From: Matthew Yglesias
Matthew Yglesias

<i>Raich v. Ashcroft</i>

Andrew Sullivan gets this one right:

ANOTHER BLOW TO FEDERALISM: Regardless of how you feel about medical marijuana - I'm strongly for it - the Supreme Court case was really about the right to the federal government to tell states what to do. If the feds can forbid someone who grows pot in his own garden, sells none of it, uses it for his own medical use and is allowed to by his own state, it's still covered by the Interstate commerce exemption. Yeah, right.

Well, no, he's wrong in that he thinks this is a bad thing, but he's right that the important issue here was the federalism one, not the medical marijuana one. Sympathetic as one might be to the defendants in this case, a victory for their side could have led to very bad consequences down the road. Advocates of marijuana law reform are welcome to press their point of view in congress.

Comment viewing options

Select your preferred way to display the comments and click "Save settings" to activate your changes.
On June 6, 2005 - 1:55pm Electoral Math said:

But, the current, short-term, and medium-term configuration of congress makes it incredibly unlikely that advocates of marajuana law reform would get anywhere in the next ten years.

In the progressive era, Milwaukee and New York State were proponents of strong federalism, hoping they would be left alone by the national GOP so they could build their own local progressive governments. It doesn't strike me as surprising that given a return to this sort of arrangement of the country that liberals would return to advocating principles of "states' rights".

In the wake of Raich, the best bet for marajuana law reform advocates is to push for state laws that turn misdemeanor marajuana posession into a ticketing offense. Such measures have gotten praise from law enforcement in crimson red parts of Missouri, among other places.

 This strikes me as much different from issues of education an economics, where inequity anywhere in the United States is something that ought to concern liberals. Making incremental state & local changes to marajuana law seems perfectly reasonable.

On June 6, 2005 - 2:04pm Freder Frederson said:

how I feel about medicinal marijuana, but I'm all for recreational marijuana!

On June 6, 2005 - 2:10pm Glenn in NYC said:

and you'll see that the longer-term federalism implications were the driver here.  The four "liberal" <cough> justices -- Stevens, Souter, Ginsburg, and Breyer -- along with Kennedy (who, at least in Dobson/DeLay's mind, is now the "fifth") voted to uphold the prosecution in this case.  It was Rehnquist et al. who voted the other way, just like they voted in Lopez and Morrison to curtail the reach of the Commerce Clause. 

Stevens bends over backward to demonstrate his sympathy for the medical marijuana advocates on a policy level, but he knows that they can't let the Commerce power be pruned back in this manner.  Because if you can call this "purely local" activity that is beyond the scope of Congress to reach, then there goes things like Title VII and the ADA, both of which rely solidly on that Commerce Clause power for their validity. 

On June 6, 2005 - 2:12pm Robert Tennyson said:

Standard interpretation of Wickard v. Filburne (did i spell that right?) was all that was required.  I suppose that some thought it would be thrown in the can today, and it's a good thing it wasn't.

Let the democratic (and republican moderates) do what Stevens suggested: atttempt to pass a law.  Really, this is just an opportunity to pass or promote some reasonable legislation.  Despite the fact that it isn't talked about too much, allowances for medical marijuana have a substantial degree of public support.  Reasonable  Congressmen and Senators would do well to push for a limited exception to the federal drug statutes under which states could decide to exempt themselves from the federal enforcement scheme insofar as that scheme pertains to marijuana used for medical purposes.  When the republican majority sets fire to themselves yelling about corruption of the public morals, bring forward some of the sympathetic cancer patients who want to use it, and let the radicals burn themselves. 

On June 6, 2005 - 2:12pm Libertine said:

Alcohol is a much more dangerous susbtance.  The effects of alcohol addiction are a great strain on our nation.  Marijuana is a "gateway drug" and a drug that contributes to the crime problem in this country, so I've heard.  I dare say more young people start on a path of drug abuse with alcohol then pot.  And the only reason violent criminal elements profit from pot is we have criminalized it.  In a perfect world our country would learn from history that criminalizing a substance (alcohol in the 1920's) like marijuana is not going to make people not use it and end up making the problem a whole lot worse.  Don't get me wrong I am not advocating making alcohol a criminal substance again but incarcerating marijuana offenders is not solving the "drug problem" in this country one little bit.  It is just making the administration of the country's prison systems a nice little "growth industry".

