Defending States' Rights

Grits for Breakfast takes issue with New York Times columnist Bob Herbert over "states' rights." Big Tent Democrat weighed in here with an opposing view.

I'm with Grits for Breakfast. When I think "states' rights" I think of the alternative, which has resulted in the mass federalization of state crimes. As Grits says:

I'm horrified by the abuse of the Interstate Commerce Clause to justify federal regulation in areas where it has no business, transforming what was intended to be a limited federal government into a nearly all-powerful one.

I consider the federal War on Drugs and the expansion of federal prisons, law enforcement and immigration detention a direct spite to the separation of federal and state powers articulated in the Constitution.


It infuriates me when the feds threaten to withhold highway funds or use other forms of coercion to make states do things like implement a national ID through the REAL ID Act, along with many other examples.....all of today's immigration feuds, talk of a "fence," etc., to my way of thinking, directly result from stripping away states' power.

Some see states' rights as code for racism. I see it as a federal usurption of power. Additional examples: The Violence Against Women Act. Domestic violence charges belong in state court, not federal court. The anti-gang legislation that is about to pass. The Victims' Rights Amendment. Federal criminal hate crime laws enhancing criminal penalties for offenses for which substantial prison time already exists. And, of course, all the bills named after individual victims, from the Laci Peterson Act to the Adam Walsh Act to Megans' Law and the rest of them.

State's rights is not a dirty word. Mass federalization of state crime is a problem we need to correct.

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    Apples and oranges (5.00 / 5) (#1)
    by Big Tent Democrat on Wed Nov 14, 2007 at 03:50:33 PM EST
    The question is NOT what you or Grits for Breakfast thinks "states rights" meant, it is what Reagan and Republicans mean.

    If you REALLY believe that states rights means "federalization of drug crimes" to Republicans then, with all due respect, you have not been paying attention.

    Yes (5.00 / 2) (#12)
    by squeaky on Wed Nov 14, 2007 at 05:09:41 PM EST
    Code words are normal words when used by normal people. That is why they are so effective as code. IOW they mean totally different things when racists use them with the implied wink.

    Here Here (5.00 / 1) (#19)
    by pmacfar on Wed Nov 14, 2007 at 10:59:09 PM EST
    Jeralyn and Grits for Breakfast are merely proving the effectiveness of the republican strategy. To them, states rights means states rights. That's not what it meant to the people of Mississippi at that time. In fact, I remember at the time how scandalous Reagan's appearance there was, and it was reported as such in the main stream media of the time.  It was a big deal back then.

    This is what the British call Dog Whistle Politics - messages that are only meant to be heard only by the designated recipients. The fact that Grits for Breakfast and Jerlyn didn't get the message merely shows that they weren't the targets for the message.

    It's kind of like Richard Nixon running on the phrase  "Law and Order." I mean, who can be against law and order? And wasn't the Civil War fought over "states' rights?"


    For once (5.00 / 2) (#4)
    by Deconstructionist on Wed Nov 14, 2007 at 04:12:31 PM EST
     I actually agree with both of you. "States' rights" is one of those terms of art that has come to have a connotation different than merely limiting the power of the federal government vis a vis the states and the people. It's a shame because federqalism issues are veryimportant in criminal law and just about every other aspect of life, but using the words "state's rights is generally interpreted by everyone as meaning let states viuolate the civil rights of minorities.

    The 14th Amendment (none / 0) (#31)
    by Rojas on Thu Nov 15, 2007 at 11:39:55 AM EST
    gave the feds dominion over civil rights issues. That was the question ultimatly decided by the civil war.
    I don't believe there has been a functioning civil rights division at DOJ for close to three decads now. Did clinton have one?

    I would have to concur with BTD (5.00 / 4) (#7)
    by Molly Bloom on Wed Nov 14, 2007 at 04:20:36 PM EST
    As a lawyer, a Southerner, and as someone raised in Mississippi, I think you are conflating 2 different things.   Your points regarding the federalization of crime are well taken. But that is separate from what Krugman and Herbert are talking about.

