Do this one next:
https://en.wikipedia.org/wiki/Gonzales_v._Raich
The Supreme Court somehow held that the feds can regulate what you do in your own home (in this case, growing marijuana for personal use) because it could have a butterfly effect on the interstate price. (Constitutionally, the feds can only regulate _interstate_ commerce.)
I think much more likely is that it will just be made legal federally sometime in the next decade. Marijuana legalization has majorities across ideologies (https://news.gallup.com/poll/514007/grassroots-support-legal...) and even though the inability to create federal law on something so popular seems like a good case study on how the US system doesn't always do a good job representing it's actual people, it seems to be at a critical mass where it can't be ignored for much longer. Even my parents' friends who are conservative have started doing weed.
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.
This gets at something I think a lot of people don't really understand. They see polls that show strong support for policy X, and then complain that politicians don't enact it. What they fail to consider is that while a strong majority may be in favor of the policy, it's not the top (or top 3) priority, and they will support candidates that have the opposite position on X, if they support their top priority.
This is situation where well thought out (and moderately constrained) referendum process can help achieve the majority desire for a policy that would not otherwise be considered important enough to drive the selection of representatives.
Yeah, that's essentially what happened here in Oregon.
And the 2nd chapter of it is after the ballot measure passed, the state liquor commission drug its heels for a couple years, because most of their executives are far more conservative than the median voter here (a side effect of a lot of them being Salem locals vs Portland, but anyhow).
Eventually the state legislature got fed up with the obstructionism and passed a "ok, we're just doing it how CO did, stop stalling" bill.
And here we are. The sky didn't fall.
There's a lotta ways ballot measures can go into stupidity, but this is an instance where it helped force the bureaucracy to align with the majority voter position.
>(a side effect of a lot of them being Salem locals vs Portland, but anyhow).
Because their industry is in bed with government so their priority #1 is coordinating with the people of that industry. The actual "value producing" activity of buying, distributing, selling liquor and managing those relationships is a sideshow.
You see this in every deeply regulated industry.
> They see polls that show strong support for policy X
i would imagine those polls are full of selection bias - even if the poller is trying to be as neutral as possible. People who would agree to participate in polls tend to have strong(er) feelings than those who don't.
> referendum process
instead of referendums, there should be a representative vote by the elected politician, but with an option for the voter to submit their own vote (provided they pass a cursory examination that certifies they have read and understood the bill they're voting for).
E.g., a senator or an elected politician has N number of votes for a bill, where N is the number of people he/she represents. If those people don't want to participate in a bill voting process, the politician will vote on behalf of them (like they do now, supposedly).
However, an individual voter who wishes to, can certify their understanding of said bill, and rescind the representative vote for his electorate and vote himself directly on the bill. The politician will now have N-1 votes on that same bill.
This means for issues of importance, the individual can choose to participate. For issues that they don't care about, but have a vague sense of direction, they have their votes delegated to the politician that they elected once every X years.
Also it doesn’t matter if there’s majority support for a lot of things because most people don’t vote. If you want to get a policy enacted make sure you and your friends vote in elections regularly.
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You should argue with him he's acting like Satan. The mormons (I used to be one) say that Satan wanted to force everyone to be good, Jesus wanted each person to have free will and choose.
that's actually a pretty cool take!
here's mine if you have a use for it. https://archiveofourown.org/works/65636176?view_full_work=tr...
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I personally would be okay with having it legal if smoking could still be banned in multifamily complexes. I don't care if my neighbors are using edibles, but since I know that legalized weed means more smoke coming from my neighbors' balconies, I will always vote "No" when marijuana legalization is on the ballot in my location.
Voting to put people in prison because of smells is certainly a take.
It's not about the smell. Secondhand marijuana smoke carries many of the same harmful compounds as cigarette smoke [1]. The issue is involuntary exposure in shared living spaces. And ballot measures are typically all-or-nothing: you can't vote yes on edibles but no on smoking in your apartment complex.
[1] https://www.cdc.gov/cannabis/health-effects/secondhand-smoke...
I get that fucking smell everywhere now even while it's still illegal.
Can smoking tobacco be banned in multifamily complexes currently? I'd think the policy would be the same.
HOAs tend to manage this kind of thing
Lol, yes, subsidiarity.