 

And I didn't even touch on the federalism issues I have with the ruling...

On June 6, 2005 - 2:15pm Dilan Esper said:

Under the Court's decisions in New York v. United States and Printz v. United States, the Commerce Clause power is much more limited when applied to the sovereign actions of the states. So, the solution to this problem is for the states to grow and distribute the marijuana themselves. If they did that, an attempt by the federal government to enforce the Controlled Substances Act against the states might very well fail on Tenth Amendment grounds.

On June 6, 2005 - 2:25pm Glenn in NYC said:

I had meant to point out in my previous comment that one nit I have to pick with Andrew Sullivan's comment is that this is not about the Federal Government telling the states what to do -- this is about the power of the federal government to directly regulate activity that the states have chosen not to.  The court's been far more aggressive in curtailing the former than the latter.  If in fact it did become an issue of direct regulation of the states' activities, as Dilan's suggestion would involve, then this could indeed go the other way. 

Not sure any state would be willing to go that far, but maybe.

On June 6, 2005 - 8:52pm anonymous user (not verified) said:

Would the state distriibute plants or the leaf?  Or would the state need to operate clinics(?) where patients would come to receive their dose.  The implications are hilarious any way you look at it.

On June 6, 2005 - 2:24pm anonymous user (not verified) said:

Glenn

you're right that federalism drove the opinions.  But you didn't mention that Scalia went with the majority.  His concurrence is basically an effort to answer O'Connor's concerns about the post-Raich reach of the Commerce Clause.  She makes the logical observation that the Court now appears ready to uphold questionable regulations of facially non-interstate commerce if they're part of a broader scheme -- or as she puts it, that Lopez now reads like nothing more than a drafting guide.

Scalia would like to comfort her by saying such regulations are limited to the reach of [Commerce plus Necessary and Proper]...but, Stevens' opinion - much more faithful to Wickard - picked up 5 votes.  As somebody (Balkin?  the Volokhs?) said, either way the Federalism Five have probably lost Kennedy for as long as the political winds are blowing in favor of strong central government.

 
 

On June 6, 2005 - 2:27pm neil said:

<i>Sympathetic as one might be to the defendants in this case, a victory for their side could have led to very bad consequences down the road.</i>

 

I'm willing to believe that, but I need more. What would have been the 'very bad consequences' of a statement that there is, in fact, still an Interstate commerce clause? It seems like there might be more bad consequences of a decision which essentially states that now that cars have been invented, all trade everywhere is interstate commerce. But I don't write this stuff for a living, so I'm asking you, what consequences?

On June 6, 2005 - 2:29pm anonymous user (not verified) said:

I'm glad to see at least someone on the left is being honest about not caring about the constitution.  It's a position I disagree with, but I'd much rather have Yglesias proclaiming it openly so it can be argued for and against, as opposed to simultaenously eviscerating and proclaiming your respect for the constitution, which has been par for the course these past 70 years.

On June 6, 2005 - 2:40pm Stygius said:

This ruling is a huge extension of commerce authority into non-commercial zones that are clearly within states' reserved police powers. Although I agree that an intrastate market in medical mj authorized by state ballot initiatives can be affected by Congress, Stevens' goes much, much further.

Stevens has to come up with a justification not just for applying the CSA to a state-regulated market, but also to the doctor-patient relationship, since the DEA has been targeting doctors for the kinds of prescriptions they write. Doctor licensing and prescription authority clearly falls under state purview. But this ruling goes not just to intrastate economic activity (a no-brainer Stevens knocks out of the park) but also to non-economic intrastate activity (homegrowing) that is clearly subject to state policy.

Overriding states' authority over private, non-economic intrastate activity is the real federalism problem here, not to mention the Due Process privacy issues affected but not addressed by the opinion.