    Herbert and Krugman are closer to the mark- in 1980 to a majority it was a coded appeal to bigotry. How many constitutional scholars/criminal defense attorneys  do you think attended the 1980 Neshoba County fair?  

    Furthermore there is the issue of the head of the GOP in Mississippi giving Reagan a memo on attracting "Wallace Voters". What in the heck do you suppose that was about?

    Finally in Mississippi, in my experience between about 1975-1980 telling bigoted jokes even among whites only was frowned upon. After 1980, people assumed, because I was white and everyone there was white, that it was Ok and that no-one would take offense.

    Are your batteries fresh? (1.00 / 0) (#11)
    by jimakaPPJ on Wed Nov 14, 2007 at 04:57:04 PM EST
    Are you saying that electing Reagan made racism again okay?

    If so that is about the most off the wall comment I have ever heard.


    Jim you 8 hour shift is over you can go home now. (5.00 / 0) (#14)
    by Molly Bloom on Wed Nov 14, 2007 at 05:19:50 PM EST
    Question too hard?? (1.00 / 0) (#15)
    by jimakaPPJ on Wed Nov 14, 2007 at 07:17:04 PM EST
    Just making sure your employers follow the law (5.00 / 1) (#21)
    by Molly Bloom on Wed Nov 14, 2007 at 11:16:01 PM EST
    Got caught didn't ya (1.00 / 0) (#26)
    by jimakaPPJ on Thu Nov 15, 2007 at 08:58:29 AM EST
    making a nasty little smear..

    Amazing what that light finds, eh??


    Heh (1.00 / 0) (#29)
    by jimakaPPJ on Thu Nov 15, 2007 at 10:39:20 AM EST
    and he doesn't use it except in a rerun clip from the incident in 2001. Ergo, he only made that mistake once (publicly).

    Do Senators get a one-time free pass???

    Guess you thought Imus was okay.....


    So? (1.00 / 0) (#39)
    by jimakaPPJ on Thu Nov 15, 2007 at 10:45:37 PM EST
    I don't see your point.

    I confess to being wrong twice in four years.

    Now. Does that make you feel better??



    Ankle biting, eh?? (1.00 / 0) (#40)
    by jimakaPPJ on Thu Nov 15, 2007 at 10:47:50 PM EST
    BTW - And what does that have to do with Molly's claim that Reagan's election "made racism again okay?"

    Your view is that Reagan's choice ... (5.00 / 1) (#17)
    by Meteor Blades on Wed Nov 14, 2007 at 09:36:25 PM EST
    ...of a venue for announcing and his actions in office were an extension of the 1950s-'60s attack against racism?

    I believe the commerce clause is a problem BUT (5.00 / 1) (#13)
    by lilybart on Wed Nov 14, 2007 at 05:13:04 PM EST
    I think that in human rights issues, like domestic violence against women, EVERY state needs to recognize this crime and criminallize it. Some backward places would not do much about this on their own.

    Most women are killed by their significant other, current or former. Some HUGE problems like this should be tackled by the whole country.

    war on drugs....not so much!

    Yeah, you aren't hearing the dog whistle (5.00 / 2) (#16)
    by misplacedpatriot on Wed Nov 14, 2007 at 07:28:51 PM EST
    States Rights southerners have been highly active in the federalization of crime that you object to.

    States Rights is code in the south for the right to segregate, pray in school, and generally oppress minorities.

    Then you oppose (1.00 / 0) (#27)
    by jimakaPPJ on Thu Nov 15, 2007 at 09:10:49 AM EST
    the San Diego school that provided segregated facilities for Moslem girls as well as defined times and facilities for prayers?

    BTW - I agree that racism still exists to some degree in the COUNTRY. I object to it being specified as "south only."


