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June 06, 2005

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And of course I should have added: this gives the federal government the right to prosecute people who grow their own marijuana for medicinal purposes, even if they never sell it.

there comes a point in the lives of most large computer programs when adding new functionality becomes difficult - increasingly difficult with each new bit. the various parts of the program, initially designed as separate and self-contained entities that communicate only in certain narrowly-specified ways, have become entangled and can't be thought of as separate parts anymore; any attempt to modify one part affects the entire system, often in unpredictable and disasterous ways. this happens because of lazy programmers, impossible schedules, conflicting requirements, confused customers, many things. but it nearly always happens.

this is when programmers and their managers start to ask if there's time in the schedule for a total rewrite.

Nick Gillespie at Reason has a good take:

Compare O'Connor's take to that of 85-year-old Justice John Paul Stevens, who tells the two defendants, Angel Raich and Diane Monson (suffering from a brain tumor and a degenerative spine disease respectively) to stop and smell the democratic roses:

Stevens said there are other legal options for patients, "but perhaps even more important than these legal avenues is the democratic process, in which the voices of voters allied with these (California women) may one day be heard in the halls of Congress."

Stevens' comments neatly ignore that the democratic process has in fact already been exercised--back in 1996, when California (and Arizona) passed laws legalizing medical marijuana.

Federalism, meanwhile, dies another quiet death. You know, I've never used pot, but I've been around enough people who have, and I've always failed to see what the big threat is supposed to be. That someone might mellow out for a little while? That chronic pain sufferers might be relieved for a little while? I just have a hard time reconciling this with any real notion of freedom or limited government.

A charmingly perverse case, in which the Court's liberals rule against a cause they almost certainly favor (medicinal marijuana) in order to preserve broad Commerce Clause authority for Congress, while the Court's conservatives rule in favor of "med pot" in order to challenge that broad authority. Another lesson in the difficulty of inferring judicial outcomes from judicial preferences.

This dilemma makes Scalia's potentially the most interesting opinion, and indeed his reading of the interaction between the Commerce and Necessary & Proper clauses is interesting, principled, & perhaps even correct. On a first reading, it persuades me. This case, as Hilzoy noted, is Wickard all over again, & while Janice Rogers Brown might be ready to overrule Wickard, this Court isn't (yet).

I'm with Anderson, at least on the first read-through. The Scalia opinion is persuasive.

Now on to the Kennedy opinion in the cruise ship case . . .

As a compassionate conservative, I fully support the notion that the terminally ill ought to be able to toke up from time to time without federal interference.

Of course, by doing so we might be pulling out a key Jenga piece that might result in a substantial portion of our system of laws lying in a heap of smoking rubble, but so be it. Given the choice between mercy and consistency, always choose consistency.

I've never had a problem with Wickard, but then I've generally thought that the farmer was trying to game the system and got caught doing it. I have to agree that Scalia explains in a fairly coherent manner when the court will allow intrastate commerce or private ownership to be impacted by the interstate commerce clause.

Given the choice between mercy and consistency, always choose consistency.

Wasn't that the attitude of the courts that forced the creation of courts of equity.

"Congress has no compassion, they want the dying to suffer." isn't a bad way to discuss the problem, though. The dying are just another batch of victims of the fake war on drugs.

I've generally thought that the farmer was trying to game the system and got caught doing it.

I always looked at it like the system was pissed that it couldn't game the farmer, and decided to change the rules so that it could.

The Court's move from the "sick chicken" case & its ilk, to Wickard, reminds me of a libertine who gets religion big-time & just goes from one extreme to the other. It's as if the Court were trying to prove just how completely they'd embraced the New Deal approach to federal power.

Not that there's anything wrong with that; I took Bird's "what kind of wingnut are you?" test, & I'm somewhere between Che and Mao, apparently. Despite favoring some restrictions on abortion. I was feeling so centrist lately ....

That Scalia concurrence should certainly join the roster of essential reading when con law professors teach the commerce clause - it strives to answer the very question I was left with after reading Lopez and Morrison: What is left of "substantially affect" in the modern age? A lot more than I thought, as it turns out.