HOAs, the lowest level of US government.
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You've made about a dozen comments in this thread and they've escalated from "HOAs are unconstitutional" to "I'd rather shoot my fellow citizens than be drafted if weed isn't legal" to "driving high is fine, I've done it for decades." Each one a little more unhinged than the last, which is an accomplishment given where it started.
It reads less like a coherent political philosophy and more like someone who's been hitting the sacrament a little too hard this morning.
I smoke your "sacrament" daily, and cigarettes, and I'm terrified that people will think you're representative of either of those classes, or even a minority of them.
Most people in this thread broadly agree with you that marijuana should be legal. You're somehow picking fights with your own allies because they had the audacity to say they don't like the smell, or that driving impaired is bad. You're not defending freedom, you're being contrarian and hostile to anyone who doesn't arrive at your exact position with your exact intensity.
And the driving thing isn't a matter of opinion. "I've done it for decades and never caused an accident" is the exact argument every drunk driver makes right up until they do. Your anecdotal survival is not evidence of safety.
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Until we start throwing cigar, pipe, and cigarette smokers in prison for smoking where I can smell it, I'm totally okay smelling some pot. The playing field needs to be leveled.
I don’t want my toddler exposed to secondhand pot smoke. Unfortunately it’s more common than secondhand cigarette smoke in my experience. I wouldn’t get upset on my own behalf but he’s too young to choose and it’s my responsibility to act in his behalf as much as I can.
Yep it's more distinctive, more intrusive, spreads further, smells worse.
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VOCs and carcinogens are a health hazard. Asthma, kids development, allergies, and occasional migraine trigger.
It’s not random we call it ‘dank’ or ‘skunk’ and if it’s good it should piss off your neighbours.
It’s 2026. Dry flower vapes get you higher, with less product, and sparing the lungs. They have a smell more in line with popcorn than a cigarette. They come in everything from one-hitter to portable-volcano. Fans exist too.
> VOCs and carcinogens are a health hazard. Asthma, kids development, allergies, and occasional migraine trigger.
This is the foundational reasoning for making perfume, air fresheners, deodorant, and scented cleaning supplies illegal to possess or use.
Frankly, as an asthmatic I'd be 100% onboard with everything. There are plenty of scent free deodorants that work just fine, btw.
Fair enough. Banning VOCs and carcinogens would also make barbecues illegal, or really the Maillard reaction in general though.
There’s a difference between something inherent to a process, and something added for basically for marketing reasons that has minimal/no positive effect in actual functionality.
> Dry flower vapes get you higher, with less product, and sparing the lungs.
This may be subjective as I have tried just about every dry vape out there and each time the high is underwhelming. For me, the traditional bong hit is king.
I don't think it's unreasonable to desire to be free from the noxious odors of others.
> The right to waft my smells in any direction ends where your nose begins.
- Abraham Lincoln or Ben Franklin or Mark Twain or someone
It's not just because marijuana "smells bad". Secondhand marijuana smoke contains many of the same toxic chemicals as secondhand cigarette smoke and likely is similarly deleterious to your health [1]. I also believe everyone should have the right to be able to open their windows and have clean air come through. Smoking on balconies denies people this right. Edibles only effect the user and therefore should be permitted.
[1] https://www.cdc.gov/cannabis/health-effects/secondhand-smoke...
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It doesn't have to be criminally illegal. Instead it could simply be civil. The apartment complex, which you do not own, would be the ones setting the rules here.
And you, of your own free choice, would have the choice to either follow the rules or go live somewhere else. The person you are responding to doesn't have an issue with you smoking in your own purchased home. Instead this was about apartment complexes.
And it wouldn't even have to be a law applied to you. It could be applied to the apartment complex. Apartment complexes already have to follow lots of laws. So they could simply be required to have this as a rule.
And then you, could make your libertarian choice to live there or not. Its not your apartment complex after all. And since its someone else property, they would absolutely have the free to make you not do this in their own property.
If the apartment owner wants to set his own rules that's fine. It is completely in accord with the principles of free association that a landlord can decide who he wants in his building. When it's forced by government decree to be one way or the other however then it becomes tyranny.
