Sunday, November 28, 2004

Interstate commerce and Mary Jane

One of the Volokh conspirators, Randy Barnett, argues a case before the Supreme Court tomorrow. That would be the US Supreme Court, mind you. His case will argue that since his clients grew their own weed, they didn't leave the state or import it from another state, so there was no interstate commerce involved. Looks right to me, too, but because of the government's position on drug control, the chances of his winning are not all that good, common sense notwithstanding. Link
As his co-conspirator Jim Lindgren says, "...if the Court is intellectually honest and actually determines interstate commerce in any way that makes logical sense, Randy's side will win. Yet it would be awfully hard for the Court to strike down federal legislative control over marijuana regulation even where (as here) the marijuana is pretty clearly not in interstate commerce."

Trouble is the commerce part of that "interstate commerce" principle. Commerce is an economic term, so in order to make a definition that will pass muster to card-carrying economists, it is necessary to apply market principles when considering what the law means.

According to the government:

...the record affirmatively shows that respondents' homegrown drug activities cannot be divorced from the overall drug market regulated by Congress. Both respondents Raich and Monson were consumers of lawful drugs listed on Schedules II through V, before turning to marijuana, and respondents' claims of medical necessity suggest that both would purchase marijuana illegally if necessary. Raich also admits to past marijuana purchases. Each of these facts confirms what Congress found: that activities such as respondents' displace market transactions and threaten to swell the illicit drug market.

They say that when the only tool you have is a hammer, everything you see looks like a nail. Likewise,as Barnett points out, "every decision is an economic one to an economist. Nobel economist Gary Becker analyzed the decision to have children in economic terms, and (as I recall) Judge Richard Posner once famously asserted that rape in effect cheats on the market for dating. Do we conclude that procreation and forcible rape are therefore always in interstate commerce, just because they are economic decisions to some of our best economists?"

Thank goodness we have lawyers who can point out blatant contradictions when they find them. Unfortumately, it seems that contradictions are the mortar that sticks together political structures. If there were no contradictions there would be no need for politics...Right?

The Court is in a bind: if it follows inertia (which it usually does), it in effect reads the interstate commerce clause out of the Constitution and makes the government under it one effectively unlimited by enumerated powers. If the Court takes the commerce clause seriously, on the other hand, it drives a small, but significant wedge into the federal government's power to prohibit drugs. Link

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