    What we have here (1.00 / 0) (#10)
    by jimakaPPJ on Wed Nov 14, 2007 at 04:52:54 PM EST
    is a failure to communicate that the road to hell is paved with good intentions.

    The question is NOT what you or Grits for Breakfast thinks "states rights" meant, it is what Reagan and Republicans mean.

    Once the SR arguments in support of segregation were demolished and demonized, no one bothered to re-establish that SR was a valid concept. Another example of no one wanting to argue against a PC concept. See BTD's comment for a typical reaction and comment used as a political attack.

    In other words, we were successful in getting what we wanted, but now we find that we are not happy with ALL that we got.

    Can we return power to the states? There is absolutely no way in the current political climate, and if the Demos win in 2008 that becomes absolutely positively forget about it won't happen.

    The demonization of segregation: (none / 0) (#33)
    by jondee on Thu Nov 15, 2007 at 04:13:23 PM EST
    another blow from which our once great republic has had difficulty recovering.

    Thank God guys like Jim are keeping watch over our culture and heritage to insure it dosnt happen again.


    Jondee can't help himself (1.00 / 0) (#41)
    by jimakaPPJ on Thu Nov 15, 2007 at 10:55:13 PM EST
    and he can't read. What I wrote was:

    Once the SR arguments in support of segregation were demolished and demonized

    What that means, Jondee is that once the SR arguments were shown for what they were..

    no one bothered to re-establish that SR was a valid concept.

    Now I understand that you have problems with anything requiring you to understand that sometimes concepts, such as SR, have bad parts and good parts and that it is helpful to, after you have eliminated the bad, to retain the good.

    No charge for the education.

    Now run along and look for another chance to play your race card.


    I'd suggest that despite your haste (none / 0) (#35)
    by Deconstructionist on Thu Nov 15, 2007 at 04:27:09 PM EST
     to be "clever" in criticizing Jim, you might try actually reading and understanding what he writes. The person who more often looks more foolish is you.

      Jim takes many positions which are easy to validly critique. But, just because YOU are incapable of doing that, you should not attack positions he clearly is not taking. If you can't intelligently respond to what he actually writes you might try just being quiet rather than being a foolish twit.


    I'd suggest that despite your (none / 0) (#36)
    by jondee on Thu Nov 15, 2007 at 04:47:24 PM EST
    instincual zeal to leap to Jim's defense (which you've exhibited several times in the past), that you revisit the undertones of the word "demonize" and ponder how someone might possibly objest to the suggestion that segregation has been demonized.

    You're a clever boy, why not take a crack at it?


    Nice imitation (5.00 / 0) (#37)
    by jondee on Thu Nov 15, 2007 at 05:02:10 PM EST
    of a Marvin the Martian hissy fit, though.

    Long day?


    I "defend " jim (1.00 / 0) (#43)
    by Deconstructionist on Fri Nov 16, 2007 at 06:55:44 AM EST
     only from unfair personal attackss which entirely misrepresent what he has said. I critique or even attack his positions on issues far more often than I "defend" him. You are unable to intelligently attack (or apparently even understand) what he said, so you attack him with a baseless smear suggesting he believes segregation should not have been demonized. Obviously, the plain meaning of what he wrote is that because "states' rights" was a front for segregationist arguments which were rightfully demonized, the broader concept of states' rights did not receive as much attention as he thinks it should. that is not a particularly controversial statement and similar to what Jeralyn wrote and you did not accuse  her of being a racist when she suggested "states' rights" merit promotion.

      She obviously did not intend to use "states' rights" in the common manner as a coded reference to refer to allowing racist policies and may have been unaware of the connotation until several people pointed it out in this thread. Jim was acknowledging its use as "code" and  clearly also acknowledging that it was "code" for something wrong; he then just offered his opinion it was a shame  racists had co-opted  the term and arguments in favor of literal states' rights suspect because of the racist  undertones which still exist.

      If you can't engage  Jim in ant way other than calling him a racist (or one of your other unfair insults) because you don't like him you demean only yourself.