Why shouldn't there be an apartment block that is nothing but weed smokers, and others that are cigarette smokers, some that are both, and some that are neither, in accordance with each tenant and landlord's personal desires? That's what freedom looks like.
If laws were made for instance that a landlord couldn't change from one status to the other (smoking<>non-smoking or vice versa) without a significant notice period, to give people time to move if needed, that would be completely fair.
Strongarming people into a one size fits all mold isn't freedom, regardless of what wishy washy reasoning is given to justify it.
> When it's forced by government decree
You aren't being forced to do anything that you didn't agree to. You aren't the apartment owner, you instead just signed the contract and have to follow the apartment rules.
I don't see why you get to complain about what someone else is doing with their own property. Its their property. What laws apply to them are none of your business as you simply signed the contract.
Oh good grief. This is such an uninformed and unnecessarily belligerent take.
We can and do have public nuisance laws which kick in when an individual is impinging upon the health, safety, comfort etc. of other people. This exists in jurisdictions all over the world for all kinds of things, the penalties are usually minor and applied only to repeat offenders. It is completely reasonable for someone to support the idea of these applying to marijuana use, in fact, in most jurisdictions where marijuana is legal, they probably already do. Yes, repeatedly stink up your neighbor's apartment and you may get a warning followed by a fine, deal with it. Your parent is not a Nazi and is not throwing stoners in prison. Perhaps go touch grass instead of smoking it now and then.
The irony of being called "belligerent" when there is infamously a declared war (The War On Drugs) against me and my kind!
Just like all other American wars, it is neverending, and nothing more than a way to funnel money and power into certain people's pockets at the expense of others, while destroying as many innocent lives as possible in the process.
I don't care what apartment dwelling city people do. City issues are for you to work out among yourselves. I'm out in the country far from anyone and I still have to worry about being thrown in prison. The danger is no less here and it has nothing to do with the smell. That's just one of many excuses weed haters use to persecute us. Satisfy one objection and immediately another will be raised.
It never ends and will never end, until the evil ones have achieved their end goal of exterminating this plant and its keepers from the planet forever. Since that will never happen, then it will just be a neverending struggle until the end of time, I guess, with many lives being destroyed in the process.
Mormons voted strongly to legalize MJ in Utah. Maybe your politician is just an odd man out?
edit: Well, I should note the Utah vote was only for "medical" MJ.
It got through via a ballot initiative. It wouldn't have been passed by the legislators in UT without that.
That's why the guy in my state, C. Scott Grow, has also been fighting to make ballot initiatives harder. He's terrified that an MJ initiative would make it's way in that way.
Republicans in Utah are also trying to remove the power from ballot initiatives because they're upset the Utahans passed an anti-gerrymandering initiative.
Yaeh this is a thing states do. South Dakota went in cahoots with the courts to cancel the ballot initiative to legalize weed, and California went in cahoots with the courts to sabotage prop 8 (the banning of gay marriage).
> isn't seen by politicians as a motivating vote driver ... It got through via a ballot initiative
Those two seem a little at odds. People are going to vote against it, but not when it's specifically on the ballot?
It's not.
If 90% of party A supporters support the issue, and 70% of party B supporters support and issue and the election is close to 50/50 with B in power. B putting forward the issue can make them lose the next election because that 30% will either withhold their vote or vote for the other party.
But if that same issue is a ballot measure, then the 90% of A voters and 70% of B voters will overwhelmingly pass it.
This is what I mean by a motivating issue. Nobody will withhold their vote if MJ stays illegal. But there are certainly people (mostly religious) that absolutely will withhold their vote if a politician makes it legal. Even if that's a super popular move.
That's why pretty popular things aren't done. It's also why unpopular things can be easily done. If nobody withholds their vote because of the "send the kids to the mines" act (because they are happy about the mandatory Bible study), then a politician can get away with really horrible things so long as they make the core of their voters happy. After all, you aren't going to let the other guy win now are you.
It's what's broken about parties and FPTP elections.
> C. Scott Grow
Reverse nominal determinism
Grow, Scott, grow!
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.
That's been going on for a long, long time.
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.
That's only one of many ways to consume it, many people vape, have edibles or drinks and you just don't notice.
Even as a daily weed smoker myself though, it's hard not to acknowledge that a more liberal marijuana stance in a geographic location does lead to that smell being more commonly encountered when in public and out and about.
