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You are here: Home / Politics / Domestic Politics / Reefer Madness

Reefer Madness

by John Cole|  June 6, 20053:59 pm| 39 Comments

This post is in: Domestic Politics

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Folks- my outrage over the SCOTUS ruling is not because it was about the fight on the idiotic war on drugs. This case was only on its surface about drugs. This is about federal overreach.

If the feds now have regulatory control over an obscure weed you grown in your yard for your own personal consumption under the idiotic guise of interstate commerce, they also now have a regulatory and prosecutorial green light for a wide range of individual behaviors under the commerce clause.

Like the tomatoes you grow for dinner. Or the bullets you make at home for your hunting rifle. Or the pictures you take of your wife that could be sold as pornography. Or… anything they damned well please.

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39Comments

  1. 1.

    Anderson

    June 6, 2005 at 4:10 pm

    The problem with your post is “now have,” since they’ve had this power for 60 years now, or however long since Wickard.

    Why should we now conclude that the sky is falling? Please advise.

  2. 2.

    John Cole

    June 6, 2005 at 4:27 pm

    I am not saying the sky is falling.

    I was, however, under the impression that over the past few years there had been some headway in the reduction of the impact of the 1942 ruling- you have heard of the gun free schools bit and the violence against women rulings?

    I am also aware of the fact that the ‘strict constructionists’ like Scalia have railed against this sort of ruling for years, but when it comes to something he doesn’t like, well, he can just contort himself and look the other way.

  3. 3.

    Tim F

    June 6, 2005 at 4:38 pm

    M. Scott Eiland pretty much had me dead to rights on this one. Before this ruling Thomas definitely seemed to me more Movement Conservative than small-c conservative. Don’t like him, but at least he stands where he stands.

    Scalia’s on a cultural jihad. Whether he keeps his Federalist Society card will say a lot about where that particular organization’s loyalties really stand.

  4. 4.

    Stormy70

    June 6, 2005 at 4:44 pm

    I like Thomas, not the rest.

  5. 5.

    Toren

    June 6, 2005 at 5:02 pm

    This additional precedent also places the Feds nicely to tax interstate commerce on the internet.
    The Wickard decision was dozing. This wakes it up with a vengeance.

  6. 6.

    ppgaz

    June 6, 2005 at 5:12 pm

    Well, it’s a little unncerving to hear supposedly rational people saying “I like this justice” or “I don’t like that justice.”

    People “like” or don’t like others who agree or disagree with them, respectively. Mostly.

    But since this a People Magazine take on justices …. I don’t like Thomas.

    Why? Simple. I have heard him speak on every occasion I’m aware of when a camera and microphone were present to capture the, uh, moment. The man is one of those people who walks into a room and sucks the life and energy right out of your body. I want to think he is as dumb as a board, although I can’t prove it. But he does a great imitation of somebody who is.

    Scalia, just to compare and contrast, is a person with whom I disagree on virtually every item of opinion that I can think of. I mean, I don’t think we’d choose the same anything in any situation of life. I’d say tomayto, and he’d say tomahto. Or vice versa. Or vice-a versa.

    But he’s a smart guy, and somebody you could have a rip-snorting conversation with. He’d engage and infuriate and entertain. There’s a mind at work in there. I could have a beer with the guy.

    Thomas? I wouldn’t want to share an elevator ride with him. He reminds me of the Grim Reaper without the cloak. He reminds me of Steven Wright, without the humor. Has the man ever had an original thought in his life?

  7. 7.

    JoshA

    June 6, 2005 at 5:18 pm

    I don’t like the ruling, as I find spending money to keep sick people from having medicine to be, well, sick. But I do have to say that this shows that the court does still have its principles. The liberals wound up supporting a stronger vision of federal government power, while the conservatives wanted to restrain it—even though the conservatives probably disapproved of the law on a personal basis while the liberals approved.

  8. 8.

    KC

    June 6, 2005 at 5:23 pm

    At the other post, I asked whether anyone expects there to be a larger national push to loosen drug laws to allow the use of medical marijuanna. We can all denounce this decision, but it clearly leaves it up to us to push Congress to act in a way that gives the states more say on this issue. Does anyone see either party pushing a bill to allow states to regulate the use of medical marijuanna?

  9. 9.

    Anderson

    June 6, 2005 at 5:30 pm

    I am also aware of the fact that the ‘strict constructionists’ like Scalia have railed against this sort of ruling for years, but when it comes to something he doesn’t like, well, he can just contort himself and look the other way.

    I’m just not persuaded that Scalia voted his way because he hates marijuana. If I’d expected him to follow his predilections, I’d have said he’d vote against Wickard. I think Scalia cares a LOT more about the Commerce Clause than about a few invalids passing the roach.