While I do my best to avoid Consitutional Law issues, I could not help but laugh at the analysis of the case at Volokh:

"(1) The five-member majority of the Court simply does not take federalism seriously. Justice Stevens writes that Congressional factual findings are required when there is a "special concern such as the protection of free of speech." Apparently, however, the Constitution's limitations on federal power--critical by any measure to the American system of government--are not a "special concern," or even especially important.

(2) Justice Scalia's concurrence, unlike Justice Thomas's dissent, does not address the original meaning of the Commerce Clause. This reflects a pattern with Scalia, apparent also in his affirmative action, First Amendment, and other opinions: he is much more likely to resort to originalist arguments when they can be used to undermine Warren Court precedents that conflict with his deeply held moral and political views than when such arguments would either undermine his political views or challenge precedents that are not on the social conservative (tempered, as in First Amendment cases, by Scalia's academic elitist solicitude (which I share) for freedom of expression) "hit list.""

It would be equally true to replace the last quoted sentence with one which says that Scalia does not take the concept of originalism seriously, as that the majority does not take federalism seriously. However, it seems that cheap insults are only to be flung at persons who are not generally on your side.

I could not help but laugh at the analysis of the case at Volokh

But you have to give David Bernstein credit, that he nowhere (1) mentioned Israel or (2) plugged his book. Thus, his post falls into an increasingly rare subset.

N.b. that Orin Kerr, for instance, is giving some more thoughtful analysis at Volokhia. Poor Randy Barnett (who worked on the case) will probably weigh in, tho if I were he, I'd be conferring with Johnnie Walker right now.

This and the outcome of the cruise ship case do not bode well for New London, I suppose. Who needs enumerated powers anyway?

I am proud to learn that we are as committed to victory as ever in our endless and obscenely costly war against tie dye and Sun Chips.

Excuse me, I'm going to be profane.

Goddamit. People I care about have really benefitted from the Oregon medical marijuana initiative - it's done great things for friends with asthma, glaucoma, and the aftermath of chemotherapy. (No one person had all three of those, mind.) This makes their lives harder, for no compensatory advantage to the public well-being.

Remind me again why marijuana is illegal in the first place, medical or otherwise? Like Phil I've been around enough pot-smokers not to see the big deal in marijuana use; and as for marijuana abuse, well, two years as a bartender in a college town eviscerated whatever illusions I might have had about the niceties of alcohol. So I guess my question is: Is there a moral (or even legal?) principle that allows one to consider alcohol an intoxicant suitable for unfettered public consumption, but which classifies marijuana as a dangerous narcotic worthy of Federal prohibition?

I'm not up on the constitutional issues, but I do wonder why it was necessary to prosecute this case, and similar ones, at all. Frankly, that decision strikes me as abominable.

Meanwhile, I would like to see some action from sensible people in Congress, if there are any willing to stand up for decent treatment of sick people, legalizing medical marijuana. I'm not holding my breath.

Anarch, marijuana is illegal for two historical reasons.

1. It was the drug of choice for Hispanics and black people in the early 20th century, before it caught on with whites. Boring old institutional racism did the rest.

2. Hemp posed a challenge to the paper industry on several fronts. Banning recreational use of marijuana was part of a containment strategy.

Once illegal, of course, it remained illegalbecause it was illegal, and few politicians want to be seen as soft on drugs.

Well, there's also the added benefit that although one can grow barley, corn, rice, etc in one's own yard, field, or window-box, the extraction of malt sugar, distillation and aging of the aforementioned into something palatable requires a bit in the way of machinery. Even the making of beer requires some infrastructure, not least of which is the malting process itself. And to top it off, the yield per acre, in terms of intoxicant, isn't all that great.

If I were a betting man, I'd bet that the major distilleries, breweries and places where they are consumed lobby vigorously against the legalization of marijuana. What's an utter mystery is why the junk-food chains aren't lobbying equally hard for legalization. I mean, imagine millions of people stricken with the munchies...

Bruce: Once illegal, of course, it remained illegalbecause it was illegal, and few politicians want to be seen as soft on drugs.

