5 ms·

It will be interesting to see what happens if a recreational drug user mounts a defense based on the 10th amendment -- that the federal govt has no jurisdiction

by foo2 10y ago

It will be interesting to see what happens if a recreational drug user mounts a defense based on the 10th amendment -- that the federal govt has no jurisdiction over intrastate drug use. 100 years ago, we thought a constitutional amendment was necessary to ban a substance within a state.

dragonwriter 10y ago
> It will be interesting to see what happens if a recreational drug user mounts a defense based on the 10th amendment -- that the federal govt has no jurisdiction over intrastate drug use. It's already been tried and failed with medical marijuana, Gonzales v. Raich (2005). And, for that matter, commercial wheat farming, in Wickard v. Filburn (1942). It's unlikely recreational marijuana would result in a different result.
- wtbob 10y ago
  > It's already been tried and failed with medical marijuana. And, for that matter, commercial wheat farming, in Wickard v. Filburn (1942). > It's unlikely recreational marijuana would result in a different result. I dunno, with originalists like Thomas & (hopefully) Gorsuch it's certainly possible. Bad precedent needn't necessarily stand, after all.
  - dragonwriter 10y ago
    > I dunno, with originalists like Thomas & (hopefully) Gorsuch it's certainly possible. Compared to Raich (2005), even if Gorsuch flipped from the way Scalia went you need another vote; Thomas was on the Court then so is no change.
- foo2 10y ago
  United States v. Lopez (1995) hopefully started cutting back on such a laughable decision. Can you think of any behavior which doesn't in some indirect way affect interstate commerce? If the founding fathers had intended for an unrestricted commerce clause, they wouldn't have bothered with the 10th amendment or enumerating the other powers. The constitution is a whitelist.
- AnimalMuppet 10y ago
  IANAL. But it might be possible that the Supreme Court no longer regards Wickard as good precedent. IIRC, the Obamacare case got decided in a way that said that the individual mandate could not be justified as "interstate commerce", but that it could be justified as a tax. This may leave the Feds needing to say, "We can't prohibit it. That's outside the powers given to the Federal government. But we can tax it, and tax it highly enough that nobody can afford it..."
linksnapzz 10y ago
The commerce clause has become the GOTO statement used whenever the national government wishes to interfere with the states. Ah, somebody already mentioned Wickard.
LyndsySimon 10y ago
This has already happened - see Gonzales v. Raich[1]. The Supreme Court ruling on that case was a huge blow to both marijuana legalization efforts and gun rights. 1: https://en.wikipedia.org/wiki/Gonzales_v._Raich https://en.wikipedia.org/wiki/Gonzales_v._Raich

by foo2 10y ago

dragonwriter 10y ago

> It will be interesting to see what happens if a recreational drug user mounts a defense based on the 10th amendment -- that the federal govt has no jurisdiction over intrastate drug use. It's already been tried and failed with medical marijuana, Gonzales v. Raich (2005). And, for that matter, commercial wheat farming, in Wickard v. Filburn (1942). It's unlikely recreational marijuana would result in a different result.

wtbob 10y ago
> It's already been tried and failed with medical marijuana. And, for that matter, commercial wheat farming, in Wickard v. Filburn (1942). > It's unlikely recreational marijuana would result in a different result. I dunno, with originalists like Thomas & (hopefully) Gorsuch it's certainly possible. Bad precedent needn't necessarily stand, after all.
- dragonwriter 10y ago
  > I dunno, with originalists like Thomas & (hopefully) Gorsuch it's certainly possible. Compared to Raich (2005), even if Gorsuch flipped from the way Scalia went you need another vote; Thomas was on the Court then so is no change.
foo2 10y ago
United States v. Lopez (1995) hopefully started cutting back on such a laughable decision. Can you think of any behavior which doesn't in some indirect way affect interstate commerce? If the founding fathers had intended for an unrestricted commerce clause, they wouldn't have bothered with the 10th amendment or enumerating the other powers. The constitution is a whitelist.
AnimalMuppet 10y ago
IANAL. But it might be possible that the Supreme Court no longer regards Wickard as good precedent. IIRC, the Obamacare case got decided in a way that said that the individual mandate could not be justified as "interstate commerce", but that it could be justified as a tax. This may leave the Feds needing to say, "We can't prohibit it. That's outside the powers given to the Federal government. But we can tax it, and tax it highly enough that nobody can afford it..."

linksnapzz 10y ago

The commerce clause has become the GOTO statement used whenever the national government wishes to interfere with the states. Ah, somebody already mentioned Wickard.

LyndsySimon 10y ago

This has already happened - see Gonzales v. Raich[1]. The Supreme Court ruling on that case was a huge blow to both marijuana legalization efforts and gun rights. 1: https://en.wikipedia.org/wiki/Gonzales_v._Raich https://en.wikipedia.org/wiki/Gonzales_v._Raich