Personally I don't mind, almost the opposite, but for people who don't like the smell, obviously they feel differently. Good thing we can have different policies in different places, and people can generally, one way or another, move themselves to other places. Could be easier, but could also be way worse.
See also, cigarettes, cigars, and pipe smoking. I find those smells about 10x as offensive as smoked weed. I don't see the HN crowd coming out against tobacco despite these two being roughly equivalent in use. And that 20 ft from the door thing is a joke when it's on the sidewalk you have to walk through to reach the bus stop or your car. At least the pot smell doesn't stick to my clothes until they're washed like the tobacco smell.
I dunno, I think it should be legalized and operation of a car or other heavy machinery while intoxicated should result in a swift and brutal public execution. Win/win. :D
But maybe I'm just a little jaded after having lived in a legalized area and almost being run down by hotboxed cars more than once.
Functionally in many places where the usage is unlawful, harmless use in people's private homes has very low risk of prosecution while dangerous or disruptive public use is still curtailed. I find it easy to sympathize with people who consider that a better tradeoff.
I strongly agree with de-federalizing any such decisions though-- your comment on freedom to move is a great one. I recently relocated to a place where it wasn't legal from one where it was, any when evaluating differential freedoms in making that decision the subject came up and I decided I probably actually preferred the restriction due to the collateral harms (although I strongly chaff at any restrictions on private activities or maintenance of your own body). I wouldn't say it was a major factor in the decision to move (other policy/economic/environmental/security matters were drivers) but for me it wasn't a reason to not make that move.
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Meanwhile, I smoke weed in my office, but I have a air purifier (rated for double the air flow capacity of the room) and not even my wife who works in the room next door can smell anything, and she actively despises the smell.
Sometimes you just need to find the right equipment :)
Some people say the same about the smell or noise of babies. It's not a very strong argument for getting ones way in controlling others.
If you truly think that "having babies" and "smoking weed" can be compared in any meaningful sense like this, I'm not sure what to tell you.
Are you ok with ciggarete smoke then if you are ok with marijuana smoke?
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>> Are you ok with ciggarete smoke then if you are ok with marijuana smoke?
> Yep. Why wouldn't I be? I'm not a brainwashed Karen.
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babies -> needed for civilization to continue
weed -> possibly negative effect on civilization ( https://pmc.ncbi.nlm.nih.gov/articles/PMC2424288/) , certainly not a requirement.
THC is perfectly legal here (Quebec, Canada) and believe me, there is no smell on the streets!
What is actually disgusting and happens often in the streets is the smell of ordinary cigarette smoke.
It's not legal where I am at all and I get hotboxed on my morning drive to work every day...
The fact that so many people think it's fine to get high and drive is baffling to me.
It’s ok if you do it where you arrive at taps forehead
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It's still illegal in all 50 states and a DUI or DWI.
And your point is?
It still negatively affects your ability to drive. You shouldn’t be taking anything that negatively affects reaction time or attention and drive.
I’m pro legalization but definitely not pro reckless behavior like that
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If you think consuming thc doesn’t effect your driving ability then you should probably lay off it for a while because you’ve become retarded.
Why do you hate facts?
It's legal in many states here. In SF it's absolutely everywhere and disgusting. Austin smells like tobacco and it's much better to my nose.
Your nose is literally a special flower. What smells good to it may not to another and vice versa. I far prefer the smell of pot smoke on the sidewalk to the smell of tobacco smoke. You youngsters missed the years of indoor workplace smoking and smoke breaks with 20 smokers surrounding the office entry door. It's just another smell to you. But for those of us who lived through the bad days of smoking, it's a toxic soup, a smoke inferno hell pit we're not thrilled about revisiting right outside of our favorite restaurant. A little bit of grass burning, no big deal. A cigarette and my meal's ruined.
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This might be controversial, but smelling either in public makes me happy! Now the stale smell of tobacco-infused clothing, that is awful.
> but only inside your own personal enclosed house.
Isn't it usually illegal to smoke things like cigarettes inside rented homes, legality aside? And don't most people rent? That seems like a whole can to deal with.