That was the question I meant to ask, sorry; the early history of anti-marijuana legislation is interesting but (one would hope) no longer germane. And while bureaucratic and political inertia are well and good, what I don't understand is how on earth the American public can be so... gullible? as to believe that legalizing marijuana is somehow being "soft on drugs" in any negative sense of the term, whereas the same is not at all true of alcohol.

Slarti: What's an utter mystery is why the junk-food chains aren't lobbying equally hard for legalization. I mean, imagine millions of people stricken with the munchies...

"Imagine"? ;)

what I don't understand is how on earth the American public can be so... gullible? as to believe that legalizing marijuana is somehow being "soft on drugs" in any negative sense of the term, whereas the same is not at all true of alcohol.

maybe this is elitist of me, but after the Great Iraq Salesjob, i'm pretty sure the American public is at least gullible, if not willfully ignorant.

The next time one of the flock of lefty pundits sneers on a panel show about Thomas being a brain-dead ideological clone of Scalia, I'm going to think of this case and snicker loudly.

Anarch,

Bruce's first historical point is crucial:

It was the drug of choice for Hispanics and black people in the early 20th century, before it caught on with whites. Boring old institutional racism did the rest.

The result today is that the distinction is heavily a matter of class, not logic. The right people use alcohol, lowlifes (except for the right people's kids) use marijuana. And it's going to stay that way, of course, as long as marijuana is illegal.

The result today is that the distinction is heavily a matter of class, not logic.

While you're absolutely right about its origins, I will put money that that's false today, either as economic fact or as sociological perception. I might, however, buy the reformulation that use of one or the other might cause the user to be regarded in a different light -- but that observation doesn't track with either race or class* IME. [Though it does correlate remarkably well with age; pot seems to be a "young person's drug" in a way that, say, alcohol is not.] That's why I'm so confused: given the number of people from all walks of life who have either a) used pot or b) know someone who used pot with little ill effect -- on the order of a hard night's drinking, say -- why is there such an intense desire to keep it illegal? Why does there seem to be such a vested interest amongst the populace in demonizing it? Entrenched interests, e.g. brewing companies, FBI drug czars, etc., that I can understand; I can't understand why the mass of ordinary people are playing along with them.

I should be clear that I don't really have a dog in this fight. I've quite literally been offered marijuana more times than I can count and I've turned it down every time to no ill effect. [Just Say No!] I just think it's remarkably stupid that all my friends (and many of my, um, less well-liked acquaintances) are all Federal lawbreakers over something so trivial, and it seems like we could be doing much better things with our time and money.

* I'm not sure what you mean by "lowlifes" but I'm fairly sure that's not a class-related descriptor. Part of the problem, of course, is that American classes are so damn fluid and ill-defined (even though they're omnipresent) that we could simply be talking at cross-purposes here.

In fact, open question to the public here: how many of you have either used marijuana yourself, or know people who have, that have suffered no worse effects than a night of heavy drinking? For that matter, how many of you know someone whose life was ruined by alcohol? Or by pot?

[Feel free to throw in cigarettes too, but the usual anti-drug message applies more to the intoxicating effects of marijuana than its long-term cancer risks so I've been omitting those comparisons.]

I'll go first: I've never toked myself, I've known literally dozens (probably hundreds, actually) of people who have, and although there have been some people whose personalities changed due to their habit -- partly due to the weed, largely because of the marijuana subculture -- I've never known anyone's life to have been ruined by it. I do, however, know at least three people whose lives were ruined by alcohol (as in, drank themselves to, or close to, death). I also know a couple of people whose lives were, well, severely bent out of shape *cough*accidentalpregnancy*cough* by a combination of alcohol and pot, though it's almost invariably been a heavy dose of the former with a light smattering of the latter.

Anyone else?

I'm going to have to re-read the opinions more carefully at some point, but on initial reading it seems to me that the Scalia concurrence, while very clever, is probably weaker analytically than the others, and O'Connor's dissent almost reads more like the opinion that you would expect Scalia to have written if the commodity in question were something other than marijuana. In any case, they're interesting opinions to read, and while I'm not happy with the result, I'm inclined to think that it's legally correct and that the place to try to fix it is in Congress. Not that that's going to work, but in 2006 the world may be different.

