Follow up to Raich: Drugs & Condoms
This is just a brief follow up to the Raich discussion, really an amalgamation of thoughts I’ve had this past semester as I was taking Constitutional Law. For those of you who may not know, the lonely libertarian was one of only four students out of seventy-plus to receive an “A” this past semester in Professor Marty Margoleise’s 1L Constitutional Law class.
Follow this train of thought if you will. Under Griswald v. Connecticut, states can not ban the sale of birth control to married couples, as such ban would be a violation of marital privacy in the home. Now, if such a ban is beyond the pale of the states, then it would also be beyond the pale of Congress. Therefore, under its commerce power, Congress would have no authority to ban the sale of contraception nationwide.
This is the same commerce clause authority that Congress uses to enact Federal Drug laws. Drugs apparently, can be banned under the commerce clause. This raises the question of just what else could be banned under the commerce clause. Given that drug laws are enacted based upon moral rational and health and safety rational, this would mean that just about any product could be banned for moral and/or health and safety reasons.
Of course, no products can be banned if the ban would restrict the exercise of a fundamental right. For instance, because the fundamental right to privacy has been found by the courts to reflect only sexual privacy in the bedroom and abortion, Congress would have no authority to ban goods in commerce that would restrict the exercise of these fundamental rights. Similar logic would apply to any goods that would restrict the exercise of first amendment freedoms.
This leaves us in the odd position where Congress may not ban the sale of books, condoms, and abortion related equipment, but may ban the sale of drugs, junk food, or any other product not directly related to the exercise of a fundamental right.
To the lonely libertarian, this just doesn’t make any sense. It reflects both the inadequacies of Supreme Court jurisprudence, and as many Americans have little trouble with this logic, it reflects the double standard by which citizens judge morals, health, and safety legislation.
Follow this train of thought if you will. Under Griswald v. Connecticut, states can not ban the sale of birth control to married couples, as such ban would be a violation of marital privacy in the home. Now, if such a ban is beyond the pale of the states, then it would also be beyond the pale of Congress. Therefore, under its commerce power, Congress would have no authority to ban the sale of contraception nationwide.
This is the same commerce clause authority that Congress uses to enact Federal Drug laws. Drugs apparently, can be banned under the commerce clause. This raises the question of just what else could be banned under the commerce clause. Given that drug laws are enacted based upon moral rational and health and safety rational, this would mean that just about any product could be banned for moral and/or health and safety reasons.
Of course, no products can be banned if the ban would restrict the exercise of a fundamental right. For instance, because the fundamental right to privacy has been found by the courts to reflect only sexual privacy in the bedroom and abortion, Congress would have no authority to ban goods in commerce that would restrict the exercise of these fundamental rights. Similar logic would apply to any goods that would restrict the exercise of first amendment freedoms.
This leaves us in the odd position where Congress may not ban the sale of books, condoms, and abortion related equipment, but may ban the sale of drugs, junk food, or any other product not directly related to the exercise of a fundamental right.
To the lonely libertarian, this just doesn’t make any sense. It reflects both the inadequacies of Supreme Court jurisprudence, and as many Americans have little trouble with this logic, it reflects the double standard by which citizens judge morals, health, and safety legislation.
posted by lonely libertarian at 2:25 PM
0 Comments:
Post a Comment
<< Home