On June 6, 2005 - 2:41pm anonymous user (not verified) said:

Dilan

that would make a hell of a story.  raises an interesting political question too, whether States-Growing would be as popular as States-Allowing.  Absent a big anti-DoJ groundswell (sign me up!) I don't know if the voters, e.g. in California, would go for that as readily, especially since the state law still binds all the local police and sheriffs.

On June 6, 2005 - 3:09pm schmog said:

It does seem to me that if any case is to argue for the limit of the commerce clause, this would be it.  You've got one person growing pot in her backyard thanks to a state medical law.  It's hard to see how that constitutes ISC.  Otherwise, the feds can regulate anything - and that cuts both ways, good and bad.  If there's no limit to the commerce clause, then in addition to banning medical pot, who's to say the feds can't ban using condoms in your bed (they're sold across state lines) or limiting the amount of beer you can stock in your house?  In that sense, Federalism goes out the window.

On June 6, 2005 - 3:18pm Khalsa said:

I really can't understand a country built on freedom banning a drug as harmless as pot.  Being a Sikh, I don't smoke or drink, but I fail to see what public good is done by preventing people from exercising their right to experiment with their physiology.  Who controls the human body - you or the government?

On June 6, 2005 - 3:21pm anonymous user (not verified) said:

I don't quite understand your point, MY. What's your view? That regardless of the merits of the issue, this ought to be the domain of the federal government, just because you like the federal government more than any other level of government? That marijuana in particular is a federal issue? What's your angle here?

On June 6, 2005 - 3:33pm Electoral Math said:

That was what I thought might be the other goal of the liberals. It was clear during Oral Argument that Stevens might agree with the appellants on policy grounds, but not on the law, but said (if you read between the lines) "you seem to have trapped the conservatives between a rock and a hard place". And as either Souter or Breyer said, the government was basically arguing that Morrison and Lopez were wrongly decided, though, they wouldn't say as much.

 So, while Scalia wrote separately because I think he thought the majority opinion went too far in criticizing Lopez and Morrisson, getting in some good licks on those decisions might be a good idea.

On June 6, 2005 - 3:34pm anonymous user (not verified) said:

I think this post really demands some sort of an explanation of why Sullivan is wrong on the merits of the Commerce Clause. How is it "interstate commerce" if someone "grows pot in his own garden, sells none of it, uses it for his own medical use and is allowed to by his own state." Does anyone who shares Matthew's opinion care to comment? 

On June 6, 2005 - 3:46pm anonymous user (not verified) said:
Matthew implies that any limit on the legislative jurisdiction of the federal government is harmful to the cause of liberal progressivism. So the terminally ill will just have to take this one for the team. I wonder about the premise. Clearly, there are some states where progressive liberals could have an influence that they are unlikely to obtain at the federal level for a generation. If progressive experiments in health care at the state level work, they could have a huge impact on national politics. The problem is that they would require some kind of residency requirement, and centralist interpretations of the interstate commerce power are an obstacle. Canadian courts have never embraced the all-encompassing interpretation of our federal "trade and commerce" power. Social programs and regulation of business are more decentralized. The effect has arguably been good for the Canadian left.  Single payer healthcare was introduced in Saskatchewan first, and succeeded there before it was expanded nationally (basically through the federal spending power). Something similar is happening in Quebec now with universal daycare. 
On June 6, 2005 - 6:26pm anonymous user (not verified) said:
That's true, but not important. In Canada, the residual power is with the federal government, while in the United States and Australia, it is with the states. But, for most purposes, the real residual power in Canada is the provincial power over "property and civil rights", while in the US the real residual power is the federal power over interstate commerce.
Just shows that who appoints the judges is more important than who writes the words (Canada's highest court, until the 1940s, was the British House of Lords).
On June 6, 2005 - 3:49pm Steve S said:

I think she was spot on.  The Fed had no jurisdiction in this matter.

The fact that Scalia voted for this pretty much shows just what a bad idea it was Matthew.  You should know better.

On June 6, 2005 - 3:50pm Stygius said:

Even Wickard didn't go this far. Wickard dealt with regulating wheat production, some of which went to market, some of which didn't. Wickard ruled that the Federal Government's regulatory powers extended to the wheat that didn't go to market.