      I will tell you categorically that if i had a choice between being locked in a room with you or Jim, i'd pick jim every time despite the fact i disagree with him far more often. I prefer rational and reasonable people who differ with me over belligerent, unthinking jerks who happen to agree with me.


    Tell me something I didnt know (5.00 / 0) (#46)
    by jondee on Fri Nov 16, 2007 at 12:11:14 PM EST

    I'll also note in passing that the obvious spiritual, emotional frustration inherent in spending your time wringing dollars from other peoples tragedies has seemingly rendered you incapable of refraining from name calling when one of your fellow Hobbesians is identified for what he is and embraces.


    Locked In A Room (5.00 / 0) (#49)
    by squeaky on Sat Nov 17, 2007 at 12:34:34 PM EST
    Being locked in a room with a heartless and humorless lawyer is by far a worse fate.

    Here's a clue: (none / 0) (#47)
    by jondee on Fri Nov 16, 2007 at 12:23:23 PM EST
    "demonized" is almost always used in instances in which the user of the term believes the phenomena in question has been excessivly sanctioned.

    Or weren't you aware of that?


    Btw (5.00 / 0) (#48)
    by jondee on Fri Nov 16, 2007 at 12:29:27 PM EST
    Jeralyn has never linked to people who use the thoughtrs of Imperial Wizardfs to bolster their arguments.

    Maybe Im an irrational, belligerent jerk, but a certain perception of a persons ethos begins to form -- for me -- when that kind of performance is repeated often enough.


    Ugh! I would have thought that a (none / 0) (#45)
    by Militarytracy on Fri Nov 16, 2007 at 09:30:41 AM EST
    United States soldier such as yourself would know that the Civil War ended "states rights".

    G'day to militarytracy (none / 0) (#50)
    by flyer01 on Wed Nov 21, 2007 at 06:00:09 AM EST
    Hi, apologies for whacking this in here - I saw it was your last post. My name is Paul and am from Australia. I was intrigued by an earlier post of yours and would like to get some more information, not necessarily posted over the web. Is there some way I can get in touch with you? My email is pfbowes 'at' live dot com.

    Thanks very much in advance,


    Sorry, tried to email twice (none / 0) (#51)
    by Militarytracy on Sun Nov 25, 2007 at 10:38:10 AM EST
    keeps getting kicked back.  emailing pfbowes@live.com

    Sorry MilitaryTracy, my mistake (none / 0) (#52)
    by flyer01 on Mon Nov 26, 2007 at 05:18:03 AM EST
    Sorry militarytracy, the full email is

    (forgot the au for australia!)

    Look forward to speaking to you,


    It's not just Grits and Me (none / 0) (#2)
    by Jeralyn on Wed Nov 14, 2007 at 04:05:05 PM EST
    From the National Association of Criminal Defense Lawyers Legislative Priority Page:

    NACDL urges Congress to reject its tendency to federalize crime and repeal legislation that is contrary to our system of federalism and sound crime control policy.

    In recent years, crime bills have granted federal prosecutors greater and greater authority by creating more federal crimes out of historically state and local crimes. For example, domestic violence, carjacking and failure to pay child support are traditionally the prerogative of state and local governments; federal jurisdiction is unwarranted, unwise and contrary to the Constitution. Regarding these and other federalized crimes, Supreme Court Chief Justice William Rehnquist observed that "one senses from the context in which they were enacted that the question of whether the states were doing an adequate job in this particular area was never seriously asked."

    Before enacting federal criminal legislation, Congress should consider whether a federal interest is implicated and whether the state or local remedy is inadequate to address that interest. The impact on federal law enforcement and court resources should also be assessed.

