Comment by bsimpson

I think the issue is this isn't seen by politicians as a motivating vote driver. It is, however, a motivation for someone to go out and vote against a politician.

That's ultimately what keeps things like MJ illegal. There are just far too many people that will get upset about it if it were made federally legal.

My state, Idaho, has one such politician that is constantly bringing up and trying to find ways to keep the wacky tabacy out of the state. Including trying to amend the state constitution for it. He does this because he's mormon and the mormons are scared of the devil's lettuce.

I don't even smoke - it just offends me deeply to see the Supreme Court rule in a direction that's so blatantly against the Constitution.

You’re probably right, though I dread the possibility. I cannot stand the smell, and one of the best things about moving from California to Texas was avoiding that pervasive smell being everywhere. Negative externalities of personal behavior really need to be handled better in our society. If you want pot to be legal, fine, but only inside your own personal enclosed house.

It's been popular (with over 50% popular support) for the last decade though. The major opponents are the alcohol industry, big pharma and the prison industrial complex. Their lobbying efforts are too powerful. We (the people) don't stand a chance.

Circuit courts may not overrule Supreme Court precedent. Accordingly, this decision purports to rest on the “Necessary and Proper” clause, avoiding Wickard (decided on commerce clause grounds)

There's a lot of context (behind Wickard v Filburn) which would obviously not apply to anyone distilling for personal consumption:

https://en.wikipedia.org/wiki/Wickard_v._Filburn

You have identified a root perversion. Roscoe Filburn’s wheat did not leave Ohio or even his farm. He didn’t offer it for sale; the wheat was for his own use. It was deemed to “affect interstate commerce” and thus within the scope of the interstate commerce clause. With that, a provision intended to remove power of states to tax each other’s goods and services and promote a free trade zone instead became a mechanism to nitpick and micromanage every last little detail, ossify existing practice, protect large players, give loopholes to the politically connected, and enable mass regulatory capture. It cannot be overturned quickly enough.

https://supreme.justia.com/cases/federal/us/317/111/

That would also invalidate the civil rights act, as the (similar) 19th century CRA was already struck down because the 14th amendment binds against discrimination by public not private actors. The reason why the modern CRAs weren't also struck is because they rested on the laurels of Wickard v Filburn declaring the CRA (this time) is about regulating "interstate" commerce.

You say that like interstate commerce regulation was more egregious for wheat than it was for marijuana.

But Raich is significantly more egregious: the theory on which the government won Wickard v. Filburn, that private consumption of wheat could affect the interstate market for wheat, doesn't even apply, because there can be no interstate market in a substance that is illegal to trade.

Thank you for your work here. Overcoming the argument that a threat of prosecution doesn't create standing is a huge advancement for the cause of freedom-- in light of Babbitt the state never should have been arguing otherwise nor should the lower court have ruled that way but they were and that line of argument is protecting a lot of facially unconstitutional law.

These treaties are ancient and mostly irrelevant, especially outside the topic of hard drugs. Unless you're doing harm to the other nations, no one will do anything.

This paper is all the way from 2012. Since its publication, many countries have pushed the limits to far greater lengths than what it talks about. Canada remains a signatory to all the old 60s-80s treaties about drugs, but can you guess what the consequences were when we legalized cannabis in spite of all of them? No one cares about these.

Treaties can't legally do an end-run around the limits prescribed to the government in the Constitution.

It's not about decriminalizing marijuana - it's about the absurd assertion that the federal government can regulate what you do personally because "yadda yadda yadda…interstate commerce!"

That's arguing around the point.

If the law is broken, fix the law. Don't pervert logic to pretend that the existing law dictates what you want is correct.

If Roe v Wade is based on faulty logic, cool - overturn it. But it then becomes Congress's responsibility to replace it with the correct version.

The federal government isn't supposed to police people's personal behavior. "Federal" comes from "federation" as in, the group of states in the union. It's the job of the legislature to write the laws, the job of the judiciary to interpret the laws, and the job of the states to do these things for areas that don't rise to the level enumerated in the Constitution.

When you get it twisted, you end up with this tug-of-war where corrupt politicians try to put biased judges on the bench to mold the rules to their whims without actually having to pass them.

If anyone considers that outcome to be strange - that's how most things are supposed to be regulated. It's doubly specified in the wording of the constitution and 10A.

If one takes the opinion interstate commerce means buying, selling and transporting.

It's also how the current system works. Most drug convictions are based on state law. Federal drug prosecutions are 2% of the total. Every state has its version of controlled substances act.

Nothing much would change at all.

It will be an interesting next decade or two on this topic. The federal government increased its power in part to coerce States to end Jim Crow, to broaden personal liberty (like with Roe v. Wade), establish a social safety net, and set minimum environmental protection standards. If we keep seeing federal power being used to compel a reduction in liberalism among the States, the sides supporting "state rights" seem likely to switch.

Adding to that, if the supreme court continues to make realistic federal administration harder by tearing down executive rule making authority and requiring more explicit Congressional rule making (which can't scale in our current system), we'll continue to see less stable and predictable federal regulatory actions - which might further compel the states to step in...

But where will States raise the taxes to make this happen? While the federal government seems willing to do less (in terms of classic liberalism policies), it certainly isn't reducing its spending.

And how will States defend themselves from federal intrusion if they do start to claim more of their power - will we see armed stand-offs between national and state forces?

We’ve already seen states try and regulate outside their borders; TX with abortion as one example. How does a weaker federal government protect against this, or do you believe it should not? And how does this not devolve into 50 fiefdoms?

The interstate commerce clause is just craziness. It touches everything and gives justification to regulate nearly anything.

> Another case based on interstate commerce: the US ban on racial segregation.

Specifically the federal ban on private segregation. The states would still be able to ban it.

Moreover, is that the sort of thing you even want as an ordinary statute dangling precariously off of the commerce clause instead of making it a constitutional amendment to begin with?

I wouldn't be surprised if this one unironically goes given that Uber/Lyft are fully doing "women only" ride shares now.

Gen Z / Alpha have embraced X-"realism" and fully accept essentialism/reject "intersectionality". They're far more conservative/prudish than millennials, even at their young age.

It's possible that the government thought that if they did try to challenge the Commerce Clause analysis, then the Supreme Court could have struck down Filburn. They'd much rather lose narrowly on this specific case than have Filburn reversed entirely.

That seems like a pretty over-reaching interpretation. It makes sense in the context (needing to support federal economic control during WW2). But in some sense the economy is a dynamic system that touches and is touched by almost every decision we make. I made a pot of coffee this morning, should the federal government have the ability to decide whether or not I’m damaging the cafe market by not supporting my local cafe?

> The problem is if you say the government can’t regulate MJ, then all drug regulations fall apart.

No, that's not what's being said. If you grow your own plant for personal use, there's no need for the federal government to be involved. If you grow that plant and then try to sell it, then there's some commerce which does fall under some regulation (we'll leave the interstate nuances aside). Having the fed being allowed to say you cannot grow in your house is one step away from saying you are only allowed to perform missionary position (no other positions are allowed) between the hours of 7-8pm, but not at all on Sunday.

I believe the original idea of the Constitution was that most things would be regulated at the state level.

This is pretty much already the case with marijuana, where it's illegal at the federal level, but in practice if it's legal in your state then it's legal.

> I’d be concerned about Billy selling homemade GPLs or whatever.

Would it be better with a BSD license?

It uses the phrase “regulate commerce between the states” which effectively has the same meaning.