Quickie aside: I promised you guys some info on the Ashcroft thing, and I'll be happy to share that with you if you wish -

'Cause the deal is, there's a LOT of it. I'm going to have to sift through it a little and pull out a few links or something, and I'll do that "quickly" if anyone cares and wants the info, otherwise there's a couple other things on my stack I want to get to first (while my .wav's are importing on the other machine) -

But, I haven't forgotten about it. It's still on the radar screen. "I'm" mainly interested in it 'cause I want to know how the feds are justifying their unconstitutional intrusion into the medical domain - and the way they're doing it, is by attacking the "legitimate medical use" of things like marijuana and assisted suicide -

To which I respond, that the feds can kiss my freakin' butt, 'cause I don't care what they say, they're not getting into my personal medical life, and so far, my best read of the Constitution is that they're explicitly prevented from doing so, by the Tenth Amendment, and there is no argument they can make, in terms of general welfare or anything else, that would allow them to extend their tentacles into this area, and it's also a matter of current law (via HIPAA and all that), so.....

So, ping me if you want "my" summary of it, and I'll try to compile it for you and post a few links.

Yes I follow your logic. But...

The nessasary and proper clause and the Commerce clauses are both enumerated. They are both expressed powers of Congress.

I think this dialogue would be easier if you picked one specific law or Constitutional case where you feel the 10th Amendment was violated.

Texas V Lopez I think would be a good example of the Supreme Court saying the Federal gov violated the State govs rights. And was ruled accordingly.

Then in any of those laws or court cases, NOT MANDATES, was the Federal government within the Constituionally established bounds of nessasary and proper and commerce clauses?

In summary:
Assuming the 10th = enumerated powers only. Nessasary and Commerce are enumerated. Then thrown in General Welfare, for good measure. And I believe you will find that all said laws passed are technically enumerated. This has been the case as tested in the Supreme Court.

When the fed oversteps its bounds, as in Texas v. Lopez, the court rules in favor of the States.
(Texas v Lopez resulted in an armed assailant with ill intent to go free BTW)

Any more questions or clarifications or rebuttels?

Ixtellor

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George W. Bush "I don't think our troops ought to be used for what's called nation-building"

Blasphemy is a victimless crime.

Well, yeah....

Heck, I'm not exactly a Constituional lawyer or anything, so I'm deeply appreciating all these tips and pointers in terms of areas to research.

Yeah, so as just a "concerned citizen", I want to find out about this stuff because I want to know if there's any "redress" for a specific "grievance" I have against the government ('cause that is my Constitutional right, yes? "petition for redress" and all that?).

Very specifically: they're trying to regulate my personal medical treatment, and my best read of the Constitution is that this is absolutely and unequivocally unConstitutional, no ifs ands or buts -

But so now the real question is, how do you "justify" that, in terms of the specific clauses and provisions in the Constitution? 'Cause you're absolutely right in what you're saying, you can't take clauses "in isolation", you have to look at them in the global context of the entire document.

But this is a complex question, isn't it? I mean, to really "understand", you have to not only understand the "original intent", but then you also have to trace through the history, to try to figure out how that "intent" either may have changed over the years, or possibly even been "perverted" (ie changed "surreptitiously", or whatever, or maybe changed so subtly over a period of time, that no one really noticed the change until much later - and perhaps that's where we stand "now" in this regard, it's kinda like, "oops" - ) -

So, from the standpoint of Constitutional law, there are issues in this question like "reversing precedent" and how that occurs, there are issues like "which clauses superceded others" in the Constitution, so for instance you're claiming that "general welfare" is an enumerated power, but from my read of the Constitution that would be kind of a "loose" interpretation, I'm not sure that was exactly the intent of the "general welfare" clause.

But like I said, I'm not a Constitutional lawyer, so I gotta go back and study this sutf, and try to get some better context. You guys seem to be way ahead of me in that regard.

I did talk to a couple of NORML lawyers yesterday, to try to get a feel from them, for where they see the "avenues of opportunity" for things like the federal pot laws (controlled substances, etc) - because what the government is trying to do in the medical domain right now (with assisted suicide, medical triage, and controlled substances) - is in my opinion absolutely un-Constitutional -

And this is exactly ths ieeus, right? Are things like that covered under the "general welfare" clause? 'Cause it seems to me, if that's the case, then the government clearly and unequivocally has the burden of proof in these cases, and my claim would be, that said burden has not been adequately met.

Then secondly, the "excuse" the feds are using in all these cases, is the concept of "legitimate medical use". My best read of the Cosntitution, is that the government is specifically prohibited from regulating medical use - what they can regulate is the quality of medical compounds, to make them safe for human consumption, but they're not allowed to interfere with the treatment between a doctor and a patient. Doctors are licensed in States, they are not licensed by the federal governmetn. There is no word in the Constitution related to "medicine" or "doctors" or "deugs" or anything like that -

So if you're a "broad constructionist", you'd probably invoke general welfare using the mistaken (ie unConstitutional) logic that the government is somehow both your doctor and your babysitter.