Oh no, the thought of catching a whiff! No one must smoke in texas, since you know, everyone follows the law. Smoking weed only started in general with legalization. It was mythical beforehand.
I mean, there are plenty of neighborhoods in CA that don't have that smell...
There just no smell like this in any neighborhood outside of college campuses and area close to those.
You might get a whiff here and there, but you're going to encounter a lot of smells you don't like here and there.
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.
The controlling case is Wickard v Filburn (1942).
A farmer was told he could only grow X acres of feed on his own land; feed that he had no intention of selling and was being fed entirely to his own livestock on the same land.
This seems to overturn that in part, but until Wickard is overturned, and the interstate commerce clause reigned in, there will be weird side effects of it like this.
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)
In particular, Necessary and Proper as it relates to the taxing power, which the challenged statute relied upon, having been passed decades before the scope of Commerce Clause powers began their expansion, let alone Wickard v. Filburn.
How does the supreme court revisit precedents if the circuit court doesn't readdress the issue?
The party that wants the precedent reversed loses in the lower court (because the lower court is bound by current Supreme Court precedent) and appeals to the Supreme Court. The canonical historical example is Brown v. Board of Education, which was appealed to the Supreme Court explicitly to ask them to reverse Plessy v. Ferguson, which lower courts had relied on as precedent.
Somebody has to bring a new case that presents a novel legal theory/presentation that isn't clearly addressed by the ruling that forms the precedent.
Additionally, one can argue that the state of the world has changed enough that assumptions made by the USC at the time of precedence require reversal.
only in a new case ....
The court is stacked with so called originalists - history stopped in the eighteenth century.
idk, they wouldn't have given the president nearly absolute immunity back then..
> Circuit courts may not overrule Supreme Court precedent.
That's a Supreme Court opinion that only applies if the new case reaches their docket and gets reaffirmed.
There's a lot of context (behind Wickard v Filburn) which would obviously not apply to anyone distilling for personal consumption:
I'd imagine one wants to litigate Wickard v. Filburn in its entirety, rather than just the downstream Gonzales v. Raich
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.
I don't see SCOTUS ever overturning Wickard, sadly. Too many federal programs and regulations would lose their legal basis if that happened.
You’re almost certainly correct. Kagan, Sotomayor, and Jackson would argue this consequentualist line. Thomas, Alito, and Gorsuch could be persuaded by textualist or originalist arguments and are the most likely overturn votes. Kavanaugh was a key man on standing up and defending the so-called PATRIOT Act during the George W. Bush administration, so no way he knocks out this pillar.
ACB talked a strong originalist game during her confirmation but since shown it’s not her core philosophy. Although Roberts appears inclined to rein in the administrative state, he’s aligned chaotic neutral and thinks himself too clever.
Already down 4-3 and having to persuade both Barrett and Roberts to join a ruling overturning parts of Wickard, another Dobbs seems wildly unlikely even though both precedents were poorly reasoned. At best, they agree to some marginal or technical reduction in scope. It seems equally likely that she sides with the four, in which case, what does Roberts do? He may need to make it 6-3 to control who writes the opinion. Such strong numbers would be unfavorable enough on the surface that he might persuade her back to an even more tepid limitation. The concurring opinions that it would induce from Thomas, Alito, and Gorsuch would be entertaining reading, at least.
Please suggest one, but ideally three, things that you think that overturning Wickard would lead to that would cause K, S & J to vote against doing so?
In Gonzales, O'Connor dissented and Scalia, who was too afraid of pulling the rug out from under the administrative state, issued a concurrence. So, surprises do happen.
Drugs were always a weird exception to what was otherwise pretty consistent jurisprudence on Scalia's part.
I was prepared to excuse his vote as an exceptional situation until Sebelius, when rather than revisit and fix his mistake in Gonzales he chose to embrace the affirmative mandate vs passive prohibition distinction nonsense, a deux ex machina fit for one purpose and one purpose only. Fool me once....
There's a good argument to be made that it was just good luck for Scalia's intellectual legacy that he died before the conservative supermajority on the court got rolling, because he was already well on his way to replacing principles with expediency: https://www.scotusblog.com/2026/03/justice-scalias-uncertain... Like the old saying goes, it's easy to criticize, much more difficult to offer constructive, durable solutions.
