Legal marijuana and Wickard vs Filburn

Great Debates
1

[Note: I don’t use mj, but I’m fascinated by its legalization process. Don’t know why, it’s just something I got interested in.]

Jeff Sessions will soon be our next Attorney General, and since he’s on the record as being very much against mj, this is making many people think he’s going to put the hammer down on its legalization, even of medical marijuana. He’s also a states’ rights advocate, but I’m going to guess that he’s a hypocrit about those. That is, he’s only in favor of states’ rights when the states are doing things he approves of. (There’s lots of that going around. For example, when Oregon approved physician-assisted suicide back in the 90s, pretty much all the states’ righters in Congress were against it.)

Assuming he does do his best to suppress it, there’s an excellent chance it’ll end up in court. Wickard vs. Filburn expanded the Interstate Commerce Clause to essentially be the Any Commerce Clause. Which is the rationale that was used by the federal government to prohibit various psychoactive drugs, including mj.

But the situation with legal mj is somewhat different than Filburn’s. Mainly it’s that some states have created an entire within-state industry and prohibited the export of it other states, even ones with their own legal mj. There was no such market created for animal feed back in the 30s.

Will this be different enough that we could expect a reversal? If Trump appoints a strict originalist to fill the SCotUS vacancy, will that make a big difference?

2

It’s true there’s no lack of hypocrisy on this point from the right wing – although in fairness I don’t know anything about Sessions’ views specifically.

But surely it’s worth pointing out a similar cognitive dissonance on the left, where people who usually denigrate the concept of states’ rights were enthusiastic about physician-assisted suicide and medical marijuana advances?

I oppose physician-assisted suicide and medical marijuana strongly. I think they are terrible social choices for a society to make.

But I agree that they are choices for a state legislature to make, not the federal government.

It might indeed. I suspect you’d get Thomas’ vote to weaken Wickard in a heartbeat, too.

3

I’m generally leftist in my politics, but I’ve never been against states’ rights in principle. However I do oppose their use to take away the civil rights of a subset of the population, which seemed to be the main use of them in the past. Or at least the main use that people objected to.

4

No it’s not, unless you explain how it’s relevant to marijuana legislation. Can you do that?

5

It’s relevant to rebut the expressio unius est exclusio alterius implication made by the OP.

6

I’m not sure I did that, but maybe I did. Could be more specific?

7

Where do States gets the power to ban inter-state commerce in a particular substance? Isn’t that contrary to the “dormant” commerce clause principle?

8

I was going mostly by news reports (IANAL) so it’s quite possible (in fact, likely) they got things wrong. Perhaps those arrests (such as this one) are just for having more than the maximum allowed in possession.

9

Even if Sessions decides to enforce the federal rules, does that mean the states must enforce it with their police assets?

10

No, they couldn’t. It would still be legal under state law, so the feds would have to do all the work themselves. I suspect they don’t have the manpower to do that as effectively as local police and courts.

11

No, it’s not worth pointing out b4cause the OP said nothing about either the left or the right.

Must you try and pull out the “liberal hypocrisy” card so often?

12

If you have time I’m interested to hear the argument for opposing medical marijuana. It’s a very rare position now (<1 in 10), and the devil’s advocate in me is curious.

13

Would it matter if, say, somebody came up with a process for turning marijuana plants into THC pills? Is this significantly different from converting willow-bark into aspirin?

14

For what? Getting high or medical effects? In either case, THC pills are already in existence (and I assume they’re extracts from marijuana) so, no it will not make any difference either way.

BTW, the medical effects of mj are not necessarily the result of THC. There’s cannabidiol (CBD – also available in pills) that’s also found in mj plants. It seems to help with some kinds of seizures and perhaps other things. It’s also legal in pill form in all but about 6 states, but not at the federal level. They have to maintain the fiction that marijuana has no medical function to keep it in Schedule I.

BTW, there’s a variety of mj strains out there. Some have lots of THC but little CBD and some are the reverse. If you want to get high, you want the former; for medical you may want the latter (which won’t get you high).

15

Sure you did, and sure I will.

States’ rights has generally been seen as a right-wing position, and the example you offered did nothing to dispel that:

This creates an impression that the hypocrisy on this issue may be found only on the right. In fact, the question of what should happen on a given issue when both states and the federal government legislate upon it is far too often decided by both sides based on their preferred policy outcome and not on applying the principle to the issue and abiding by the result.

My view has always been that the federal government has supreme but enumerated powers and the states have plenary legislative power except in the areas in which they have ceded their sovereign power to the federal government by virtue of specific enumeration in the federal constitution.

If the federal government wishes to impose a wise, good, happy law throughout the country it’s not enough to point out how wise, good, and happy the law is. The federal government must also identify where in the Constitution the power to legislate in that specific area is granted. The states, in contrast, need not do this.