But this is different. First of all, there was no federalism implication to that case -- state law wasn't being trumped. Secondly, the economic effect was clear (when some wheat didn't go to market, the market was effected), but that has no relationship to this case. There is no legal mj market, beyond the banned one.

Scalia argued that homegrown is so close to becoming a commodity that the Federal Govt can regulate it as if it were, simply because it is fungible. But is Congress then regulating commercial activity, or is it using commercial powers to regulate other ends? Drug policy is clearly of the latter, so then arguing that the Federal Govt can regulate a non-commercial intrastate activity using interstate commerce powers to achieve non-commercial policy goals is a bit rich. What a shifty basis to intrude in what is clearly the state's sphere of power!

On June 7, 2005 - 11:32am Petr Palchinsky said:

People should read Clarence Thomas's dissent where he points out that such a broad reach of federal power totally ignores the tenth amendment. It was a surprise to me to find myself agreeing with Thomas. Maybe there is hope

The other isssue raised is why marijuana in a schedule 1 drug which means that posession is illegal with or without a prescription. With a prescription you can possess heroin or morphine with nobody claiming it impacts interstate commerce. If marijuana were reclassified cshedule 2 or higher, much of the problem would go away.

On June 6, 2005 - 3:51pm NH Dem said:

States' rights are real and important, and should not be overridden for light and transient reasons.

Denying American citizens the right of suffrage, the right to trial by a jury of their peers, the right to peaceably assemble and the right to petition for the redress of grievances is certainly sufficient grounds for the federal government to assert its supremacy over any state, notwithstanding the protestations of retrogade thugs of Jesse Helms's ilk.  Allowing a cancer patient to engage in a medically approved treatment which has zero negative effect on any other human is most certainly not.

One of the great errors that arose from the civil rights struggle was the unconscious presumption on the left that the federal legislature and executive have wisdom and authoritysuperior to that of any state, and thus the right and power to trump any act of any state.  This is absolutely contrary to the letter and spirit of the Constitution.

It is in the nature of the beast for any group displeased by any act of a state to look around for some way to get what they want.  And it is in the nature of the beast for ambitious and self-promoting Congressmen to seek out any issue that strikes a chord with a large enough chunk of their constituency, and to propose a federal remedy for it that will bring them glory for having acted on the side of good.  School shootings?  Pass a federal "Safe Schools" act.  Drugs?  A federal "Drug-Free School Zone" law.  Non-draconian state laws or sentencing guidelines for some eye-catching class of crime?  Make it a federal crime, and slap on mandatory federal sentences.  Look, we're doing our jobs, we're responsive, we're keeping you safe, we're passing good laws, re-elect us.  It is in the nature of the beast, but it is not in accordance with the Constitution, with the founding principles of our republic, or with democracy's fundamental distrust of unchecked concentrations of power.

State government is an oxymoron if it is only the governor of the discard pile of choices the federal government didn't bother to make for it, and the emasculated administrator of whatever arbitrary choices it did.

On June 6, 2005 - 4:03pm Stygius said:

The whole subtext of Stevens' opinion was that there was going to be some kind of anarchy unless the Feds had this kind of I.8.3 authority. Nonsense, states have police powers to exercise because they are better at it. Deciding how significant the homegrower is, how much of a threat or boon to society, clearly falls under the Reserved Powers Clause, and state statutes and ballot initiatives have been passed to reflect that. And anarchy hasn't ensued.

On June 6, 2005 - 4:04pm JimPortlandOR said:

MY seems to be in the camp of those who think Congress can and should go anywhere they like with the law, federalism be damned.

Some awful things have been done in the name of states' rights, and state laws could do great harm in many areas.  But the Congress should not have unfettered rule of everything.  At one time the Congress could be counted upon to intervene sensibly when the national interest was strong.

Now, I'm not so sure that further diminishing state action is a bad thing, particularly in the area of personal rights.

The effect of this ruling will not be to reduce the production, sale and use of marijuana.  It will mean that those who would benefit from it for medical reasons will be forced to beoome law-breakers and pay the illegality-premium for a meidcally useful drug. 

Grandma becomes a felon - isn't that nice? 