I call BS. Wickard is about, effectively, "police power" based on a broad interpretation of the scope of federal/interstate commerce.
As noted by other commenters, the concept of federal control of interstate commerce was intended to prevent states from interfering with trade between themselves and other states, and to create some "higher" authority for aspects of commerce that truly transcended state borders and control.
Most of what has happened in terms of programs and regulations fits very comfortably into that understanding. What doesn't, which I don't think is a lot, should probably go away anyway.
If you can use the commerce clause to prevent a guy growing wheat on his own property and feeding that crop in its entirety to his animals, there literally isn't an activity the federal government can't regulate.
Correct. I'm suprised sexual orientation hasn't been regulated by the same stupid logic. Clearly if you're not making babies you're effecting all kinds of interstate commerce.
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.
fixing the interstate commerce clause is one of those things that needs to be done eventually, but will likely never be done - even if just to "fix" it so everything remains the same but is based on simpler allocation of powers than through a "loophole".
John Roberts will find a way to screw it up.
That would be an improvement in the same spirit, as the modern CRAs are also unconstitutionally limiting over what one chooses to do with their own property. The scope should be limited to government-involved services and facilities, as those must serve all possible taxpayers. We live in a more connected, option-saturated information age where even bigots more often than not understand the utility of at least doing business politely and making nuanced exceptions. Egregious offenses are corrected by social pressure and business competition. The current regime of ambulance-chasing liabilities inserted into every organizational, contracting, and hiring process harms far more people of every race and sex than it helps.
>Egregious offenses are corrected by social pressure and business competition.
This doesn't work when bigots are willing to pay a premium for discriminatory services.
Also, do you feel the same way about the FHA and Title VII? Those also involve regulating what you can choose to do with your private property, but I don't want to assume that you don't consider housing and employment to be distinct from, say, hotels and grocery stores.
In Wickard v. Filburn, back in 1942, they said the same thing for wheat.
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.
>there can be no interstate market in a substance that is illegal to trade.
There is in fact an interstate market in many substances that are illegal to trade because laws against things do not make those things fail to exist.
No market that the federal government can recognize, tax or regulate
Illegal commerce is still subject to taxation and regulation, famously so in the case of Al Capone.
The reason marijuana is Federally illegal in the first place is because the commerce clause is interpreted to allow it.
Our companion case in the Sixth Circuit tees up the issue:
https://www.buckeyeinstitute.org/issues/detail/ream-v-us-dep...
See the opening brief.
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.
Many American treaties (with other nations) prohibit both/either parties from decriminalizing marijuana among other drugs.
Links:
discusses some of the treaties:
https://www2.nycbar.org/pdf/InternationalDrugControlTreaties...
History of illegalization of pot:
Treaties can't legally do an end-run around the limits prescribed to the government in the Constitution.
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.
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!"
I suspect that if that ruling was made, then many other drugs being made at home for personal use might become legalized, at least unless states decide to go and ban it too. Note that I am not taking a position here on if that's desirable.
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 the law is broken, fix the law
If you follow that argument to its conclusion, you end up at: fixing the law requires amending the Constitution, and if the law for amending the constitution is broken, the remedy is revolution. Most participants prefer the current practice instead.
Maybe we could get enough support behind an amendment to amend the amendment process.
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.
Yes, regardless of that specific case I'm hoping to see a series of Supreme Court decisions that will eviscerate federal government power over internal state affairs and restore the original intent of the 10th Amendment. Long live federalism.
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?
That's really strange.. I grow tomatoes at home. Surely that would apply too?
Another case based on interstate commerce: the US ban on racial segregation. The example given, iirc, was restaurant competition across state lines.
The interstate commerce clause is just craziness. It touches everything and gives justification to regulate nearly anything.
A lot of stuff does have interstate implications. Especially now that most corporations operate in an interstate fashion.
That said, I agree that it's overused. I personally think that the 9th amendment should be used in a lot of cases, like civil rights, instead of the interstate commerce law.
The supreme court, however, has basically decided that the 9th amendment doesn't really exist.
You could just as easily stuff most of those things under the "general welfare" clause if you do the same rigamarole of years and years of precedent hand-waving. We live in a post constitutional state. The constitution is just something worked to backwards so the guys who function as our priests/gods point to the document because that's the only way to feign some sort of legitimacy to our government.