I think part of the hysteria in the 60's and 70's about pot was rooted in Calvinism. There were too many people in our society who just couldn't stand the idea that people might get high for fun, and not suffer horrible consequences. They didn't mind people getting high--they just couldn't stand the honesty. Respectable adult beer and cocktail drinkers said they liked the taste, they just drank to relax, or they were just being socialable. They didn't say, "Give me a beer, I want to get wasted." Advertisements still don't say "Buy Coors-It Will Get You Drunk faster". Pot smokers, on the other hand, have never smoked for the taste or the smell or any side issue--they smoke to get high.
Nowadays, pot is, as the poster upthread said, illegal just because it is illegal, and no one wants to open themselves to the political attacks they'd get if they tried to change it.

This decision was pretty predictable, and would have required a major shift in the Court's view of Federal power to reach a different result.

The next time one of the flock of lefty pundits sneers on a panel show about Thomas being a brain-dead ideological clone of Scalia, I'm going to think of this case and snicker loudly.

Ha, ha. He's only brain-dead rather than a clone (which if he was, would presumably have given him at least some of Scalia's brains).
______

I'm not up on the constitutional issues, but I do wonder why it was necessary to prosecute this case, and similar ones, at all.

Actually, the plaintiffs (two women who were medical marijuana users) brought the case to invalidate the law -- they were not being prosecuted (yet).

one nice thing about the Scalia opinion is that it's the final nail in the coffin for SH's ongoing quest to have anyone believe that Scalia (or, for that matter, anyone except maybe Thomas) is a principled originalist.

between his opinions in Roe and its progeny and now Raich, it's perfectly clear that the intellectual leader of the conservative faction is as results-driven as the rest of the court.

In answer to Anarch's poll: I smoked pot off and on for about thirty years with no bad effects. I never formally quit--I just got too old and no longer had any connections.
I have never known any person who had a problem exclusively with pot. I have known some people who had problems in general including the abuse of variety of drugs as their way of coping with personality disorders. Also, I remember that the heavy drug users in high school took longer to grow up, mostly because they were too stoned to pay attention to things which needed attenting to. However, when life slapped them upside the head, they did what they needed to do.
I don't think pot is actually addictive physically or mentally. Sometimes people who have problems anyway self-medicate and possible make their problems worse, but I don't think the pot causes the problem.
I grew up in a family that had alchohol problems (my mom), but I have never cared for the effects and drink very little.
My memories of drug-addled high school years are mostly good. I'm glad I was the right age at the right time and inhaled.

Doesn't the demonization of pot set up the idea that alcohol is ok (or cigarettes too for that matter)? By being strict with this, it allows the powers that be to ignore the problems of alcohol and tabacco. Also, as a 'recreational' drug, it would take a lot of effort to really make people hit the streets and demand its legalization (medical pot is the place where that pressure begins to occur)

I admit to partaking in my college days (maybe that's why I stayed in college so long), but I do realize now that it took the edge off of my memory, so there are some regrets there, but it's not enough to turn me into an anti-pot crusader.

Well, I smoked it four times. Why four? I wanted to see what it was like, and my reaction to it was (I am told) unusual: I hallucinated and stuff, and so the first two times my much more experienced friends told me it had probably been laced with PCP. Since what I was interested in, basically, was seeing what it was like, and also since I was hung over for days afterwards, I didn't do it any more. I very much regret the lawbreaking aspect of it (this was all ages ago), but not the curiosity-satisfying aspect. Hallucinating while one is working very hard on the Critique of Pure Reason is an experience not to be missed. (I remember thinking: so this is what happens when you alter the conditions of the transcendental synthesis of the imagination! as I consumed an entire jar of peanut butter.)

I have known no one whose life was ruined by marijuana, but I have known people whose lives were -- well, maybe not ruined, but badly damaged by alcohol. Also, as best I can tell from observing other people, taking LSD over an extended period does something very odd to the brain. Not something good, either.

(Just now, in the last five minutes, the sky completely clouded over and became a leaden gray, the wind really picked up, and the enormous Norway spruce trees outside my window started flailing their limbs around like members of some strange arborial aerobics class. Very strange and striking.)