On June 6, 2005 - 4:06pm tjrj said:

Is it perhaps that by intervening here on the pro-marijuana side the court would set up another decision for the crazy-right to attack for 32 years? Like another intervention, ca. 1973? I don't know, just throwing stuff out there. Seems pretty silly to call every-damn-thing interstate commerce- even if a lot of good programs ride on that legal fiction.

On June 6, 2005 - 4:07pm Glenn in NYC said:

Many posters are taking MY to task for his position and asking why he thinks it's a good idea to have the commerce power reach this far.  I can't, and wouldn't, speak for him.  And I don't know that having a more expansive reading of the commerce clause is necessarily progressive or anti-progressive.  But here's one example of where a broad interpretation of Congress' commerce power has undoubtedly advanced a progressive cause and that would, in my opinion, have been endangered by any other ruling in Raich:  Title VII of the Civil Rights Act of 1964, which prohibits private employment discrimination on the basis of race, sex, and national origin. 

If I'm remembering right, the basis for upholding this law -- the congressional power under which this law has been upheld -- is the Commerce Clause power.  Indeed, it's hard to imagine another power which could be invoked.  (Perhaps -- perhaps -- the Section 5 power of the Fourteenth Amendment, but we're talking regulation of private employment, not state action, and in any case the Supreme Court has taken a more restrictive view of Section 5 as well.)  Now, remember, this law applies to all employers with more than 15 employees.  While that surely covers a lot of employers whose activities are undeniably "interstate" in character, it also covers a hell of a lot whose activities are not "interstate" in any meaningful sense, or at least whose employment practices wouldn't have any meaningful impact on interstate commerce, except in the aggregate. 

On June 6, 2005 - 4:44pm anonymous user (not verified) said:

...which just goes to show that such Civil Rights protections should be given their own amendment, which is what Stevens ought to have recommended the Congress work on, either that or fully dismantling the Controlled Substance Act, period. Title VII should not hinge upon a fragile, overbearing interpretation of the Commerce Clause which is now being manipulated to extend the War on Drugs, at the expense of the state's power to regulate the doctor-patient relationship.

And if MY is implying--and I can't tell--that the medical marijuana issue is potentially dangerous, because of marijuana's effects on society yadda yadda yadda, then I'm happy to distance myself from whatever "progressive" movement he is a part of.

Hopefully that is not the issue. 

On June 6, 2005 - 6:06pm Stygius said:

A lot of federalist types aren't freaked out by an expansive reading of the Commerce Clause; I'm certainly not. But Raich is different. It isn't an inter- versus intrastate issue so much as a commerce versus non-commerce issue. I also think that there are many non-commercial activities to which the Commerce Clause can extend.

However, in this matter it is an issue of a non-commercial, intra-state activity that also falls under states' 10th Amendment reserved powers. There's nothing wrong with broadly reading the Constitution, IMO, but at the end of the day it means reading all of the Constitution.

On June 6, 2005 - 6:37pm honestpartisan said:

As was pointed out above, the Civil Rights Act hinges on the Commerce Clause (Katzenburg v. McClung).  So does the federal minimum wage law, the NLRA, and a variety of economic regulation.  With judges like Janice Rogers Brown advancing up the Article 3 food chain, chomping at the bit to redefine the constitution as the Gospel According to Hayek, I'm happy to bulk up what pro-Commerce Clause precedents there are as much as possible.

On June 6, 2005 - 6:45pm anonymous user (not verified) said:

The more stupid laws on the books that people feel comfortable breaking, the more people get used to breaking the law.  People who might otherwise never think of cheating on their taxes do so because they have become used to breaking the law.

On June 6, 2005 - 8:02pm Milo said:

for victims of the drug war (I would urge those interested to scan his typepad blog archives on the issue if you are skeptical on this count), one is not surprised to read this kind of nonsense on his blog. I won't go on at length about the fact that the commerce clause simply does not apply here (others have made the argument above much more eloquently than I...why do states have a right to regulate alcohol sales but not the growing and dispensation of marijuana?), but the human dimension here is profound. Many thousands of people with chronic illnesses and serious injuries who don't respond to traditional opiate-based painkillers or their synthetic counterparts or who are concerned about the side effects and risks of these drugs (which kill thousands of people every year, and which are extremely addictive) are now vulnerable to federal prosecution, and the medieval penalties implied therein. Do the people who countenance this decision understand that the alternatives for most users of medical marijuana are not Tylenol and aspirin (the latter of which incidentally kills almost a thousand people per year) but  far more dangerous opiates like percocet, vicodin, and morphine?