Ultimately none of us signed the constitution and all of those people that did are dead. It is a religious artifact used by the whig -god people to argue they are right. Not something followed with faith to the historical context nor literal contract.
(edit: to below trying to compare bad-faith ICC to good-faith general welfare, you must apply similar levels of creativity and bad faith. Ban things through high or impossible to pay taxation. "Tax" behavior to force people to do something in a certain way, make very heavy penalties for not paying the tax, and also make it extremely difficult to buy the tax stamps (this is how they did drug control until they decided to use the new fraud of "interstate" commerce).
General Welfare Clause only applies to taxing and spending, though, not just general regulation (e.g., making drugs illegal or banning segregation).
For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars … But what would have been thought of that assembly, if, attaching themselves to these general expressions, and disregarding the specifications which ascertain and limit their import, they had exercised an unlimited power of providing for the common defense and general welfare? I appeal to the objectors themselves, whether they would in that case have employed the same reasoning in justification of Congress as they now make use of against the convention. How difficult it is for error to escape its own condemnation!
Federalist No. 41 https://avalon.law.yale.edu/18th_century/fed41.asp
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I agree, from the other side of the aisle. The Constitution is merely a well-guarded piece of toilet paper now. Culture matters way more than legal documents in preserving a nation, and our culture has waned too significantly. I believe we've entered the "Byzantine" phase of America.
> 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.
> 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.
This does not meet up with my experience with them at all.
Just quick check, what percentage of onlyfans creators are Gen Z / Alpha vs other nonsense year demographics?
I think there's a selection effect there that makes it an unrepresentative sample.
First, Gen Alpha is in their teens, so it's kind of hard to say what is happening there or will happen.
Second, there is a growing divide between gen Z males that are skewing conservative in some ways. Their church/religious attendance is up, but overall attendance is still down.
Gen Z females that are the most liberal demographic in history.
The split is both political/social.
(US analysis)
>Their church/religious attendance is up
This was debunked, at least in the UK. Not sure about the US but I'll bet it's the same sham (church sponsored) statistics.
I think more of each generation is coming to realise that religion is an outmoded parasite.
The church certainly is, but religion isn't and will never be.
At this point I don't see any difference between the two. Modern religions are shaped (warped, really) by the larger organizations that control them.
Sure, the concept of "spiritual/non-scientific belief" isn't a parasite in and of itself, but even if the existing organized religions ceased to hold their sway, and people treated religion as a personal thing without centralized authorities, I still don't see an end to (for example) people trying to get their religious beliefs enshrined in law. That's parasite behavior.
If they reversed Gonzales v. Raich they'd be under a lot of pressure to reverse Wickard v. Fulburn, which would have such wide ramifications I just don't see the court doing it no matter how warranted.
I looked at the actual decision [1] and didn't see Filburn mentioned once. I find that odd. Filburn [2] was a controversial and far-reaching decision that said that the Federal government's ability to regulate interstate commerce extended to people growing wheat on their own property for their own use. The rationale was that by growing wheat you weren't participating in the interstate wheat market. That seems like a wild interpretation to me but it's Supreme Court precedent at this point.
So I found this footnote:
> The government does not challenge the district court’s Commerce Clause analysis on appeal. Accordingly, any such argument is forfeited, and we do not address it.
That's interesting. Here's a legal analysis that does bring up the Commerce Clause and Filburn [3]. I really wonder why the government didn't raise this issue.
I knew just from the headline this was going to be a 5th Circuit decision, and it was. This is the same circuit that is perfectly fine to override "state's rights" for other issues.
[1]:https://www.ca5.uscourts.gov/opinions/pub/24/24-10760-CV0.pd...
[2]: https://en.wikipedia.org/wiki/Wickard_v._Filburn
[3]: https://www.yalejreg.com/nc/reviving-the-commerce-clause-one...
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.
SCOTUS did a pretty hilarious soft "strike down" of Wickard where they basically determined the gun free school zone act (GFSZA) violated interstate commerce clause. So congress just added "in interstate commerce" to the GFSZA and now it does the exact same thing even if there was no interstate commerce involved, and nothing involved ever crossed state lines or actually entered interstate commerce.