    ...Likewise, in the collaborative article, Justice That Makes Sense (1998), the then-leaders of the nation's three largest criminal justice groups -- NACDL President Gerald B. Lefcourt, National District Attorneys Association President William L. Murphy, and ABA Criminal Justice Section Chair Ronald Goldstock -- agreed: "Criminal and social problems are increasingly being addressed by the Congress with what many have come to regard as a purely political response -- calls to federalize more criminal activity and to lengthen already unwieldy prison terms. . . . There can be little doubt that increased federal prosecutive authority has adversely affected the Department of Justice's ability to fulfill its role of enforcing traditional federal offenses."

    Also irrelevant to the points made by (5.00 / 5) (#5)
    by Big Tent Democrat on Wed Nov 14, 2007 at 04:16:21 PM EST
    Herbert and myself.

    I cna ssure you that I have no problem with what you wrote and I feel confident neither would Herbert.

    I am almost certain that "states rights" Republicans, who passed a FEDERAL ban on partial birth abortion, would.

    I am certain that "states rights" Republicans will support Peter King's legislation to PROHIBIT  STATES from issuing drivers licences to undocumented aliens.

    For Republicans, "states rights" means  no federal environmental laws, no federal civil rights laws, no federal labor standards, etc.

    It DOES NOT mean no federal drug laws.

    Know your opponent Jeralyn.


    I agree with your overall take ... (5.00 / 4) (#18)
    by Meteor Blades on Wed Nov 14, 2007 at 09:46:39 PM EST
    ...(and Herbert's) on this. As you know, I have some personal experience with the scene in Neshoba County that made Reagan's speech and the Republicans' Southern strategy so abhorrent.

    But, as with Deconstructionist, I have some sympathy for the problem that Jeralyn is discussing. "States' rights" is code, and widely used by the "Southern heritage" folks when they're defending the flying of the Rebel battle flag from public buildings as the "real reason" for the - as they would put it - War Between the States.

    On the other hand, there are good reasons to be gravely concerned about over-centralization of government. It's not dissimilar to the way the right and the left use terms like, say, "liberty" and "personal freedom."

    Thus has "states' rights" has become a conundrum.


    Similar to jury nullification (5.00 / 0) (#20)
    by jerry on Wed Nov 14, 2007 at 11:10:37 PM EST
    I think that most laymen, if not most lawyers having learned of jury nullification tend to think that it is a very important power, and one that juries need to be made aware of.

    Apparently it's a double edged sword that was often used/abused in the south to allow racists to escape justice.

    And then there's the commerce clause abuse of Wickard v. Filburn.  So though the civil rights movement made me a believer in Federal Rights, I think I these days worry more about unitary executives and federal encroachment on just about everything -- so call me a state's rights defender.


    heh (1.00 / 0) (#25)
    by jimakaPPJ on Thu Nov 15, 2007 at 08:57:12 AM EST
    Apparently it's a double edged sword that was often used/abused in the south to allow racists to escape justice.

    I'll give you OJ Simpson.

    Your turn for some examples... (and they are some).

    Plainer. Racism was a NATIONAL issue.


    heh heh (5.00 / 0) (#34)
    by jondee on Thu Nov 15, 2007 at 04:15:15 PM EST
    I'll give you a POOR O.J Simpson who would've fried.

    But, you knew that.


    To Kind of Make the Point (none / 0) (#9)
    by archpundit on Wed Nov 14, 2007 at 04:48:20 PM EST
    Wasn't Reagan a key mover to make more federal drug laws?

    There are legit other uses of the phrase, but when one is talking to a mass audience--especially in Mississippi, I don't think there is any other interpretation.  


    I'm with you on this one J. (none / 0) (#3)
    by sarcastic unnamed one on Wed Nov 14, 2007 at 04:11:47 PM EST
    Tl's got a very strong point (none / 0) (#6)
    by scribe on Wed Nov 14, 2007 at 04:16:59 PM EST
    in that the federal government has its hands in entirely too many pies.

    The problem is that the title "states' rights" was taken over to mean almost exclusively resistance by (southern) states to enforcement of civil rights laws.  Those laws stemmed from and sought to end practices (primarily in those southern states) which resulted in a war which those states lost.  And they never got over that.