The constitution can and has been from the beginning twisted into all manner of contortions, and the tired old losers on this court know damn well that a) there is not a chance in hell medical marijuana will be legalized by this congress and that b) this administration will almost certainly begin to prosecute users of medical marijuana in the near term. It is truly the height of elite cluelessness and inhumanity.

I am a left-libertarian Democrat. I supported the war in Iraq. I support limited bureaucracy and regulation. I believe that people, not the government, know whats best for themselves and their families. I also support a fair deal for the middle class and our most vulnerable. I don't much like Ivy League and   Washington elites, with all their calcified thinking and lack of imagination (although given my political proclivities my anger is not the anger of the Deaniacs). The Democrats have been on my shit list since they enabled the passage of the odious bankruptcy bill. That was nearly the final straw for me. This could be the last one. If there is not support from Washington Democrats for the legalization of medical marijuana at the federal level I am one step closer to registering as an independent, and casting protest votes until one party or the other comes to its senses.

On June 6, 2005 - 9:02pm Jedmunds said:

Getting the correct decision in Raich does not endanger the Civil Rights Act or most other federal laws.  It would have been a perfectly reasonable decision in conformance with Lopez and Morrison. 

I'm having a hard time believing that some of you people can't distinguish between regulating a business engaged in interstate commerce and growing something for personal use according to state law.  Others have pointed out just how egregious this decision really is, so I won't bother, but anyone who thinks that the minimum wage was in danger of being overturned is just plain wrong, embarassingly so.  Yglesias, himself here, seems to have read a few of his favorite phrases, and without having any idea of what he was talking about, jumped to conclusions. 

On June 6, 2005 - 10:06pm anonymous user (not verified) said:

I'm the same Anonymous Hero who posted the "Why Does MY Hate the Constitution" comment earlier. Perhaps I'll get myself a real identity here, if TPM Cafe's comments section starts to suck a little less vigorously. Does anyone know how to make the comments display in chronological order, so they resemble a conversation? It must be possible, right?

Anyway, back to Raich. I notice that no one has offered a defense of the decision, on its merits. Some people have followed MY's lead in pointing out that an everything-is-interstate-commerce approach has some desirable effects, both policy-wise and political. But no one has explained why they think that "someone who grows pot in his own garden, sells none of it, uses it for his own medical use and is allowed to by his own state" is engaging in interstate commerce. Please, enlighten me.

On June 7, 2005 - 2:02am Jim Texan said:

Sorry to pile on, Matt, but I also disagree (though a bit more respectfully than my predecessors, me bein' a dirty hippie librul an' all). Andrew's right <ick> on the merits - the intent of the ISC was primarily to address, well, interstate commerce. Not theoretical "I-guess-it-could-end-up-across-state-lines" commerce, but actual commerce with real fees and taxes that changed from state to state. Another major intent was to introduce a measure of constraint on large corporations. Given these sensible and obvious purposes of the law, Gramma-Hippie-With-Glaucoma growin' doobies in her own backyard is w-a-a-y outside the ISC's proper jurisdiction, on a simple commonsense basis. She just doesn't fit the profile.

Sure, the dirty hippies could go petition Congress, trotting out cancer patients to stoke some sympathy. But it would be better if the feds had a constitutionally obvious way to regulate substances of mixed social concern and broad interest, rather than some twisted injuction based on an activist interpretation of an unrelated law. The precedent is there but it's weak, especially when you consider the obvious intent of the law. Deny this particular interpretation of the ISC and who knows, perhaps a more sensible precedent to guide fed activity will organically arise - homegrown, if you will. Happens all the time, historically speaking.