On the other hand, if you're a "strict constructionist", then your viewpoint is probably that clauses like "general welfare" don't qualify as an "enumeration of specific powers", and that if the government had any Powers in that domain you'd expect to see those words in the Constitution.

So the NORML people are telling me that it's extremely unlikely that any individual (say, someone who got busted for pot) could sue the government on the basis of the Controlled Substances Act.

However, what would be much more likely to work, is if a State or local community, sued the federal government when their respective laws come into conflict - because this is what's happening now, I mean this is the situation I'm looking at.

The State law says one thing, and the federal law says another, and they're incompatible. So instead of just leaving "hands off" and walking away, the feds are trying to exercise jurisdiction in an area in which they have no Constitutional power (that would be "legitimate medical use" concept) - and when that doesn't work, they go after dispensaries by trying to intimmidate them with RICO laws.

Politically "on the ground", this is getting kinda interesting here in LA, because the City Council just voted 10-2 to try to keep the feds OUT of Los Angeles, and the feds basically told em to go screw off, that they had no intention of ceasing any enforcement activities - so now the State is involved, Governor Schwarzenegger has directed the Highway Patrol (those are like the State Police here) to stop enforcing the pot laws, and the feds are threatening California with removal of funds and all that -

So this, I have a felling, might finally force the Constitutional issue.

From an internal political standpoint, we have an Attorney General here in California who isn't too keen on trying to take on the feds in this domain, but I have a feeling that Arhnuld is a much smarter guy than most people give him credit for - I have a feeling he knows what's going on in this space, and he sees the broader implications in terms of "States' Rights" and what it means for California, so I have a hunch he'll come up with something - we'll see.

But in the meantime I want to try to understand the issues in this space, 'cause I am very serious, from my personal standpoint this is an absolutely inviolable boundary, I will not allow the feds to dictate my personal medical treamtent, and I don't care what they say, or what the law says, it just ain't gonna happen.

And my best understanding of the Constitution, right now, is that I am 100% aligned with the original intention of the Founding Fathers, in that regard.

So now, I'm ttrying to figure out how this all ties in with the "specifics" - like, where do I stand with this boundary - am I going to get tossed in jail for civil disobedience (or is it "worse" than that, you know, like could they use RICO against me to try to sieze my assets or something) - or, am I on solid Constitutional grounds and can I flaunt the law and get away with it?

I mean, this is not an easy question, right? It's "complex"....

Let me paint the scenario for you a different way, Ix, and then if I may, ask "how would you approach this".

Okay, so - the short story is, I have "multiple" medical problems, ans basically would have to take 3 different drugs - an anti-emetic, a pain-killer, and a non-steroidal anti-inflammatory. All these drugs would have to be "powerful", in other words, Advil wouldn't work, as either a pain-killer or an NSAI.

So I talk to the doctor, and he says "Vicodin", and I say, "nope, is there anything else"? So we talk about it, and to make a long story short, we end up eventually coming to the mutual decision that "medical marijuana" would represent a reasonable middle ground in terms of medical treatment -

[B}Because[/b], it's only one drugs, that does all three functions - so, three times less chance of side effects, only a third of the cost, etc etc.

I mean, I did all this with the legitimate medical doctors, not the "pot doctors", right? But when I asked my 'real" doc for a recommendation, he said "no", that was too risky for "him personally", so he suggested that I just go to one of the local "pot doctors", and he even gave me a reference.

And by the way, I have all this thoroughly documented, I've saved like "every scrap of paper", everything that had anything to do with this.

So that's where it stands - from a medical standpoint, this is "legitimate medical practice", the only real issues is that the treatment involves a controlled substance.

The "politics" of it is obviously quite nuts, I mean the special interests are involved an all that - but the "Constitutionality"of the basic underlying question, ought to be real simple, right?

Does or does not, the federal government have the right to regulate legiyimiate medical treatment prescribed by a State-licensed doctor?

I haven't yet explored the "pure medical" aspect of this, because there is case law that directly pertains to this question. And then there are "other" issues too, like there are "exceptions" to the Controlled Substances Act, including religious use and so on, so that's a whole domain I still need to investigate - and yeah, it's a complex question.

So, how would you approach it, from a Constitutional standpoint?

I can tell you guys (briefly, quickly) that this is one of those little "chellenges" that I won't lie down for.

I will not bend over for the feds on this one.

You see, most people would probably "live with it" - this whole thing would be like "not significant enough" to get bent out of shape about, right?

"Most peopls", might just take their Vicodins and hope for the best.

