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.
Reason magazine is a waste of paper. And I’m tired of Libertarian Party hacks hijacking Free Republic. These people would happily encourage the spread of hard drugs and prostition, and then laugh while our cities burned. Just like Democrats.
“This is one of those facts that some find inconvenient.”
Al Gore lectured us on “inconvient” facts too. How appropriate that Libertarians are aping him...
“If you are a federalist you want to overturn RvW and let the states decide. If you want abortion outlawed by any means possible then you are the same as the Democrats who want it legal by any means possible.”
Sure, and while we’re at it, lets let the states decide whether or not they’ll prosecute murder, rape, theft, and vandalism. Local community standards and all....
Libertarians aren’t for freedom. They’re for anarchy. They’re no better than those Black Bloq punks yelling “F*cking Pigs! Burn it all down!”.
Freedom CAN NOT EXIST for long without a basic framework of social order.
Let's see ... dissent ... that means Thomas was in the minority ... meaning his side lost. Why are you citing losers?
Cite the winners. Cite Scalia's separate opinion - now there's an opinion worth reading. I should frame it, it's that good.
"there is no activity whatsoever which does not fall under the Commerce Clause"
Fine. Then list for me all the interstate commerce that Congress cannot regulate. Or should not regulate.
Now, point out to me the part of the Commerce Clause that authorizes your limitation. There is none. There is no limitation.
None of that was my point but I’m guessing the point you are making is that you are against what is called federalism.
“None of that was my point”
And you’re missing the so-called big picture. Advocate for personal freedom all you want. It’s good to, and you should, but realize the federalism is simply a good model of government, but it’s not a panacea.
The mistake Libertarians make is the same mistake that liberals make....if there were simply no rules at all about personal conduct, the world would be a better place and everyone would be happy. But they’re wrong because that view presupposes that man is inherently good. He is not. Man, left unchecked by at least basic rules of social conduct would proceed to destroy himself and everyone around him.
There’s a damn good reason that civilization has imposed basic moral rules, from the local all the way to the national level, since there’s BEEN a civilization; take those rules away, and chaos, war, and disease is the result.
The libertarian argument is that hey, let states do whatever they want AT ALL. The idea is that if, say, California makes heroin legal, then if their are negative consequences, they’ll be limited to California. Wrong. Like all plagues, they’ll cross borders, even to places that opposed those policies. Arizonans, Oregonians, and Nevadans would suffer for the stupidity of Californians.
Federalism is a fine system, but there are some human flaws that transcend states, and should be national policy. Government should have a minimum involvement in these matters, but they should have an involvement.
Libertarians are always claiming that they’re the true inheritors of the Founders. Please. These same people would have been bitching and moaning about the creation of the postal service and the Louisiana Purchase. The Founders were responsible for those too. The Founders were for minimal government involvement in our lives, not the complete absence of it.
I have two qualms with this line of thought. First, you appear to be advocating for an elimination of states altogether in favor of singular national policy. Is this correct? After all, states often make decisions that affect their neighbors (gambling comes immediately to mind). In your world, why should we allow this?
Second, why do you assume that California would continue to allow such conduct if it indeed had significant negative consequences? I think you have to make the basic assumption that people are rational and will make decisions that further their own best interest. But you don't assume this--you assume that people will make stupid decisions and continue to abide by stupid decisions that have negative consequences on their own well being. I don't buy this.
but there are some human flaws that transcend states, and should be national policy.
Why do you assume that the same flaws--if they "transcend" states, are magically solved on the federal level? Is not the federal government run by human beings? If they are truly human flaws, as you suggest, then humans at the federal level are no less immune to these flaws (whatever they may be) than human beings at the state level. While I agree that there are some flaws in the system that tend to favor resolution at a federal level (mostly problems with lack of cooperation between states), these are not human flaws, as you suggested. What you are arguing is that human beings in the federal government are somehow less apt to make flawed policy than human beings in state government. That is just incredibly lame.
"-- You can be a federalist, or you can be an ardent drug warrior. But you can't be both. --"
Or, if you are an advocate of goverment control at all levels, fed/state/local - you can claim to be both without turning a hair.
Microgood:
You cannot believe Raich was a correct ruling and be a federalist, as Thomas correctly points out in his dissent.
Thomas assumes rationality. Whereas most control FReekers irrationally content that government prohibitions are good 'for society'
He rightly states that if Raich stands, there is no activity whatsoever which does not fall under the Commerce Clause, voiding federalism entirely.
Truly among the worst rulings in the history of the courts, but at least Thomas got it right.
Quite true. Thomas is shaping up as one of our great champions of individual liberty.
And as we see his opponents are getting frantic with their empty charges about 'losers', -- along with pitiful claims that the power delegated to encourage free commerce, - by regulating it among the States, -- somehow includes the power to prohibit trade [in arms for example].
Congress cannot prohibit trade among the several states. Our States are not at war with Congress. -- Although Congress, [and the people here who support unlimited government control] sure seem to be at war with We the People.
Ahem. That is exactly the way it is now.
We have that Constitutional framework. And both major political parties are very busy ignoring the document.
Libertarians aren't for freedom. They're for anarchy.
Total bull; - libertarian philosophy supports & defends the Constitution as written. [except for the income tax mess].
I think what he meant is what should happen if a state “legalized” rape, or say the murder of any left handed person or something. Personally, I don’t reckon that any substance abuse/use violates anyone else’s inalienable rights.
Freegards
Why must it?
Correct, -- and unless anyone else's rights are violated, legislators are not constitutionally empowered to write laws 'regulating' substance abuse/use.
This constitutional principle is enumerated in the 9th, 10th, and 14th amendments, plain to see.
There are those who cannot see. - Drug warriors.
I am sorry, I don’t understand your question.
Freegards
Yup. As far as I can see there’s whole bunches of laws that are just there to make folks “feel” better about whatever those laws deal with. The law should exist to protect our inalienable rights.
Freegards
Why must drug use violate someone else's inalienable rights before it can be made illegal?
Our laws are not limited to activities that harm others. Why should our drug laws have to meet this "standard"?
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