Also, I think you're overrating the dangers of a pro-Raich verdict. The feds have a well-established right to interfere with state business if someone's constitutional rights are being violated. The fight between conservatives and liberals has always been, and probably always will be, over what actions constitute a violation of said rights. That's the battle that counts. And in case you haven't noticed, neither side is very interested in state's rights these days. So the general right of the feds to interfere would likely remain prominent, even if they're denied the chance to bonfire Gramma Hippie's stash and throw her in the clink. Other federal protection issues, such as the right to an abortion, will remain defended by the feds - as long as the feds feel like defending it. But that's a political concern, not a constitutional one, and the honest path is to keep the two separate.

Just because a broadly-interpreted ISC would be tactically handy for progressive pet projects doesn't mean we should abandon common sense. Common sense is a valuable and appealing quality in confusing times, and we'd be wise to use it as our guide.

On June 7, 2005 - 10:14am anonymous user (not verified) said:

http://www.theagitator.com/archives/021590.php#021590

...<span class="extras">And there it is. The prominent writer for the "moderately liberal" American Prospect would rather let sick people suffer and die and side with giving ever more power to the Bush administration than give an inch toward letting states of localities govern themselves. Because, apparently, should his side ever get power again, Yglesias wants to be sure he can impose his policies on the rest of us. And siding with sick people now might hamper his ability to slap high taxes, heavy regulations, and liberal utopia on red staters later.

As Thomas noted in his dissent, if government agents can raid a woman's house and arrest her for six marijuana plants she was growing for her own use, there is simply no limit to what else it can do. Enumerated powers are meaningless. And that's exactly what people like Yglesias want. Eradication of enumerated powers, federalism, and the Ninth and Tenth Amendments. Complete authoritarian federal control over everything. States may as well not exist.

This is what liberalism has devolved to. I'll call it "Beltway Liberalism." Its values? Getting power, and wielding power. Letting a few Very Smart People run your life. They may feign at principles like compassion, racial equality, and civil liberties, but should any of those principles hamper the getting of the power, or weaken the wielding of the power once it's gotten, they're readily discarded. The right may have abandoned federalism and limited government for "security," power, and moral authoritianism. But the left too has abandoned its best attributes, and embraced the worst characteristics of statism.

</span&gt

On June 7, 2005 - 1:41pm Adrock said:

Clearly, there are some states where progressive liberals could have an influence that they are unlikely to obtain at the federal level for a generation. If progressive experiments in health care at the state level work, they could have a huge impact on national politics.

This sounds both like a decent progressive strategy and ok by my standards of liberalism in a way that works well with the argument of states rights.  I think Matt seems to think this is a selfish point of view. But from my point, I think its fine. Ultimately, am I supposed to care whether Alabamans have homosexual marriage or medical marijuana rights? I think Matt says we should. Honestly, I don't. Personally, I think the display of working policy is the best way to prove that yes, its a working policy!  Why not try it in the "progressive" states first. If the ideas spill over into the reds, all the better. If not, quite frankly, thats their internal problem.

On June 7, 2005 - 1:49pm anonymous user (not verified) said:

The more I read, the more I like the majority.  Conversely to the poster who "likes" the way Matt is wiling to ignore the constitution, I "like" the potheads who will cheerfully admit that they just want to smoke weed, laws or no laws.  That's honest, man.

All this drift about whether Aunt Sally's medicinal pot is commerce or not obscures something more basic - which is that, one marveous poster aside, we don't know all that much about just how medicinal pot is to begin with. Really.  I'm sure cancer is better stoned, lots of things are. :)  That's not the same as good medical research proving the medicinal uses and benefits of pot.  Yes, I realize there's a Catch-22 in that setup, but I'd rather press the FDA to properly research pot than have "activists" making Cali the cheerful experiment in medicinal pot.  One of these has some seriousness to it.

So to answer one question, the reason, generally, I can see interstate commerce being involved is that the illicit nature of pot makes it too easy for Sally's nephew to say, "hey, Aunt Sally, since you probably won't smoke all that weed in your yard, why don't I take some to sell back home?"  Sally grows her own, smokes it herself, has medicinal purposes behind it, she just has... some extra. Interstate commerce?  Doesn't seem like too far from a common sense leap.