Not me. I hate Vicodin. They make me sick - if I tried to take those, I'd end up even sicker than I am now.

And the "nightmare scenario" in this regard, would be ending up like the old Indian guy in "One Flew Over the Cuckoo's Nest", right? Like, nonsqtr flaunts the law, gets arrested, goes to jail, where they not only take away his pot but force Vicodin down his throat, and etc etc -

I "think", if I'm not mistaken, that this is the kind of thing our Constitution is supposed to protect us against, yes?

I don't have access to the same information anymore (JSTOR, etc) so...

I did find this case
STATE OF MINNESOTA EX REL. WHIPPLE v. MARTINSON, 256 U.S. 41 (1921)


"There can be no question of the authority of the state in the exercise of its police power to regulate the administration, sale, prescription and use of dangerous and habit-forming drugs, such as are named in the statute. The right to exercise this power is so manifest in the interest of the public health and welfare, that it is unnecessary to enter upon a discussion of it beyond saying that it is too firmly established to be successfully called in question."

So as a States right to regulate drug use, there is no doubt that they have the authority.

All Supreme Court precedence to date would also uphold Federal drug laws for "general welfare"

A true strict constuctionist MIGHT argue that a Federal drug law unconstitutional.

But, don't hold your breath, because it was these same so called "Conservative judges" who ruled on the Bong hits 4 Jesus case and found that a schools right to prevent a pro drug message outweighed a students free speech, even though it was on a public street and after school.

Also there is some validity in Federal drug laws. They have the responsibility to make sure companies are selling us all anthrax and calling it "baby medicine". That is unquestionable for the "general welfare".

In summary:
1) General welfare
2) A true conservative might rule that States can control, but no the Fed.
3) There are no true conservatives on the Bench (Proof = bong hits 4 Jesus)
4) I am currently teaching High School. Guess which students are generally smarter, more eager to learn, and better citizens. The pot heads or the clean kids.
5) I personally wouldn't bat an eyelash if they legalized all drugs. (Heroine and Crack give me pause)


Ixtellor

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George W. Bush "I don't think our troops ought to be used for what's called nation-building"

Blasphemy is a victimless crime.

Yeah - so, I understand those arguments. But the case you quoted is more in the domain of the Harrison Act, that kind of thing -

What we're talking about here is the right of doctors ro prescribe "non-traditional" medical treatments -

Like, consider it in this context:

Let's say i have a licensed medical doctor in Miami, and said doctor happens to believe in Santeria. So, even though this guy's an MD, when someone comes to him with a particularly wierd condition that he doesn't quite know how to treat using the "usual" medical approach (ie drugs) - what he does instead, is he prescribes a Santeria ritual.

Now, would that he subject to federal regulation?

The real question here, is the meaning of "legitimate medical use". Because, "use", when it comes to prescription medicine, has three parts - it requies

a) prescription
b) dispensation
c) consumption

The States regulate part A - in other words, if a doctor prescribes a federally controlled ubstance, he could lose his state medical license - that's a state law, not a federal law. The feds only get involved here via the "DEA number", which is basically a license to prescribe "something", but "what" is being prescribed is covered by state license laws.

The feds claim jurisdiction in part B - but now my argyment would be, that even part (b) has three parts - one is, the idea that there is "something" being dispensed, two is, "what" is being dispensed, and the third is, "how" is it being dispensed (and this latter part relates to "quality" and the kinds of things the FDA might be interested in).

See? So it's not at all as simple as "general welfare". Parts of it apply under general welfare, but parts of it definitely don't.

The relationship between a doctor and a patient is individual welfare, not general welfare - where "general" welfare enters into the picture is in two areas - one is the "quality" of medication being dispensed, and the other is the "side effects" of the medication in terms of society, and it's obviously this latter part where the Harrison Act etc enter into the picture.

I mean, this is really a very deep Constitutional argument, 'cause it affects things like Hillary-care. For instance, right now, in Medicare, the model is that the gov will pay for certain things and not for others, but the result of that is that the patient's doctor is restricted to "certain" choices and "certain" medications and so on, and Constitutionally speaking - this is perfectly acceptable in private industry, but is the government allowed to do that? Hmm..... ??? It's not at all clear....

What is clear at this point, is that there are "many" institutions that have sprung up over the years in thie country, that are pretty clearly unconstitutional. It's like, there's a whole spectrum of 'em. And I think, it seems to be based on very limited reading so far, that the Court has been a bit "lazy" in this regard, in terms of interpreting the Cosntitution 'cause it's easy to wave your hands over the issue and invoke "general powers", right? I mean that's kinda like a "blanket excuse for everything" - what's it going to be next, they're going to pull a Lincoln and say that the Constitution must be suspended for the "general welfare"?

It doesn't work that way - at least, it's not supposed to, right?

