I called my third-year paper advisor today. It was the best conversation I’ve had with a law professor, ever.
Peter, my advisor, is an older gentleman who wears a Harvard tie. You might assume he’s of the conservative, close-minded sort usually dressed in this garb.
Peter says he’s returning my messages. I’ve just written him an e-mail asking him a question I need him to answer, expecting that his experience as chief counsel to the FDA will enable him to answer me quickly and simply – I want to know where the FDA gets its authority to regulate drugs.
When Peter begins speaking, I initially get the feeling that he thinks the answer is obvious. He tells me that Congress can legislate anything so long as it’s not unconstitutional. The legislature gives the FDA authority by statute.
His answer seems to meet my expectations, but only for a second. After a moment, I find myself feeling shocked by how simple and obvious the whole system really is. I start appreciating that what I momentarily interpreted as condescension on Peter’s part was not that at all. It is simply that he has realized long ago what I am now realizing: Congress acts, the President agrees, and a law can inflict harm on people until a few of those people have enough power and time to think about it and take it to court.
“And where does the government get the authority to regulate drugs?” This was the second question I had for Peter, but at this point it seems almost irrelevant.
“Congress gets its authority from the commerce clause,” he says.
“And what about the Ninth and Tenth Amendments?” I ask him. What about the idea that the rights not explicitly in the Constitution are “retained by the people?” Isn’t that what the Ninth Amendment says, explicitly?
Before Peter can speak, I am struck by the reality of the conception of government I was taught in the Eighth grade, the abstract and super-basic depiction of the powers of the three branches. But the real epiphany does not come until Peter answers my third and final question. He tells me that you have to look at sources outside the Constitution to come up with these Ninth and Tenth Amendment rights.
I immediately respond, “But there isn’t much outside the Constitution, the law, that’s considered legitimate. So our rights are only those the government decides are rights.”
And what does this all mean? If the law is the only thing the law considers to be a legitimate source from which to extrapolate our rights, then there really are no Ninth and Tenth Amendments. There are no rights outside the law.
Peter says I’m right; there’s very little that’s been left to the individual.
And meanwhile I have two weeks left to write a 50-page third-year paper on the right to use drugs.
In the end, this might all turn out all right though, right? Maybe if I refer to Locke and Hobbes enough times, I could one day be considered amongst the natural law types. But that’s only if what I say ever gets put into the law. And the tragic absurdity of it continues.
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