1998-11-09 - black markets and color of law (was privacy fetish)

Header Data

From: Jim Burnes - Denver <jim.burnes@ssds.com>
To: Petro <petro@playboy.com>
Message Hash: 1a8627131cc2ea2966abfc177ae5e844adef0faac303fc6b53e18c4bd02d237c
Message ID: <Pine.SOL.3.91.981109151519.19403B-100000@denver>
Reply To: <v04011707b26cda546a55@[]>
UTC Datetime: 1998-11-09 23:05:47 UTC
Raw Date: Tue, 10 Nov 1998 07:05:47 +0800

Raw message

From: Jim Burnes - Denver <jim.burnes@ssds.com>
Date: Tue, 10 Nov 1998 07:05:47 +0800
To: Petro <petro@playboy.com>
Subject: black markets and color of law (was privacy fetish)
In-Reply-To: <v04011707b26cda546a55@[]>
Message-ID: <Pine.SOL.3.91.981109151519.19403B-100000@denver>
MIME-Version: 1.0
Content-Type: text/plain

On Mon, 9 Nov 1998, Petro wrote:

> 	If you go back 10 years, and if "this country" was the soviet
> union, a tomato purchased from the wrong person could get you in trouble.
> 	Entirely HOW the item was sold.
> 	This is true in this coutry. Licquor is legal if purchased thru the
> approved store.
> 	Try selling the same thing out of the back of your truck.
> 	It is the product, or how the product is sold.

Why is this so hard to fathom.  Black markets are simply markets
that are not approved of by the reigning force monopoly.

That could also be read as illegal, however, there are many
goods in the united states that are only illegal by color
of law, not in actual fact.

Of course the fact that the regulations are only under color
of law won't stop you from spending time in the cooler if you're

Most of these laws have to do with assigning law making to

Are there any legal historians out there that have researched
the nature of bureaucracies like the FDA, DEA and BATF and the
lattitude that congress has given them in declaring various
good illegal?  How much power could congress hand over to
a department before the law giving them the power could
be declared unconstitutional?

For example, a constitutional amendment was necessary to
make alcohol illegal.  Why was this necessary?  Why
was it not necessary to do the same for every other
substance?  And if not for every other substance, then
for substances in general?

"Congress shall have the power to declare intrastate trade in
various products illegal."

It would be very simple.  It would be *the* prohibition act.
It would cover everything from encryption, to newpapers,
to alcohol and other drugs.

What is the basis for bureaucratic power and has it ever
been formally challenged in the supreme court?

My guess is that this power has not been seriously challenged
since Roosevelt stacked the Supreme Court and they decided
that the the welfare clause was a broad grant of power to
the federal government.

If I remember correctly, a closely related decision by
the Supreme stated that the commerce clause did not allow
the banning of weapons from "school zones" because even
though having weapons in school zones might effect commerce
it would effect to such a small degree that the commerce clause 
didn't reach that far.  The supreme court said they didn't know
how far it did reach.

It would be interesting to push the supreme to rule on the
welfare clause.  Could it reach far enough to ban nicotine?
Could it reach far enough to grab the fatty mc'ds hamburger
out of your hand?  Could it tell you what sports are
too dangerous?  What about skiing?  Car driving?  Parachuting?
Scuba diving?

I'm beginning to look forward to Y2K.