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Posted on 09/12/2007 10:18:48 AM PDT by JTN
Sen. Barack Obama (D-Ill.) recently said that, if elected president, he would end the federal raids on marijuana clinics in states that have legalized the drug for medical purposes.
That makes the Democratic field unanimous now — all would end the raids and allow the states to craft their own medical marijuana policy, free from federal interference. By contrast, just two of the remaining GOP candidates — Rep. Ron Paul (Texas) and Rep. Tom Tancredo (Colo.) — and none of the front-runners have promised to call off the raids.
This is unfortunate for a party that once fancied itself the torch-bearer for federalism — the idea that most laws should be made on as local a level as possible, both to encourage state “laboratories of democracy” to experiment with different policies and to allow people to utilize the freedom of movement to choose to live in those jurisdictions with laws that best reflect their own values.
If ever there were an issue for which federalism would seem to be an ideal solution, it’s the medical marijuana issue, which touches on crime, medical policy, privacy and individual freedom — all the sorts of values-laden areas of public policy that states are best equipped to deal with on a case-by-case basis, and for which a one-size-fits-all federal policy seems particularly clunky and ill-suited.
Yet the GOP won’t let go. The White House continues to send federal SWAT teams into convalescent centers, dispensaries and treatment centers, often putting sick people on the receiving end of paramilitary tactics, gun barrels and terrifying raids.
It’s difficult to understand how the same party that (correctly, in my view) argues that the federal government has no business telling the states how they should regulate their businesses, set their speed limits, keep their air and water free of pollution or regulate the sale of firearms within their borders can at the same time feel that the federal government can and should tell states that they aren’t allowed to let sick people obtain relief wherever they might find it.
Medical marijuana is probably a nonstarter politically.
Though polls show most Americans support medical marijuana, few decide their votes on the issue, save for a cadre of drug reform activists and the people who actually need the stuff to treat their symptoms.
But the issue ought to be of wider concern to principled federalists, because it was the GOP’s stubborn support for near-limitless federal power to fight the drug war that killed the nascent federalism revolution before it ever grew wings.
That short-lived revolution began in 1995, when the William Rehnquist-led Supreme Court ruled in U.S. v. Lopez that Congress had no constitutional authority to regulate the sale of guns near schools, then again in 2000 with U.S. v. Morrison, which struck down the 1994 federal Violence Against Women Act.
Those two cases ended 60 years of Supreme Court deference to Capitol Hill on the issue of whether the Constitution actually permitted the Congress to enact the laws it was passing. Some legal scholars thought it possible that the court might look for an opportunity to overturn Wickard v. Filburn, the notorious 1942 ruling which said that under the Interstate Commerce Clause, Congress can regulate the wheat a man grows on his own land for his own use.
That opportunity came in Gonzales v. Raich, in which the Bush administration argued that the commerce clause allows the federal government to prohibit marijuana grown in one’s own home for one’s own use, even for medical treatment, even in states that had legalized the drug for that purpose. The Supreme Court upheld the government’s right to prohibit marijuana, even under these limited circumstances.
The court’s left wing was joined by Justices Anthony M. Kennedy and Antonin Scalia — who had formed the federalist majority in Lopez and Morrison — to uphold the federal supremacy of the Controlled Substances Act when it conflicts with state law. Justice John Paul Stevens’ majority opinion cited Filburn as the controlling case law. The court’s principled federalists — Clarence Thomas, Sandra Day O’Connor and Rehnquist — wrote in dissent.
The Washington Post explained in an editorial a few weeks later how Raich was about much more than medical marijuana. It was about the proper scope and the defining limits of the federal government. The editorial was one of support for a recent federal ruling upholding the Environmental Protection Agency’s decision to halt a construction project due to an endangered cave-dwelling bug native only to Texas that was found on the planned construction site.
Had Raich gone the other way, the Post noted, the EPA likely wouldn’t have been able to prevent a hospital from being built in order to save the insect. The Post thought this was a glorious benefit from the Raich decision.
