Sunday, July 22, 2018

Can the Federal Government Ban Anything?

Even though it is true that the government currently bans all kinds of things, I am asking a serious question. Let me expand and clarify it. Is the federal government authorized by the Constitution to make illegal the possession of any substance that it deems it to be harmful, hazardous, immoral, addictive, threatening, damaging, injurious, destructive, unsafe, or dangerous to an individual or to society?

I am not talking about state governments—that is a separate issue. I am talking about the U.S. national government that was set up by the Constitution in 1789. The Constitution that was amended in 1791, 1795, 1804, 1865, 1868, 1870, 1913, 1919, 1920, 1933, 1951, 1961, 1964, 1967, 1971, & 1992. The Constitution that is the supreme law of the land. The Constitution that all conservatives claim to revere. The Constitution that all conservatives say they expect the federal government to follow. The Constitution that conservatives drag out and dust off every time there is an election. The Constitution that the Republican Party says it is the party of. The Constitution that all members of Congress swear to support and defend. The Constitution that the president swears to preserve, protect, and defend. The Constitution by which the Supreme Court is expected to judge all laws.

I have several times brought up this question of the government having the authority to ban anything in the context of the federal government’s War on Drugs. In arguing that the Constitution nowhere authorizes the federal government to concern itself with the nature or quantity of any substance that any American wants to eat, drink, smoke, inject, absorb, snort, sniff, inhale, swallow, or otherwise ingest into his body, I have sometimes added that the federal government has no authority to ban drugs because it has no authority to ban anything. I have also occasionally pointed out that when the federal government sought to prohibit the “manufacture, sale, or transportation of intoxicating liquors” after World War I, it realized that it could only do so by amending the Constitution, hence the Eighteenth Amendment. I have even written a whole article on this.

But is this really the case? Does the federal government really not have the authority to ban anything or was I just using hyperbole?

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1 comment:

  1. I would argue that not only can the Government not ban anything, but that the commerce clause would require the government to punish states for intercepting interstate transports of drugs that while illegal in the state, are legal in the originating jurisdiction and in a jurisdiction in the direction of travel. In other words, the fed would be obligated to stop Kansas from arresting drug traffickers transporting pot from Colorado and headed toward Washington D.C.
    I DO believe the government has the right to ban importation of anything, so drugs flowing from Mexico can be stopped, and they should be.

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