So SCOTUS basically solved this by saying the law had to say "in interstate commerce" but it is basically just there as a talisman to ward away challenges, a distinction without any difference as it becomes a tautology.
I don't agree that requiring a talisman is irrelevant-- ineptly drafted laws will lack them and fail more easily. The legislative effort to add it may not happen later, especially once judicial review has spoken negatively of the underlying constitutionality of the law.
It also is not of no effect-- it's an element of defense and people have escaped GFSZ act because the government failed to satisfy interstate commerce (and internet search suggests the some courts have taken it to mean that the presence of the gun in the school zone itself must have impacted interstate commerce, rather than just the gun's past purchase did). Every element the prosecution must prove at any level increases the marginal cost of prosecution and makes it less likely to be imposed on more marginal cases.
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 word "interstate" does not exist in the text of the Constitution.
There's arguably some merit to your position, but the argument that some case law is invalid because it doesn't meet the definition of a term defined in other case law is circular and incoherent.
It uses the phrase “regulate commerce between the states” which effectively has the same meaning.
No. It absolutely does not use that language, and it baffles me as to what would cause you to say that it does.
Please endeavor to say only true things. The truth matters.
You're working awfully hard to be pedantic without comparing the actual language:
> to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes"
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A paraphrase isn't a lie. The actual quoted passage from the constitution does indeed amount to a regulation of interstate commerce.
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The problem is if you say the government can’t regulate MJ, then all drug regulations fall apart.
On one hand you should have a right to buy whatever you want at 21( which should be the minimum enlistment age), but I’d be concerned about Billy selling homemade GPLs or whatever.
> 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.
Okay. So if you decide to visit a friends house does him sharing still count as personal use ?
In many communities you have a guy who cooks plates of food and sells them. While technically this is illegal with out a permit, it’s usually tolerated.
I’m all for the legalization of everything for adults, but it’s a very complex issue. Education is the way here, not punishment
No one argues these things are not able to be regulated. Instead, per the 10th amendment, it must be left to state law since Congress does not have unlimited power and may only legislate where power has been granted to them by the constitution.
And before people say you are being hyperbolic, the government still regulates sex positions. Sodomy is illegal in 12 US states.
Not the federal government, however.
There are specific prohibitions on certain categories of state laws, like granting titles of nobility, creating non-gold/silver currencies, etc. The federal government cannot constitutionally regulate sex positions, because anything not explicitly covered in the Constitution is reserved to the states, or the people. In that broad grant, however, the states individually can make or avoid making law on any topic.
As others have mentioned, the Supreme Court has frequently worked around the Constitution for reasons that made sense to them at the time, including the original ruling that this one overturns.
>The federal government cannot constitutionally regulate sex positions, because anything not explicitly covered in the Constitution is reserved to the states, or the people.
That being said, there's probably not a constitutional way to enforce laws regulating sex positions. Even if you don't agree that such laws are clearly discriminatory in intent (let alone impact), the privacy violations necessary to prove guilt "Beyond a reasonable doubt" almost certainly violate the Fourth Amendment, and any theory of harm would implicitly (if not explicitly) rest on religion.
This is all assuming you don't accept Griswold as a reasonable constitutional argument that pretty obviously would extend to the kinds of sex people have.
> That being said, there's probably not a constitutional way to enforce laws regulating sex positions.
Right, but until someone gets arrested for this, nobody has standing to challenge the constitutionality of the law itself. It is one of those unenforceable laws. Even biblical law required witnesses (never just one) before being able to prove adultery.
See also Griswold v. Connecticut.
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.
"Pretty much" is doing quite a bit of work there. The feds ignoring marijuana use in states that have legalized or decriminalized it is the DoJ actively deciding not to prosecute MJ cases. They could absolutely send the FBI or whatever into a state with legalized marijuana and raid dispensaries and arrest people if they wanted to.
> I’d be concerned about Billy selling homemade GPLs or whatever.
Would it be better with a BSD license?
Been samplin’ a little bit of Grandpa’s attribution clause, have we?
The entire 10th amendment is basically being ignored because interstate commerce policies and rulings. For that matter, the 1st, 4th and 5th aren't being upheld either.
nah, 3d printed firearms next.