I suspect most Republicans feel otherwise.
Raich represented the last chance to rein in a Congress that sees no constitutional limits whatsoever on the reach and breadth of its power. It was GOP devotion to the drug war that subverted it, killing the Rehnquist federalism revolution in its infancy, narrowly limiting Lopez and Morrison and freeing the Congress to legislate wherever it pleases, with little or no constitutional constraints.
Over the past few months, former New York City Mayor Rudy Giuliani and former Tennessee Sen. Fred Thompson have tried to position themselves as the standard-bearers for federalism. The Los Angeles Times’ Ron Brownstein recently praised Giuliani’s federalist approach to contentious social issues like gun control, gay rights, health care and abortion. Thompson has written several columns touting local control over the past few months.
But Giuliani has spent most of his career advocating for more federal power to fight the federal war on drugs. He has declared that he would continue the Drug Enforcement Administration raids on medical marijuana facilities, overruling state law.
Thompson is the only candidate yet to take a public position on the raids. While he’s right to note his impressive pro-federalist voting record in the Senate, he also voted for a number of bills strengthening the federal war on drugs.
And while Thompson’s campaign essays rightly decry the federalization of crime and the soaring U.S. prison population, they’re curiously silent on the war on drugs — a leading cause of both of these troubling trends. Thompson’s campaign did not respond to inquiries about his position on the DEA raids for this article.
Giuliani and Thompson claim they want to reinvigorate discussion of the virtues of federalism. Terrific. But you can’t argue that states should be free to make their own policies without federal interference — except when you happen to disagree with them. You can be a federalist, or you can be an ardent drug warrior. But you can’t be both.
Radley Balko is a senior editor for Reason magazine.
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Either you believe in federalism, or you don’t.
This is one of the issues that separates those who talk the talk from those who walk the walk.
What hangnail?
Why don’t you take your crazy, racist rantings elsewhere?
So what? Investing in the "munchie market" and becoming a rich man while slapping down centralist authoritarianism is a bad thing?
Actually they're exactly the same. They both deal with issues in the 'ordinary course of affairs, concern the lives, liberties, and properties of the people'. Just as there should be no law for murder at the federal level or 95% of the other things the federal government thinks is its business. This is an issue for the separate and sovereign states.
I bet Thompson would can them.
Dane has been around the last few days too. Perhaps he'd like to join the fun.
So you’re point is that the whole concept of a federal crime is unconstitutional. A strong case could be made for that and it would work so long as it was applied uniformly.
Libertarian ping! To be added or removed from my ping list freepmail me or post a message here.
That was the biggest lie he ever told. Anyone who can still--with a straight face--call Bush a conservative is hopelessly clueless.
He's probably gonna be the next President, so pray you're right.
That would be nice, but I certainly wouldn't count on it. As the article says, "Thompson is the only candidate yet to take a public position on the raids. While he’s right to note his impressive pro-federalist voting record in the Senate, he also voted for a number of bills strengthening the federal war on drugs.
"And while Thompson’s campaign essays rightly decry the federalization of crime and the soaring U.S. prison population, they’re curiously silent on the war on drugs — a leading cause of both of these troubling trends. Thompson’s campaign did not respond to inquiries about his position on the DEA raids for this article."
I worked on some of Ron Paul's early campaigns. I'd never vote for him for president and I'd rather see someone like Chris Peden in his congressional seat.
No kidding. Although Bush out and out lying is not shocking anymore....
I thought Dopers would know you as “Tommy The Ineffectual”
Drugs can also make you forget to capitalize.
Are you stoned right now?
Not really. He still supports enforcement of the unconstitutional federal drug laws for all except those certain individuals who have bought and paid for state permission to use marijuana.
To me that's a really convoluted position to take, entangling many different issues into a sort of conundrum from which a consistent position on federalism could never escape.
Something tells me that either Osa<-bama (dang I always get that wrong) or Roody would jump at the chance to sign a bill into federal law to override some or all states' shall issue carry permit laws.
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