By Timothy Lynch
Greater than 10 years in the past, federal officers boldly claimed that they might create a drug-fee the US via 1995.
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Extra resources for After Prohibition: An Adult Approach to Drug Policies in the 21st Century
The clause was the principled anchor and substantive guide that was lost when a bitterly divided Court eviscerated it in the Slaughterhouse Cases. Nevertheless, here too the current Court has begun, very tentatively, to revisit those issues. In a case decided in its 1998 term, for example, the Court explicitly revived the Privileges or Immunities Clause to limit state power, even if its application of the clause may 23 Butchers’ Benevolent Association v. S. (16 Wall) 36 (1873). 25 Thus, the Court’s federalism jurisprudence is beginning to limit not simply the federal government, under the doctrine of enumerated powers, but states as well, under the federal oversight authority afforded by the Fourteenth Amendment.
Rather, it is limited by the rights there are to be secured, which is why it is crucial that courts understand the underlying theory of rights when they adjudicate under the Fourteenth Amendment. Thus, in the case at hand we confront the claim of some— including the state, acting on behalf of a majority, presumably26—to having a right to prevent others from producing, transporting, selling, buying, or using drugs; and a conflicting claim by those others to having a right to do those things, to pursue happiness as they think best, provided only that in doing so they not violate the rights of anyone.
As a gesture of lingering constitutional respect, however, Congress never says, when it enacts such measures, and the Justice Department never says, when it defends them in court, that Congress acted pursuant to its general police power. It is said instead that Congress is regulating “commerce” or an activity “affecting” commerce—when we all know it is regulating gun possession or gender-motivated violence or arson or what have you. Fortunately, the Court is beginning to see through that legerdemain.