    That he didn’t, suggests that he may actually be voting on principle. On a 1st read, I found his concurrence quite plausible. Wickard looks odd on the facts, but legally, it’s always been very plausible, as Scalia’s analysis suggests.

    I was, however, under the impression that over the past few years there had been some headway in the reduction of the impact of the 1942 ruling- you have heard of the gun free schools bit and the violence against women rulings?

    Lopez involved a really clear attempt by Congress to jump the rails of the Commerce Clause. Morrison was, I think, less clearcut, but obviously threatened to blow the hatches off the CC. Today’s Scalia op is a better explanation of what’s wrong with Morrison than anything I recall from the original op (maybe because it’s shorter!).

    “Strict construction” of the CC is entirely compatible with Wickard and Raich, which is another reminder how little “strict constructionism” actually gets you.

    I am not saying the sky is falling.

    Okay, you strict constructionist, you. What you said:

    If the feds now have regulatory control over an obscure weed you grown in your yard for your own personal consumption under the idiotic guise of interstate commerce, they also now have a regulatory and prosecutorial green light for a wide range of individual behaviors under the commerce clause.

    Like the tomatoes you grow for dinner. Or the bullets you make at home for your hunting rifle. Or the pictures you take of your wife that could be sold as pornography. Or… anything they damned well please.

    I stand corrected!

    (I think the pix would be protected by the 1st Amendment, btw.)

  10. 10.

    Anderson

    June 6, 2005 at 5:31 pm

    Does anyone see either party pushing a bill to allow states to regulate the use of medical marijuanna?

    After daring to hope that Kerry would actually win, I ain’t predicting a damn thing.

  11. 11.

    John Cole

    June 6, 2005 at 5:40 pm

    Anderson- I think my overall point in the past few weeks of mocking the ‘strict constructionist’ line is there really is no such thing as a strict constructionist. I most assuredly would not be a strict constructionist- I would jump through all sorts of legal hoops and err on the side of limited government authority at every opportunity.

    And, I don’t think the sky is falling- they didn’t get rid of the democratic process.

    I do, however, find this ruling and Scalia’s decision to be flawed. You free to disagree and argue it is justified and reasonable.

  12. 12.

    SeesThroughIt

    June 6, 2005 at 5:51 pm

    “Does anyone see either party pushing a bill to allow states to regulate the use of medical marijuanna?”

    No, I can’t see that happening anytime soon. Any candidate who came forth with such an idea would instantly be clobbered by the other side, and then the hyperbole would kick in:

    “Candidate X wants to legalize all drugs!” “Candidate X thinks schools should distribute marijuana!” “Candidate X wants to replace your Bible and Constitution with bongs and roaches!” “Candidate X wants to sell you crack in a dark alley!”

    That said, I do think this is something that should be left up to states. Obviously there are several states with populations that favor medical marijuana–both blue states and red states. Let ’em have it–if they can make it work, great. If not, lesson (hopefully) learned.

    At any rate, this decision sucks all around.

  13. 13.

    KC

    June 6, 2005 at 6:06 pm

    This is definitely a case in which it’d be nice to see the partyline get bucked a little. After all, it seems like libertarian conservatives in Congress and left liberals in Congress could find some agreement on this issue and push a bill to allow states to regulate the use of medical marijuanna. Then again, it’s likely the Dem caucus would oppose a bill like this because they’d fear being beat over the head with the soft on crime label. Any Dem who pushed it would probably get knocked off his rocker by the rest of the caucus. On the other hand, I think conservative Christians would threaten hell and damnation on any Republican who pushed a bill loosening restrictions on medical marijuanna. Kind of sucks, really.

  14. 14.

    Libertine

    June 6, 2005 at 6:41 pm

    Yep this “conservative” court has allowed the beast known as the federal government get bigger and stronger. Federalism RIP…

  15. 15.

    Birkel

    June 6, 2005 at 6:41 pm

    The feds have had the power since 1938, I do believe. The SCOTUS confirmed the Congressional Power Grab to control wheat production in 1942. Thanks FDR! Thanks Keynes!

    /sarcasm

    And Lopez never took Wickard on headlong as some have suggested elsewhere. It was important only to the extent that the SCOTUS didn’t lay down, roll over and play dead like it had for the prior 52 years (1942-1995). The bill was reauthorized that same year with minimal changes and upheld at the trial court level. Cert. has, IIRC, been denied in the subsequent appeals challenging the re-worked bill.

  16. 16.

    S.W. Anderson

    June 6, 2005 at 7:12 pm

    I’ve expected this for a long time, so it comes as no surprise. All those well-meaning state referendums and legislative efforts are like little red wagons thrown in the path of an express train.

    Rational and humane medical marijuana policy (nonmedical marijuana policy too, for that matter) requires the American public to forsake ignorance and demagoguery for knowledge and somw rational weighing of risks, costs and potential benefits. Then, the public must prod those in Congress to do likewise, preferably showing some indication of having spines in the bargain.