    I do not know whether it is, at this point in our history, even possible to rectify the meaning of "states' rights" away from that narrow racist one and toward rebalancing the relationship between the federal government, the states, and the people they both (should) exist to serve.

    Moreover, the point TL is trying to make - that the federal government has simply overwhelmed the states and gone into too many places where federal involvement is not appropriate - is only highlighted by one of the cases pending in the S.Ct. this term - Medillin v. Dretke.  

    That is the capital case out of Texas involving the Vienna Convention.  Astute readers will remember is it the case in which Bushie decided that he could just order Texas to comply with the Vienna Convention (providing aliens in custody with access to consular representatives) because he, as Preznit, claims to have sole authority to dictate on issues involving foreign affairs, and can tell states what to do (without going to a judge or a court) under/through the Supremacy Clause.  It put Killer George in the curious position of siding with the captial defendant against the Texas government, but that only came about because a ruling in Bushie's favor would mean he could rule by decree.  The transparent fraudulency of his position and its use as a vehicle for another power grab was made manifest when, after tying that case into knots, Bushie seems to have tried (and may have succeeded, IIRC) in withdrawing the US from the Vienna Convention.

    We certainly have come a long way....

    Well, there you go. (none / 0) (#8)
    by sarcastic unnamed one on Wed Nov 14, 2007 at 04:46:41 PM EST
    As a white mid-40ish born and raised in the east kind of guy, I never even thought to equate "states rights" with resistance to civil rights laws, though I'm sure that to many that that is exactly the case.

    See, you can learn something on TL once in a while. :-)

    And..... (none / 0) (#22)
    by AshleyA on Wed Nov 14, 2007 at 11:53:40 PM EST
    I thought the Civil War straightened all this up. The war was fought because the states were trying to obtain too much power. If its better for the well being of the country, and the state government still has an adequate amount of power, so what? If this means a criminal who commits a hate crime stays in jail longer, they deserve it. We have to look at the past to move forward.

    Actually it was fought (1.00 / 1) (#30)
    by jimakaPPJ on Thu Nov 15, 2007 at 10:45:20 AM EST
    because the states were trying to leave the Union, not exercise power within the union.

    That, of course, has nothing to do with the fact slavery was/is wrong.


    Eveidently, the term 'balance of power' (none / 0) (#23)
    by SeeEmDee on Thu Nov 15, 2007 at 07:59:28 AM EST
    isn't well understood. Like as not, the reason why the States were to remain viable political entities instead of postal markers was to insure against the possibility of a future overweening or openly despotic central government.

    (And please note the capitalization; it was not a mistake on the Founder's part. Each State was meant to be in essence a nation among a federation of nations, not provinces as today's States essentially are.)

    'Federalism' was meant to re-invigorate that concept, and was and still is favored by many rank-and-file Republicans. But with Raich that concept has been shot down in flames...thanks to a largely Republican dominated Supreme Court. The irony of this canot be overemphasized.

    Like every dynamic society, ours has evolved far from the original form. Universal suffrage, laws ensuring equal treatment regardless of race, creed, color (and no doubt in the future, laws against discriminating against those with differing sexual preferences) etc., would not be undone without violence in the streets. The cultural precedent has been set. To claim that a return to 'state's rights', even were it possible, would result in the re-institution of such abominations as slavery (as some commenters on other sites have claimed it would) becomes an exercise in reductio ad absurdum, and isn't worthy of comment.

    What is worthy of comment is to note that when the Feds are wrong, the damage caused by that 'wrong' is usually many orders of magnitude beyond what could happen in a single State (see the DrugWar). This is why Judge Brandeis said that States should be allowed to be laboratories in social experiments, if only to minimize that damage. A damage that the War on Drugs has visited upon 50 States...and which some of them have been trying to reverse. That the Feds seek to interfere with that is only the proof of the pudding...