And that's the thing - it would be helpful if the "legalize it" folks were as honest as they could be - it would provide honest debate, and it would mean not needing to be in favor of shredding something like the Commerce Clause for no reason than to get more good weed.  Ultimately, it seems to me, what potheads want IS interstate commerce in weed.  And who should regulate that?  I don't think it should be left to the Governor of Alabama... do you?

Although, just to be completely frank, I'm not, in fact, in favor of legalization.  And that part of the debate - lefties who don't like legalization - shouldn't be ignored either.

weboy (who still can't be bothered to register)

On June 7, 2005 - 1:52pm Adrock said:

(why do states have a right to regulate alcohol sales but not the growing and dispensation of marijuana?)

Good point. Many people brew their own beer or wine, but the government doesn't say they can't make it based on the fact that their product might cross state lines.  The argument that homebrew isn't being sold is just as silly with homegrown. Yes, mostly it isn't, but who is to say it can't be? Couldn't I just as easily sell my moonshine? With or without a liquor license?  Ultimate point being, regulate it just like booze and we'd all be better off.

The instant that happens, I invite all of you to come to Adrock's Bodega and Coffee Shop for the best homegrown this side the Mississippi!

On June 7, 2005 - 2:43pm jalrin said:

Under NLRB v. Jones and Laughlin Steel Corp. (the case that upheld the New Deal) production of a commodity is commerce.  The Supreme Court has also held in Wickard v. Filburn that the production of a fungible commodity for personal use can be regulated if the aggregate of such production would affect interstate commerce.  Raich falls within this category for two reasons.  First, if individuals are using Marijuana then they will not be using other medications which have interstate supply chains.  Second, Congress has created a national regulatory regime for all drugs (including medicines) and has decided to control their use to protect public health and safety.   In order to control the use medications, Congress has the power to stop private persons from making and using pot penicillin, or any other Controlled Substance in violation of the law and it does not matter of the judges think the law is good or bad (see Carolene Products).

P.S. Printz only applies to legislative decisions.  Under Reno v. Condon Congress can stop states from selling contraband.

On June 7, 2005 - 3:35pm anonymous user (not verified) said:

Jim Texan wrote of  the interstate commerce clause  that


"Another major intent was to introduce a measure of constraint on large corporations."


Jim: have any evidence for this assertion?  I've never read anything that made me think that the Founders were afraid of (or could even grok) Big Business.  Was fear of an American version of the Hudson Bay company or somesuch really on anyone's mind in 1789 ?

On June 7, 2005 - 4:39pm anonymous user (not verified) said:

The founders not "grok" big business? Hmmm I wonder who the tea belonged to that the patriots decided to drop into the murky waters near Boston. Or perhaps the new burgeoning opium trade which founded the city of Hong Kong. How about the Island of Hispaniola worth more than every parcel of land in North American because of the rum trade. 
I think they understood the power of big business and the effect it had on the business of the crown. One should never underestimate a forefather. :)

On June 8, 2005 - 5:01am anonymous user (not verified) said:

The time has actually come where the government does not care about its own people,how they survive in always of life . most of what any body does is leagle but let a person with cancer try to prolong thier life and bam! you get shot down!! i have lived with a brain tumor for 22 years ONLY because of what i do do .i found info in some medicsl journals back in 83 when i spent 4 months in hospital for this. it gave a little control of my life ability to live to see my kids graduate and 4 grand children. i was given a 20 percent of comming out alive and not with a vegetale name .it helped in my treatments to put it in remission and controls my granmaul siesures from surgery. i am also a walking talking sttistic!!! the cancer i have has a five to seven year span for living once it gros and being removed doesnot help it comes back full force.right now im wash u's statistic.the government started all this very long ago making it accesable at pharmacy even knowing then thier was medicinal benifits from it , then they take it away, the mob takes over and makes a better run at it. there is alot of sick people that depend on the use of pot daily as i have for 22 years.somebody needs to take a good look at how long the indians used it and other countries too!

Comment viewing options

Select your preferred way to display the comments and click "Save settings" to activate your changes.