    For decades this has proven too much for us.

  17. 17.

    physics geek

    June 6, 2005 at 7:25 pm

    “…they also now have a regulatory and prosecutorial green light for a wide range of individual behaviors under the commerce clause.”

    So what you’re saying is that today’s ruling changes nothing, right? I’m fairly certain that Congress believes that they can regulate every single aspect of your life, as they seem to do every day. SCOTUS merely affirmed that right once again. Bastards.

  18. 18.

    Jay

    June 6, 2005 at 7:33 pm

    John, did you even read Scalia’s opinion? It’s pretty fascinating. Sorry, but your conclusion that he based his ruling on “something he doesn’t like” is way off base.

  19. 19.

    John Cole

    June 6, 2005 at 7:36 pm

    I read Scalia, Thomas, and O’Connor’s..

  20. 20.

    DaveL

    June 6, 2005 at 8:55 pm

    The more I think about it, the more convinced I am that John is right about Scalia. It’s all well and good to say that Congress can do what is necessary and proper to regulate the national market in “legitimate” pharmaceuticals. But it simply doesn’t follow that Congress must therefore have the power to ban any substance that it doesn’t think is a legitimate pharmaceutical. I don’t see how you can reach Scalia’s conclusion without granting more deference to Congress’ view of its own authority than Scalia is generally willing to do.

    Personally, I deplore the federal statutes that this decision leaves intact, but I think it’s the right decision, precisely because the outer bounds of the commerce power are so slippery that case-by-case adjudication is an invitation to judicial game-playing. Better for the Court to butt out and leave it for the politicians, IMHO.

  21. 21.

    Nancy

    June 6, 2005 at 10:14 pm

    KC

    I would be interested to know if the libertarian conservatives in congress include any senators. Not arguing here, just that no one comes to mind.

  22. 22.

    Jay

    June 6, 2005 at 10:27 pm

    Then if you read it, how could you possibly arrive at the conclusion that he based his decision on “something he didn’t like”?

    It didn’t read like that at all, and his decision certainly was not “hypocritical” in light of other decisions.

  23. 23.

    Non-Fat Latte Liberal

    June 6, 2005 at 10:51 pm

    John,
    I find you objections odd:
    Like the tomatoes you grow for dinner. Or the bullets you make at home for your hunting rifle. Or the pictures you take of your wife that could be sold as pornography. Or… anything they damned well please.

    This is an objection that you could just as well make if the ruling were overturned, you would just be objecting to rights that the state govenment would have. It seems to me it miises the point. Or perhaps I’m the one missing the point…

  24. 24.

    jcricket

    June 7, 2005 at 12:22 am

    The idiotic war on drugs (and I’m no fan of drug users or dealers) is just one tiny facet. Just the tip of the iceberg in the GOP’s never ending push to control our entire social lives.

    You continually rail against “nanny” statism, well, your party is now trying to ban people from fertilizing and then discarding unused embryos. Science be damned!

    http://slate.msn.com/id/2120222/

    Yes, not just convince people not to do it, but pass laws, run congressional committees, publicly shame people (I’m sure that’s next).

    There’s not a single small government, libertarian bone left in the Republican party. The religious right are the malignant tumor you ignored for too long, and now it’s eaten your party alive.

    And as long as people like you are willing to live with the fucked up social agenda that the GOP pushes, they’ll continue to fuck up our countries future with their ass-backward theocractic bullshit.

  25. 25.

    Kimmitt

    June 7, 2005 at 12:33 am

    Scalia really, really hates recreational drug usage, and the rest of his legal reasoning often goes out the window when addressing it, in my opinion.

  26. 26.

    bago

    June 7, 2005 at 3:53 am

    Commerce, as defined by webster, the father of american english and a man who could defeat the devil in court.

    Main Entry: 1com

  27. 27.

    M. Simon

    June 7, 2005 at 3:59 am

    The purpose of the Interstate Commerce Clause was to fascilitate commerce not impede it.

    To read that clause to say as Wickard does that the government can limit commerce is nuts.

    But actually it was not Wickard which pissed in the pot. The change in doctrine happened in the 1870s when populists got the government to make anti-trust law. (any way I’m sure of the 1870s part).

    The current court seemed to be moving back to a more limited role for the Federal Government.

    ================

    Thomas may be dull in person and Scalia a scintilating wit who brightens every room he enters.

    No matter. I prefer Thomas’ originalist jurisprudence.

    Of course if we go down that road a lot of what the Feds do disappears.

    I think the vote was basically a jobs vote.

  28. 28.

    M. Simon

    June 7, 2005 at 4:09 am

    Non-Fat,

    The point is you couldchoose a state whose laws were most congenial.

