Before it disappears down the memory hole, I wanted to say my piece on the Supreme Court’s recent decision in Gonzalez v. Raich. Disclosure: I’ve never used marijuana or any other recreational drug other than alcohol, caffeine, or nicotine. I can see perfectly good arguments in favor of legalizing the recreational use of marijuana. I can see perfectly good arguments for prohibiting the recreational use of marijuana.
The decision doesn’t surprise me in the slightest. In a very real sense this case was already argued and decided more than 60 years ago before either I or most of you were born in Wickard v. Filburn. That’s why I’ve been ranting for more than 30 years about Wickard v. Filburn since it’s my belief that it was the last nail in the coffin of government by enumerated powers. When something not offered for sale at all let alone interstate sale can be construed as falling within the Congress’s powers under the commerce clause, what can’t be construed as falling within those powers?
I’ve heard libertarian arguments on why the Court should have rejected the federal government’s argument; I’ve heard federalist arguments on why the Court should have rejected the federal government’s argument; I’ve heard appeals to mercy on why the Court should have rejected the federal government’s argument. I would hope that their decision in Gonzalez v. Raich would lay the idea that the current Court is either a libertarian court or a federalist court.
My impression of this Court is that they’re a hobby-horse Court. There are things that they’re interested in and on behalf of those they’re willing to overturn years of settled law to make things turn out their way. Sexual libertarianism, yes. Commerce, no. They’re not interested in commerce and won’t overturn settled law but are willing to go to rather substantial lengths to defer to Congress in matters of the regulation of commerce.
I suppose that out there somewhere there are a few virtuous souls for whom this case was really about the medical use of marijuana. I have a question for them: if the cultivation of marijuana for medical use only should be allowed how can you tell and how can it be enforced? My remaining words are addressed to the remainder (probably 99.9% of the blogosphere) who either want to get high legally or think that others should be able to do so without fear of arrest.
Fair enough. Go through the Congress. Whether your concern is a libertarian one or a federalist one or even mercy or the general welfare, go through the Congress. The whims of a tyrant whether an autocrat or a judicial tyrant are too unreliable for exploitation in this way. Everyone except perhaps the tyrant will ultimately be dissatisfied at the outcome when you harness tyranny to achieve your ends.
I agree that Wickard was a stretch but it falls in a line of cases that dramatically expanded the federal power over commerce. I think it also was responsive to a specific time and place in US history. I did not agree with the reasoning of the court when I first read it years ago and I still don’t.
Go through Congress? How? The lobbies of law enforcement will be even more effective than the teachers union when it comes to preventing change. You think mere popular sentiment can budge such a powerful interest group? Think again.
Alan, have you written to your Congressional representative? Attended a political meeting? Met with your Congress-critter? Sent letters to your neighbors? Run for office yourself?
In a representative democracy you have a right to work to convince other people that your position is right and to organize to promote it and try and elect representatives that will vote that way. You don’t have a right to get your way.