Yep, that's the key.

Thanks, you guys got me here "quickly".

(see how great these forums are? ) -

This whole thing, rests upon the maning of specific terms, like "general welfare".

Consider:

If the President were to suddenly suspend Habeas Corpus, as Lincoln did, he'd have to show a pretty good cause, right? Okay, so that's "general welfare" - that's keeping the country together during a Civil War, and that affects everyone and that would seem to be exactly what the Founding Fathers had in mind when they said "promote the general welfare". So we could argue about the specifics of that one in relation to "other" sections of the Constitution, but from the perspective of the Tenth and general welfare and all that, it would seem to dovetail.

On the other hand, the whole concept that "government should make peoples' lives easier", is, I think, not what the Founding Fathers had in mind when they said "general welfare" - 'cause that would be individual welfare, not general welfare. "General" welfare is something that has to affect everyone equally, so like, if you smoke and get lung cancer, the only way it affects me is if I have to pay for it.

So, two things are going on here: one is, that the government has a law (the RICO law) whose intent is prevent very rich and powerful organized criminals from fleeing apprehension. So, that part I need to study carefully, I haven't gotten there yet. I need to find out how the RICO statutes are constitutionally justified. 'Cause "off the cuff", that does seem like a bit of a stretch of "due process", doesn't it?

Hmm.... so then, we also have this question of "legitimate medical use", and the word "use" is the crux of that particular biscuit, because that definition has to be broken down in great detail in order to make any sense. So that's a "case law" question, and it's probably good for about a week's worth of study, so I'll have to get back to you on that one....

Oh, and, the third interesting thing here, is that I'm going to check into case law related to "suicide", and see whether there is any Constitutional tie-in to any of it.

Somehow I'm still thinking this all ties back to the Tenth Amendment though, because I haven't seen anything that would contradict my initial perception: that the Tenth is intended to be an "outer boundary" for federal powers.

For clarification:

Can a doctor prescribe you Anthrax or some other lethal poison?
It is a guarenteed cure for pain afterall.

Could you also clarify, why a Doctor should be allowed to prescibe something deemed harmful to both the individual and society?
i.e. Could he prescribe that you chop up monkies with a machete to control rage issues? (The money would have to be yours and under anestesia - no pain = no cruelty)
Could he prescribe that you become a "cutter" to divert anger?

Both of those would be "alternatives"

The Supreme Court has spent thousands and thousands of hours conetemplating these and other such issues.
I don't know if its fair to call it the "easy way out"

What I do know is that neither Liberals or Conservatives will rule in your favor - on your particular issue.

Ixtellor

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George W. Bush "I don't think our troops ought to be used for what's called nation-building"

Blasphemy is a victimless crime.

Depends on the issue, right?

I mean, there are many ways to approach this thing.

Like I suggested earlier, a frontal assault on the dispensation laws won't work (as you say), but a cleverly framed "conflict" just might.

That's why they pay those Constitutional lawyers the big bucks, right? To find "conflicts" that the Court hasn't thought about before. Nine times out of ten that's what they'll argue, and the whole deal is whether they're clever and comprehensive enough to convince the Judges.

So, for instance, "just for clarification" - who decides?

A clever lawyer could probably even find some kind of Constitutional problem with an "inconsistent metric" - in other words, if a "different gauge" ia applied to some people (or substances) than to others then that would contradict both the Tenth and the "general welfare" clause. For instance, you can ask me what a "poison" is, and my first question will be "relative to what"? In other words, "what metric are you using?"

Because, for instance, digitalis is a deadly poison in high doses, right?

So you see, I don't believe for a minute that this question is as simple as you seem to be suggesting. (Sorry, no offense ) You are very right that there is tons of case law about these issues, but most of it isn't "definitive", most of it just follows precedent. The "definitive" cases are actually very few.

I don't know from "liberal" or "conservative" The meaning of those words seems to change every day. The only thing I know is Constitutional, and that's not supposed to change from one day to the next, unless certain specific steps are taken to change it.

So, think about it - "who decides"? Have you researched that one? That's pretty interesting - it breaks down "almost exactly" according to the hierarchy I suggested in the earlier post. So that would be another avenue - the "jurisdiction" of specific branches of the government, that kind of thing.

Anyway, I don't have a whole lot of time to spend on this, I can only take this "so far", and then if I see anything useful I'll have to turn it over to someone better equipped than myself, to handle it or know what to do with it - 'cause I gotta make a living for four people now, and I don't really have time to muck with the feds. It's bad enough having to get sick for an hour a day, that's an hour I don't have in this world.

Well, fortunately I have other avenues for getting what I need, so if the feds want to waste their time, then at least I don't have to waste mine.

Stupid feds. I have no use for that "Tito" crap Vote 'em all out and start over. Morons.