Anarch,

In answer to your poll: I've used pot about three or four times in my life, and not in the past thirty years. I don't know anyone whose life was ruined by either pot or alcohol, though I do know some who were headed that way wrt alcohol until they quit. As for tobacco, I had a close friend who was a heavy smoker die in his fifties from lung cancer.

In the matter of class, after reading your comment I realize that class is not the right term for what I was thinking of. It's more like "respectability." This is a bit circular maybe, since part of what makes marijuana disrespectable is its illegality. But it may be that initially class issues prevented legalization, and the process began. And of course there are few, if any, "respectable" types calling for legalization. No corporate chieftains, no religious leaders concerned about injustice or comforting the afflicted.

In the above: "I didn't do it any more" was supposed to mean: after I had figured out that this was, for me, what smoking dope was like, not what smoking dope laced with PCP was like; thus the 4 times.

DaveL, please come back & talk to us about the Scalia op if you get a chance, since some of us may've been unduly impressed.

dmb,

Actually, the plaintiffs (two women who were medical marijuana users) brought the case to invalidate the law -- they were not being prosecuted (yet).

Thanks. I didn't know that (obviously).

I thought that the two women involved were both actually quite ill, hence unlikely candidates to draw attention to themselves this way. Pretty gutsy move.

In answer to Anarch's poll, I've never used pot, although I too have been offered it countless, countless times. Way back in high school, for example, whenever my sister and I went to a concert, she got high, I didn't. She always offered, I always turned her down. (This was in the mid-80s.) She still smokes pot, as well as drinks and smokes tobacco. I'd say her life has been a pretty miserable failure, but not because of drug use; rather, it's the other way around -- her constant substance abuse is an effect of her inability to make good choices.

Meanwhile, I know plenty of middle-class professionals who use pot regularly with no ill effect on their lives: academics, doctors, salespeople, executives, people from all walks of life. The drunks I know, on the other hand, are, well, drunks.

Also, as best I can tell from observing other people, taking LSD over an extended period does something very odd to the brain. Not something good, either.

hey, i resemble that remark

Anderson, no special insight on the Scalia opinion, just that it seemed to me that there was a large edifice of very plausible legal analysis resting on a foundation that struck me as soft. The opinion makes sense if you think of the relevant national market as "all drugs, licit and illicit," but I don't think it's obvious that banning some types of mood-altering substances is necessarily linked to regulating the sale and use of other types of substances, some of which are mood-altering, for medical purposes. At least on a quick read, I didn't see Scalia confronting that issue in a convincing way. You can easily get there by giving deference to Congress' conclusion that regulating all of these substances together is appropriate, but in other contexts Scalia isn't particularly eager to give deference to Congress' interpretation of its own powers, so I don't think that's available here. I will admit that I haven't closely read all of Scalia's federalism jurisprudence, so perhaps he's more principled than I'm giving him credit for, but I'm a bit skeptical. Scalia is very intelligent and writes very well, but I think he sometimes uses his cleverness to keep us looking where he wants us to while he skips over the soft spots in his analysis.

Somewhere above, somebody asked why the animus against marijuana, given how little harm it does. I think the answer is that people who support the current marijuana laws aren't really against marijuana, they're against people who use marijuana, or at least people who use marijuana as perceived by people who vote Republican. It's all about not letting those damn hippies get away with undermining America.

And on the more personal question: I'm a proud member of the did not inhale caucus. I tried once, but I was too drunk, the pipe was too short, and the only thing I succeeded in igniting was my nose hairs. But hypothetically, if it were the case that I had a cancer patient in the family, and if said cancer patient found that marijuana helped a lot with her nausea and anxiety (and Marinol, the prescription stuff, didn't work nearly as well), I might hypothetically serve as a drug courier from time to time, hypothetically even into the chemo ward in the hospital every now and then, and I might hypothetically even be a party to enlisting her elderly aunt and uncle in the same dastardly trafficking if they were going to be in the right neighborhood at the right time to pick up the needed substance from yet another hypothetical family member. And I might hypothetically intend to keep right on doing so regardless of the outcome of this case. But that's all purely hypothetical.

