So Much for Federalism and the Commerce Clause

I tend to be a pragmatic, rather than a dogmatic, federalist.  What I mean by that is that I support federalism for the pragmatic reason that it tends to slow statism, rather than a dogmatic belief that federalism is somehow morally superior.  Generally, federalism has been good for this country, as it has provided a check to states that go nuts on taxation and over-regulation.  The exodus of businesses from the Northeast in the 60's and 70's and from California more recently are examples of this effect at work, as citizens vote with their feet for the regulatory regime they prefer.

The recent decision on medial marijuana, where the Supreme Court ruled 6-3 that federal marijuana laws trump state medical-marijuana statutes seems to be another nail in the federalism coffin.  One can tell immediately that the ruling is all about federalism (rather than drugs) when you have the spectacle of the three most conservative judges supporting state legalization laws and the most liberal judges ruling for continued marijuana illegality under federal law.  Again reading my handy pocket Constitution (courtesy of Cato), it is hard for me to find where the feds have purview over regulating California home-grown pot smoked in California.  By accepting the argument below, the Supreme Court has basically ruled that the feds can pretty much regulate intra-state commerce, since you can probably make a similar argument in any case:

lawyers for the U.S. Justice Department argued to the Supreme Court
that homegrown marijuana represented interstate commerce, because the
garden patch weed would affect "overall production" of the weed, much
of it imported across American borders by well-financed, often violent
drug gangs

By the way, think about that for a minute.  They are arguing that home-grown weed would "affect" the inter-state commerce of "violent drug gangs".  How would it affect it?  It would reduce their commerce!  So the feds are claiming purview over home-grown pot because it would, what?  Unfairly reduce the inter-state trade of violent drug gangs?

Clarence Thomas makes the point succinctly that accepting this argument is the end of the distinction between inter- and intra-state commerce:

Respondents Diane Monson and Angel Raich use marijuana that has never
been bought or sold, that has never crossed state lines, and that has
had no demonstrable effect on the national market for marijuana. If
Congress can regulate this under the Commerce Clause, then it can
regulate virtually anything and the Federal Government is no longer
one of limited and enumerated powers.

Is it just me, or does this Supreme Court seem all over the place in its rulings?  Maybe you constitutional scholars out there can figure it out.

Update:  More from Reason

More thoughts:  The left complains that the right is trying to create a theocracy via the Supreme Court.  The right argues that it just wants to protect constitutional limits on government, which the left wants to exceed.  I have been and still am suspicious of some conservative judges on the court, but I must say that the way the votes fell in this case certainly hurts the "theocracy" argument.  I would start to believe if it wasn't for the fact that in the next case, if recent history is any guide, everyone will likely reverse their positions again.


  1. A Stitch in Haste:

    On the Gay-Raich Connection

    As a gay blogger/blawger who must relentlessly endure hearing how mob rule the democratic process (as opposed to, um, the plain language of the Constitution) is the source of all governm...

  2. Jason:

    Nice place ya got here - and well said re: the Raich decision. I imagine I'll be back here from time to time.

    I wrote a big post on my blog about the decision, so I won't rehash comments I think we'd both agree to, but I wanted to engage you on your opening statement: I tend to be a pragmatic, rather than a dogmatic, federalist. What I mean by that is that I support federalism for the pragmatic reason that it tends to slow statism, rather than a dogmatic belief that federalism is somehow morally superior.

    I'm not sure why they're mutually exclusive. Couldn't federalism's pragmatic advantage of slowing statism be an acknowledgement that less statism is morally superior to more statism and that therefore anything that reduces or slows statism is morally superior to anything that increases or speeds statism? Federalism, applied faithfully and correctly, keeps lawmaking closer to the people who live under those laws than does centralization, and when coupled with a libertarian view of self-ownership and the inability of individuals to delegate powers they do not possess to a government, it makes it easier to keep people from infringing the rights of others - which is morally superior than the alternative.

    So anyway, I'm no law professor and certainly no expert on federalism (though I'm trying - working my way through The Federalist and The Anti-Federalist as well as other writings of the time [], and is next on the list), but it seems to me that being a pragmatic federalist and being a dogmatic federalist shouldn't be mutually exclusive.

  3. Matt:

    I am profoundly disappointed in Justice Scalia, and just as profoundly surprised by Justice Thomas. Who would ever have thought that the latter would take the absolutist view (also known as the _correct_ view) on enumerated powers while the former ignored a twisted-logic reading of the Constitutional text that opens a loophole in limited government that you could push an oil tanker through sideways?

    Enumerated _rights_ still get a smattering of respect, but nobody taken seriously in government has given even a passing thought to enumerated _powers_ since the New Deal.

    Jason: All other things being equal, "lawmaking closer to the people who live under those laws" may indeed encourage smaller and less-intrusive government. There are credible arguments and a fair amount of evidence supporting this proposition. And to whatever extent it's true, I would enthusiastically support moving lawmaking as close to the people as possible. But I (and, I suspect, our host) regard the smaller and less intrusive government as the primary good to be sought, and the federalism as merely a tool which can be useful to that end, and should be employed to the extent it's useful and ignored in any context where it isn't.

    "Dogmatic" federalists, on the other hand, would be people for whom the principles of federalism were themselves primary, and who therefore believed that those principles should be applied without necessarily being concerned with their actual effect, in particular contexts, on the gestalt experience of government by citizens. Or, to put a more charitable spin on it, one could posit that they are those who simply assume in advance that devolving the maximum practicable amount of power on the smallest possible units will necessarily and in all cases have positive results.

  4. Brad Warbiany:

    I also wrote a post on this, so I won't rehash too much here. But for Matt above, I suggest you check out and read Scalia's opinion. I certainly don't like it, but he didn't just join the majority on the grounds that it was an interstate commerce issue based on Wickard v. Filburn. I too was very surprised that Thomas went this way, especially after he was against direct shipments of wine in the recent SCOTUS case on that.

    My post can be found at , if anyone is interested...

  5. markm:

    "the three most conservative judges supporting state legalization"? What you been smoking? O'Connor is no conservative, although Rehnquist and Thomas certainly are. But think about what O'Connor and Rehnquist have in common: they've been in cancer therapy.

    Thomas simply followed his principles here. Scalia didn't. The four liberals on the majority side followed the basic liberal principal (the government can do whatever it pleases) over other liberal principles...