    I think you overstate the case (none / 0) (#24)
    by Deconstructionist on Thu Nov 15, 2007 at 08:23:13 AM EST
     Sovereign "nations" would likely not have ceded regulation of interstate commerce,  allowed for the existence of the Supremacy Clause of in the Constitution or made or made the Chief Executive of the central government Commander-in-Chief of the military.  "Federation of Nations" more nearly describes the relationship under the short-lived Articles of Confederation than under the Constitution.

      In any real sense, the concept of states' sovereignty was decided by the Civil War because once the idea that a State cannot secede and membership in the Union is not voluntary is eliminated it is difficult to speak in terms of states'"sovereignty." The EU shares many (but not all) characteristics with our Union, but because each member nation can withdraw it still makes sense to describe the EU members as "sovereign."

      In terms of the balance of power here, I like many people tend to be pragmatic rather than pure. Most people want the Feds to control sectors if and when the Federal government imposes a regime more closely aligned with their preferences but object to federal control when when the Federal government  imposes a regime less in accordance with personal preferences than my state would.

      Abortion is a prime example of an area where most liberals support federal usurpation of state power. Inconsistently, in "federalism terms"  many liberals however strongly denounce federal usurpation of power over regulation of marriage.

      If we are honest, most of us must admit that we are not primarily "federalists" or anti-federalists" but rather goal-seeking pragmatists exalting the power of those allied and seeking to lessen the power of those opposed-- and out "federalism" views vary from issue to issue depending on the nature of the policy alignment in that area.


    Distinguishing crimes and civil actions? (none / 0) (#32)
    by votelaw on Thu Nov 15, 2007 at 11:58:36 AM EST

    Do you think there is a principled way to distinguish the federal interstate commerce power over crimes and the IC power to pass civil legislation?  For instance, United States v. Lopez (1995) was a criminal case under the Gun Free School Zones Act.  But United States v. Morrison (2000) started because Christy Brzonkala brought a civil suit for damages against Morrison (one of the guys who raped her) and the defendant challenged the constitutionality of the Violence against Women Act (VAWA).  Both cases restrict the power of Congress to  pass laws under the IC clause.

    For policy reasons, I think that Congress passes far too many criminal statutes and that we would be better off without the feds and the state double-teaming.  On the other hand, federal power over interstate commerce is the basis of the Fair Labor Standards Act (the wage and hour law), Title VII of the 1964 Civil Rights Act, and many other civil rights statutes.

    How can a court strike down just the criminal statutes and not the civil rights statutes?

    Ed Still

    Here's an example people might relate to (none / 0) (#44)
    by Deconstructionist on Fri Nov 16, 2007 at 07:42:43 AM EST
      which illustrates the costs of ignoring issues relating to federal powers and jurisdiction.

    Gonzales v. Raich is the recent case in which the Supreme Court upheld federal drug control laws against a Commerce Clause challenge when  California residents argued their use of the marijuana was lawful under California law (as "medical marijauna"), but it violated the federal Controlled Substances Act.  The Californians sought an injunction to prevent the enforcement of the federal law against
    them arguing Congress lacked power under the Commerce Clause to regulate their marijuana because they either grew it themselves solely for their personal use or obtained locally (in-state) grown marijuana for free.

      The Supreme Court upheld the federal statute (21 U.S.C. § 801 et seq.), finding it constitutional following the precedent of Wickard v. Filburn (this is the famous 1942 ase which held Congress could regulate (forbid) a farmer's growing of wheat even where he grew the wheat solely for his and his family's personal consumption).

       The Raich Court said: Wickard thus establishes that Congress can regulate purely intrastate activity that is not itself "commercial," in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.

     This is the downstream effect of a New Deal era case in which the Court made the profound discovery that the Congress can under the ICC, regulate activity that is neither interstate nor commercial.

      This is also why the government is not required to to prove an interstate nexus in drug prosecutions.