    Now we have one size fits all.

  29. 29.

    Simon

    June 7, 2005 at 5:16 am

    Folks- my outrage over the SCOTUS ruling is not because it was about the fight on the idiotic war on drugs. This case was only on its surface about drugs. This is about federal overreach.

    Well this is rich. The courts overreach to effectively federalize a ban on drugs, and we grow incensed. But when the courts overreach to threaten federalized homosexual marriage and bans on free speech, we cheer.

    An integrity check is in order.

  30. 30.

    Dave Straub

    June 7, 2005 at 7:59 am

    Simon: But when the courts overreach to threaten federalized homosexual marriage and bans on free speech, we cheer.

    Who is this “we” of which you speak?

  31. 31.

    MunDane

    June 7, 2005 at 9:30 am

    The interstate commerce clause has been twisted all out of shape ever since WWII. The fact that this seems to try to sell us on the idea that “it is for the public good” seems very close to saying that the ends justify the means. Which is not the way that our court system is set up.

    But John has the measure of this. But if something grown, manufactured or otherwise made can fall under interstate commerce, then there is NO limit to that clause.

    Funny, I thought the Constitution was supposed to limit the powers of the nation-state, instead this essentially granted it unlimited powers.

  32. 32.

    Ben

    June 7, 2005 at 9:43 am

    Jcricket says “And as long as people like you are willing to live with the fucked up social agenda that the GOP pushes, they’ll continue to fuck up our countries future with their ass-backward theocractic bullshit”. Amen, brother.

    Simon,
    Atrocious analogy. For those of us that are libertarian style conservatives, marriage should be available to everyone… you know, that little thing called individual rights. Marriage is simply a civil ceremony and many legal entanglements bestowed upon 2 people. What the social conservatives are trying to do is apply their own religious doctorine to all marriages. And please, don’t start the bullshit of the 5000 year old institution that is the basis for society blah blah blah. You guys sound more like you are trying to convince yourselves of the “sancity” of marriages (or marriages) than anyone else. Marriage is about individual rights for EVERYONE… not federalizing homo marriage. Turn of PTL for a while.

    The difference between lib social policy (fma, med marijuana), is that they are optional for people use or not… the social conservatives want to force everyone to believe and behave exactly as they do.

  33. 33.

    Anderson

    June 7, 2005 at 10:13 am

    Bago, you’re confusing your Websters. And if dictionaries were all we needed to interpret the law, then not only would law school have been a lot shorter, but we would have had a lot fewer textbooks.

  34. 34.

    Supernatural Rabbit Scribe

    June 7, 2005 at 2:43 pm

    Scalia: “As the Court explains, marijuana that is grown at home and possessed for personal use is never more than an instant from the interstate market

  35. 35.

    Rachel

    June 7, 2005 at 2:44 pm

    this is an emotional issue. Only. I disagree with what SCOTUS said as well but I’m not so bitter over a Kerry loss that I blame this on neocons. Will y’all get over it and just look at the SCOTUS decision?
    If we want medicinal marjijana (sp) back, we’ll have to insist on our Represenatives to support it. After Schiavo, I believe that people could see this as an assault on them and changes could occur

  36. 36.

    Birkel

    June 8, 2005 at 11:37 am

    What’s fun to watch for me is this:
    The institutional framework that gives the federal government the Constitutional mandate to regulate nearly anything under the Commerce Clause was developed when Liberals believed they would maintain power forever. And armed with that power Liberals believed they’d do Good and Right in the world.

    But now the shoe will be on the other foot and it will be Republicans who have the power Dems garnered during and after FDR’s terms. And they will twist that power to their own ends for what they deem to be Good and Right.

    In sum, both sides should realize that what the Court has deemed Constitutional is capital ‘B’ Bad to effectuate. But what will actually happen is the federal government will continue to consolidate power and Dems will notice a bit too late that their efforts to consolidate their own power was a fool’s errand.

    Or something.

  37. 37.

    Kimmitt

    June 8, 2005 at 11:08 pm

    Well, we certainly noticed that y’all dropped the States’ Rights rhetoric as soon as it was inconvenient. But then, we already know that there is no principle other than power at the heart of the Republican Party, don’t we?

Comments are closed.

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  1. UNCoRRELATED says:
    June 6, 2005 at 6:53 pm

    Still batting 1000

    The Supreme Court announced today that federal law may indeed be used to persecute sick people whose doctors prescribe marijuana, ruling that state laws don’t provide a shield from federal law.

  2. The Phnom Penh says:
    June 7, 2005 at 1:09 am

    Hee hee

    I think it’s a bad decision mostly because I think US drug policy is insane. The major beneficiaries of that policy are the drug dealers, whose profits are massively inflated as a result, and law enforcement, whose drug budget is truly enormous.

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