitution would be required to overturn it (the 21st in this case).

[antognini]

> The 18th amendment was added to the constitution not by some legislative need, but to make a politicized statement where another amendment to the constitution would be required to overturn it (the 21st in this case).

That's not really the case. At the time of the 18th amendment's adoption the prevailing legal interpretation of the Commerce Clause was that Congress lacked the power to regulate intrastate trade. So Congress could have prohibited the sale of alcohol across state lines, but could not prohibit the sale of alcohol within the boundaries of a state, and certainly could not have prohibited its production. It wasn't until 1942, in a reaction to Roosevelt's court packing scheme, when the Supreme Court reversed its interpretation and ruled that Congress does have the power to regulate intrastate economic activity (i.e., the production of a good that is not necessarily sold), giving us the modern legal interpretation of the Commerce Clause.

[gozur88]

>However, the U.S. constitution does talk at length about both congress who can write laws (like the laws banning hard drugs)

No. This is all the constitution has to say on the subject of regulating commerce:

"The Congress shall have Power... To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;"

The constitution gives Congress the power to regulate interstate commerce. It does not give Congress the power to regulate anything within a state's borders, which was why alcohol could not have been banned without the 18th amendment.

The reason we have federal drug laws is the courts have been willing to simply ignore the text of the document for political expediency. But this didn't start happening (in the case of the commerce clause, anyway) until 1942 with Wickard v Filburn.

[logfromblammo]

And that doesn't even account for lexical drift. At the time, "regulate" meant to moderate, normalize, or make uniform, a sense that is more accurately captured now in the word "regularize". The clause, at the time, probably meant that Congress was to have the power to force all states follow uniform rules with respect to trade.

The intent was probably to protect other states from circumstances wherein California could determine the emissions requirements of their cars and Texas could determine the content of their textbooks.

The clause, as intended, would have allowed the Uniform Commercial Code to be federal law instead of identical legislation passed by all 50 states. But it would not have allowed for the aforementioned political expediency.

[ArkyBeagle]

The Constitutional provenance for the FAA is pretty good. It at least falls under the Commerce Clause. Flying from New York to LA is interstate, and it's commerce.

[herge]

And what about flying from New York to Albany, or flying a quadcopter in your back yard?

[ArkyBeagle]

https://en.wikipedia.org/wiki/Federal_Aviation_Act_of_1958

[ArkyBeagle]

The drug schedule is an act of executive fiat. But there are various legislative supports for it. Not all law has to take root in the Constitution, it merely has to have never been challenged or, having been challenged, stood the test.

The 18th was a different sort of action. If I recall correctly, it was reasonably well known that nothing short of an Amendment would suffice. Either that or Wayne Wheeler just wanted to see if it could be done.

[aminorex]

The 9th and 10th amendments tell me that the courts are corrupters of the law rather than faithful judges of it.

[rm_-rf_slash]

That doesn't really change much. The constitution is the law of the land, so if it says nothing about drug use while a federal law bans a set of drugs from sale and use, then that's the law, unless it contradicts the constitution, and in that case, it's up to the Supreme Court to decide.

[antognini]

Well, not quite. The Constitution is set up to delimit the powers of the federal government. As the 10th amendment states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." So if a particular law exceeds the power granted to Congress by the Constitution, it is unconstitutional. It's not that the Constitution prohibits Congress from doing certain things and everything else is by default allowed. The Constitution allows Congress to do certain things and everything else is by default not allowed.