I should also say that I am one of, apparently, a very small number of people who believed Clinton about not inhaling, partly because it was such an idiotic thing to say if it weren't true, but partly also because that's exactly what I did the first time. If you don't smoke tobacco, smoking other stuff is not, imho, intuitive.

In answer to Anarch's poll: I tried smoking pot once, and found I didn't know how to inhale. (I've never smoked tobacco.) Thereafter, the few times I've used pot to get high, I've eaten it. However, I stopped using it a few years ago at a time of major stress in my life, because I discovered that using pot to get high when I'm stressed gives me a significant tension headache. Mostly, to get high, I like wine. (Though espresso is also good.) (And a single shot of espresso, an ounce of hot Cointreau, and a dollop of single cream, is divine.)

I've known a couple of alcoholics and a couple of semi-alcoholics. (By which I mean: clearly have a drinking problem, but keep it under reasonable control.) I know one smoker so addicted to tobacco that he (quite literally) couldn't give it up to save his life, and several more who wish they could give up smoking but haven't been able to.

I've known a fair number of people who take pot, and never known anyone who was addicted to it or had had their life ruined by it in a similar way to an alcoholic.

I smoked infrequently for a few years, but I was more interested in the perspective adjustment and general benefits of mindbending than intoxication, so I moved on to psychedelics (OMG gateway drug), then eventually to nothing at all when that wore out. Didn't take long.

I know many people who smoke at various rates. I lament that one close friend in particular who smokes daily is particularly lacking in drive. . he's a smart guy with a lot of great ideas who vegges out in his house most the time. With a sample size of one, it's hard to know if the pot is a significant cause of that or if he'd have self-medicated some other way without it. Despite being a hard-core legalizationalist, I wouldn't be surprised at all if there were a provable link between long-term marijuana use and energy/motivation/drive loss.

I know a few people with alcohol problems and one in particular who for a while was getting semi-regular ambulance trips because he was destroying his pancreas in an ongoing bid for attention.

I'd articulate it this way: the major problem is that a large number of people feel compelled to intoxicate and otherwise anaesthetize themselves because they are afraid of or incapable of confronting life without it. But if I had to pick an anaesthetic, I'd say alcohol is at least an order of magnitude more poisonous to your body and your mind than pot.

I do enjoy the local ciders you can get in English countryside pubs, though.

However, I stopped using it a few years ago at a time of major stress in my life, because I discovered that using pot to get high when I'm stressed gives me a significant tension headache. Mostly, to get high, I like wine.

I've been finding lately that drinking wine or beer when I'm stressed tends to give me tension headaches, even if it's just a glass or two. Maybe I need to try pot again!

In answer to the poll...

I've tried a wide variety non-addictive drugs and one or two physically addictive ones. I drink little alcohol, quit cigarettes two years ago, and many years ago was hooked on speed for a mercifully short amount of time. Out of all the recreational substances available, I am unashamed to say that I prefer marijuana.

I've done a fair amount of pot in my life. More at some times than others--I'll go months or even years without having any, binge once in a blue moon while hanging out with someone, or more often than not just have a toke periodically in the company of good friends. I've very rarely ever bought any, although out of courtesy I've contributed money to friends who smoke me out regularly (kind of like chipping in on the tab at a bar or restaurant).

We are raising a four-year-old, so right now, and for the foreseeable future, the sensible house rules are: don't bring it in the house, don't come home incapacitated. As a result I partake rarely, when I'm over at a friend's house.

I work at a major e-com site which does not have a drug testing policy beyond "don't come to work high". This is fortunate, as I refuse out of principle to work anywhere that drug tests even when I'm clean.

In my entire life, I have known one person who let his pot smoking get out of control to the extent that it reduced his ability to handle everyday life. After he lost his job, he learned his lesson, did a total 180, and is now amazingly successful--and smoking in moderation.

Needless to say, my opinion of drug prohibition, if properly expressed, is both anatomically impossible and a violation of posting rules.

Since its true confessions time about pot, I thought I add a little more to the story.

