Quote:
Originally Posted by Ixtellor";p="
You wrote a lot and I will have to think about some of it...
but
Quote:
|
So you see, in all these cases, there is a "conflict" - in the first, it would be "mechanistic", having to do with the equal application of the law. In the second, it would be a conflict between the government's "claims" and the opinion of the medical profession (which in this case would appear to be different, and that's why I asked the questiobn "who decides") - and then in the third case, that's the kind of conflict I'm looking for - a Constitutional conflict between either two rights, or two powers, or a right and a power (as in the example). See where I'm headed with this?
|
If you find a conflict between an FDA Dr and the congressional laws.
Does not raise a Constitutional question.
If you find a conflict between an independant dr and FDA rules.
Does not raise a Constitutional question.
In summary, to this limited reponse, to get what you want:
1) Supreme Courts rule Fed can't regulate drugs - This isn't going to happen in our life times.
2) You convince Congress to change drug laws. This seems like a much easier and reasonable avenue, and possible in our life times.
While I think about the rest of what you wrote, see if this breaks down your argument into its most basic conclusions.
Ixtellor |
Fair enough.
However .. . (there's always a "however")....
I'm a greedy SOB, and I want "more" than just the drug laws.
'Cause this goes to the very
heart of the Constitution.
I mean, think about it. Either the Tenth "does or does not" trump general welfare, and if it does, it may only do so in specific cases.
Which cases? Hmm...... 'Cause if you open up the entire spectrum of "all" the case law that might be affected by such a decision, you could rip the federal government apart from the ground up, and leave very little in place but a tattered pile of useless shreds.....
(I mean, if you go "the other way", and instead of waving your hands over the enumeration, you force the gov to enumerate "everything", then suddenly you've got a Constitution a mile long, and really the only thing that does is to move case law into the Constitution, which probably isn't all that meaningful, and probably isn't the desired result anyway) -
What I WANT, is for the Courts to enumerate Powers at a
political level - ie the same level as "raise a militia, levy taxes, wage wars", etc - that kind of thing. Those Powers are
explicitly enumerated in the Constitution - there are "words" that describe
specifically what those Powers are. I think, if I'm not mistaken, that is exactly the intent of the Tenth, is it not?
The argument is, that "promote the general welfare" isn't
specific enough to qualify as a Power, it's more like a "purpose" instead of a Power.
See what I'm getting at?
So really, if this issue is decided in the proper way, we can get "multiple" results with a single decision. Any decision that elevates the Tenth is certainly going to affect a lot of things.
And I suspect, that any such decision would have to be
very carefully worded, because any way you slice it, it would be overturning precedent.
Of all the justices, it seems (or "seemed", prior to the Scalia surprise) that justice Stevens was the one who best understood this issue. Roberts is still an unknown quantity, he seems to side with business on a lot of things, and then there's also Alito, who's a very smart man but another unknown quantity. As "conservatives", you think they'd try to interpret conflicts in favor of the little guy, but hey, you never know in today's world, there's all kinds of statists that pass as conservatives, and sometimes even the liberals seem more conservative than the conservatives...