[Rockingham]

The commerce clause is a more complicated issue than many conservatives realize or are willing to accept. Oddly, marijuana advocates are some of the most rabid as to federal commerce clause even though, as a group, they are not conservatives or natural or reliable allies for conservatives.

In essence, beginning in the late 19th Century and through the 1920's, federal courts -- composed mostly of Republican appointees -- expanded the reach of the commerce clause as they decided cases involving federal laws that promoted and protected interstate commerce. Railroads and telegraph companies lead this trend, often by seeking to overturn local and state laws that attempted to regulate their operations.

Then in the 1930's, for the sake of the New Deal, federal courts -- now with mostly Democratic appointees -- relied on those precedents from business disputes to expand the commerce clause as a basis for federal power to regulate the entire economy.

My take on the matter is that there is no going back to some Edenic era of constitutional law in which limitations on the commerce clause restrained federal power. At best, federal and state interests might be better balanced and an irreducible core of exclusive state authority reestablished. This could probably be done through revising the federal preemption doctrines that were developed in the 1940's and after to supplant the "dual federalism" approach.

Of course, that would not satisfy marijuana advocates because effective suppression of marijuana cultivation and sale in interstate commerce necessarily requires its suppression in intrastate commerce. No matter how energetic and ingenious, arguments to the contrary from lifestyle libertarians are wrong on the facts.

Fundamentally, conservatives (and economic libertarians) should aim at new political and legal arguments and doctrines that limit federal power. The commerce clause is a weak and broken levee against the great torrent of public expectations that long ago mobilized federal law, tax power, and cash toward national purposes great and small.

Over the next generation though, there will be a slow motion federal bankruptcy due to the massive generational and structural deficit caused by low native birth rates and excessive federal benefits promised to the baby boom generation. The impending painful adjustment can be used to definitively discredit and prune back federal power -- but only if we adapt ourselves to the times instead of missing opportunities by trying to re-fight commerce clause battles that our great-grandparents lost.

[inquest]

The commerce clause is a more complicated issue than many conservatives realize or are willing to accept.

The commerce clause itself isn't that complicated. It's the courts that have misrepresented it as being far more complicated than it needs to be. Recognition of that fundamental fact has to be the basis for any further discussion on the issue.

[steve-b]

effective suppression of marijuana cultivation and sale in interstate commerce necessarily requires its suppression in intrastate commerce

Even if that were true, it is simply not relevant. To illustrate by analogy: If I'm hired to secure an office building against vandalism and graffiti, I can argue that I can't effectively do it unless I'm allowed to go into the surrounding community and suppress criminality in the area generally -- but that's just too bad, because my authority is still limited to the property of the guy who hired me.