Political figures on the left have been very happy to pay this principle scant lip service when advancing a cause they favor. The left advocated for and passed a law creating a federal civil remedy for the victims of gender-motivated violence: women could sue their attackers in federal court, under the theory that state courts were not always equipped to be easy enough for such injured women to prevail for a variety of reasons.

This had nothing to do with any power Congress had. But with an off-hand reference to how violence against women affects interstate commerce, the left passed and President Clinton signed into law this provision.

But when the issue of legal marijuana arises – arguably more impactful of interstate commerce than the ability to sue one’s attacker for gender based violence in federal court – the left discovers anew the sacred principles of federalism.

And as you correctly highlighted, so does the right, with different issues.

But by mentioning only one side, only one nominee, and then one other example, you gave the casual reader the off-hand impression that only the right suffered from this malady. And interestingly, your weakest statement was that “you’re going to guess” that Sessions will prove to be a hypocrite on the issue. He may well be, and I welcome learning more on the point, but the only evidence you offered was your guess and an example of what other right-wingers have done.

Does that help your understanding?

16

What cognitive dissonance? I don’t think many people on the left think about states’ rights at all except to mock those on the right that are always claiming it overrides the Constitution (school prayer, abortion, free speech, etc…) but completely ignore it with pot, gun laws, gay marriage, assisted suicide, etc… It seems clear to me that states’ rights is a conservative topic, not a liberal one.

17

When I typed my last response, your latest response wasn’t there.

It does not. Liberals who, in general, would like to decriminalize marijuana and end the war on drugs are not chanting “states’ rights” as they do it. At least this is not the message I hear from them. I am not saying that I agree with most liberals on this point, but they don’t seem to believe that the rights of states are sacred in any way, shape, or form. Conservatives, however, do believe that the states have powers that are enshrined in the Constitution and seem to have problems with the equal protection clause of the 14th amendment. So, the only time liberals bring up states rights is to point out the hypocrisy of the right. You may think that this is just as hypocritical of them and that it s a distinction without a difference, but I disagree.

18

The short answer is that there are two reasons to point out hypocrisy. One amounts to an ad hominem or well-poisoning argument: look, you’re a hypocrite, so we should not listen to anything you say.

The second reason, when it applies, is an entirely valid form of argument: hypocrisy obscures the real argument.

If you (and in the following, I use “you” in the indefinite sense, not you, Bo) advance the position that, for example, we should fear Trump’s election because the news of his impending presidency caused the stock market to tank, an opponent can begin a laborious task of showing how yours is an inference unsupported by the history – to defeat your presumed argument on its merits.

But then, if the stock market rebounds, you don’t acknowledge that this factor now weighs positively in evaluating Trump. The argument is simply forgotten.

This shows that the stock market was never truly the argument. Instead, it was a proxy for general Trump bashing: you picked negative things that you could assign to the real argument that Trump sucks. This is destructive to debate: no reasoned rebuttal will be effective because the arguments and principles you advance are shams, obscuring the real issue in contention.

When a conservative speaks of states’ rights, he is seemingly advancing an argument for a neutral framework, and may be debated on that point. But if he abandons that argument the moment his policy goals are more likely to be served by federal power, then he reveals that the defense of states’ rights was merely feigned for the real purpose of advancing his preferred policies.

That’s why I call out hypocrisy: not as an ad hominem attack, but in an effort to show that the impassioned defense of some framework is not actually the argument, since in other cases that same framework is rejected.

19

Bricker tortures logic into a pretzel to try and prop up an anti-liberal strawman? Say it ain’t so.

The left is neither for nor against State’s Rights as a principle. They do oppose many of the horrible injustices that righties try to perpetuate using the State’s Rights argument. There is no hypocrisy there, but some righties like to pretend there is.

For instance, euthanasia and assisted suicide. Generally held as an individual’s right by the Dems. They would love to pass it nationally. If they can’t, they’ll try to make it available to as many people as possible, because it’s the right thing to do, and because the best argument the Republicans can offer against it boils down to “but we wanted to legislate our religion onto everybody!”

So it gets passed at a state level.

And when the Republicans predictably get the vapors and oppose it, the Democrats say “States’ Rights!” not because they are asserting a core belief in the right of the States on this issue, but because they’re pointing out the hypocrisy of the Republicans - hoping in vain that this time, it will make them slightly ashamed of themselves.

20

And when they bring that argument into court to defend the issue, they’re just really hoping to make their opponents even more ashamed?

Really?

That’s your view – that Democrats who defended physician-assisted suicide by invoking states’ rights were doing so only to point out the hypocrisy of the Republicans and elicit shame from them?

And they take this action into court challenges for the same reason?