I was exposed to it in high school, and have used it once in a while over the years. I have not bought any in at least two decades -- generous friends have offered it to me whenever I have used it. I try to reciprocate with really good red wine.

Srangely, I know far more women in their 40s who smoke pot than men. Maybe its just anecdotal. Most use it on occasion, like occassional drinks. I am offered it and use it on occasion, but not always.

I love to go backpacking and mountain climbing in the Sierras, and many of those friends smoke only when they are in the mountains (and I always bring along at least two bottles of good red wine and some good hard white cheese to share, which adds several pounds to the load). Also popular are mushrooms, but only while in the mountains.

I think of pot as like whiskey -- a powerful drug with major effects. Alcohol abuse tends to be worse, but I have definitely know peole whose lives were damaged by marijuana dependency. Mostly its the emotional dependency and the long term listlessness of those over the edge that causes harm.

Somewhere above, somebody asked why the animus against marijuana, given how little harm it does. I think the answer is that people who support the current marijuana laws aren't really against marijuana, they're against people who use marijuana, or at least people who use marijuana as perceived by people who vote Republican. It's all about not letting those damn hippies get away with undermining America.

DaveL,

Yes. That's a big part of what I was trying to say.

Anarch: “Remind me again why marijuana is illegal in the first place, medical or otherwise?”

Bruce Baugh and Bernard Yomtov already put this succinctly above. I would like to add a couple points. You all might find it interesting to read some of the debates that took place in Congress during the 1930s when MJ was a hot topic. For some of those opposed to it, the argument was that black men smoke pot, go crazy, and rape white women (I am not making this up). My figures on this are fuzzy since it has been a few years since I looked into this, but since the War on Drugs became prominent under the Reagan administration, the number of people in prison has doubled from about one million to 2.2 (?) million today. Roughly 3/4 of those incarcerated are black, and around 3/4 of the total prison population are there on drug charges.

Apart from the race and business issues, there are also factors of culture and a prohibition mind set in America. Western culture has no place in its practices or rituals for MJ as it does for alcohol (e.g. communion). Upon arriving at my permanent duty station while in the Army, the company First Sgt. advised us all to watch our drinking since the bulk of his discipline problems were alcohol-related. And from my subsequent experience as well, if a soldier missed formation, got in a fight, or destroyed property (one weekend we had fun setting off wads of C-4 in our barracks room) the drug culprit was not MJ but alcohol. So why were we all pissing in cups every two months? Culture.

MJ is often referred to as a “gateway” drug, and this argument, unbelievable, still has a lot of power. I used to think that this might have been based on faulty conclusions (e.g. interviews of patients in Methadone clinics revealed that the majority of them had tried pot, therefore . . . ). No. Harry Anslinger, first Commissioner of the U.S. Bureau of Narcotics, made it up. Well, not really. It is actually a continuation of the “dry logic” of Prohibitionists (one glass of whiskey = broke and face down in the gutter a week later). This is the “logic” of fundamentalists who have no room in their thinking for middle ground or moderation (to be fair to them, alcohol has often been a major problem in America’s past). For those not of the extremist persuasion, this notion gets pushed in those wonderful ads from the Partnership for a Drug Free America folks who, I gather from personal experience with some of them, have no interest in understanding drugs, concern themselves with preaching to the choir, and suffer under the delusion that drugs seek out people as opposed to the other way around.

(My favorite ad: The drug dealer who hands out free samples on the school playground and then shows up later to peddle to any new customers who, “hooked,” come back for more. This is how businesses operate – you know, the little packets of Prell shampoo in the mailbox (or the mountains of free samples of prescription drugs handed out to the medical profession by pharmaceutical companies (my dad’s a sawbones)) – not drug dealers.)

A final thought perhaps relevant to the SC decision: the continued illegality of certain drugs can operate as a control mechanism since one of the primary functions of government is control of the governed. These may be some of the reasons why there is as “intense desire to keep it illegal.”

Slartibartfast: Yes, you would think fast food companies would be all over its legalization.

Hilzoy,
It's funny you should mention reading Kant while stoned. I used Kant as a justification to try drugs. (I suppose confused Mormon adolescents will latch onto any excuse...)

For the poll: I was a major dysfunctional pothead from 69-83. 3 stints in rehab. My boomer share of psychedelics, some experimentation with hard drugs and needles, never liked alcohol at all. Definitely self-medicating, been sober since 84 with careful stress management. No further comment at this time.

Have very mixed feelings about today's decision, of course. Scalia's decision should be read carefully, because I think its analysis will become increasingly important with the addition of a couple of conservative judges. I think a goal is to reverse Roe, and then pass national abortion legislation, and federalism questions will be relevant.

In re Anarch’s open question on personal MJ use:

I’ve probably used MJ a few dozen times over the last (Good God?!) . . . almost 20 years. Nothing in the past year or two; haven’t had the itch. On drugs in general, I have never had a bad experience with any of the drugs I’ve taken (not that that’s covered a wide spectrum).

Two points in support of MJ:

One of the best times you can have is to get together with a bunch of friends, order some pizzas, get stoned, and watch a funny movie (I highly recommend a book called “Baked Potatoes: A Pot Smoker’s Guide to Film and Video,” even for those who don’t). Incidentally, contrary to some opinion by those who haven’t tried it, MJ does not make everything funny or more enjoyable. MJ makes good things better and bad things worse. Try watching one of those shop-at-home channels high. You will need to spend the next day in a dark bedroom curled up in the fetal position to recover the abject horror of that experience.

Secondly, I have found that MJ is a useful tool for problem solving. I know, this sounds counterintuitive. Often, the influence of MJ has helped me understand an idea, personal behavior, relationship, or any number of other things by seeing the issue in a new way. When this happens, I try to write down my thoughts and then review them later when I’ve sobered up (this is necessary to vet the crazy ones). Most of the time, I’ll be damned if the new insight doesn’t hit the nail on the head.

In light of having just read the comment by Bob McManus, I see that my previous post may have been in poor taste. My sincere apologies, if such are necessary.

otto: You all might find it interesting to read some of the debates that took place in Congress during the 1930s when MJ was a hot topic.

I have, actually, along with most of the relevant legislation. That's part of why I'm so perplexed at marijuana's continued prohibition: none of the original social arguments (racist fears, "Reefer Madness" {which DVD I own, btw, $3 well spent}) hold water, and I'm none too convinced that the economic arguments (paper v. hemp, in particular) obtain either.

Western culture has no place in its practices or rituals for MJ as it does for alcohol (e.g. communion).

That's true but not, I think, particularly relevant: intoxication isn't a part of communion. It is, however, most definitely true that there's a long tradition of social interaction involving alcohol in the West and that's a more fruitful avenue IMO.

And bob, sorry to hear it. I suspected we'd have at least one among our number, but it still stucks to be right. FWIW, the reason I haven't used pot isn't that I'm morally opposed to it (rather obviously), but that I suspect that pot would be precisely targeted to my weaknesses. I'm weak enough already without drugs; I don't need to be weakened further.

I note it's primarily those of liberal or libertarianish persuasions responding to my impromptu poll. Conservatives, what are your stories? Slarti? Sebastian? Charles? For that matter, other libertarians like von? Anyone else in the neighborhood?

I think it's a very self-reinforcing system. Alcohol has a place in most human social scenes and has for a very long time. A majority of its use is the moderate, inhibition-lowering variety that flavors, rather than replaces, social interaction. Alcohol prohibition wasn't sustainable because it ripped a huge chunk of 'normal' social interaction. Pot *can* be used that way and to my understanding is used that way in more permissive environments, like the Netherlands or Vancouver. But where pot is illegal it's used more furtively and more often with the purpose of getting more stoned, and doesn't get a foothold in 'normal' social experience.

Never smoked dope, or any other illegal drugs. When I was a teen (i.e. '70s) I saw a fair number of kids get into a psychological dependence w/ pot--they would start out bookish and geekish, shy and unsociable, and turn to pot at some point. Either they would just get more mole-like and introspective, or they would find a sociable streak that required pot to bring it out (or so they seemed to think). Either way, too many of their teenage years spent with dope.

Anyhow, it was very easy for me to see that I was bookish, geekish, shy and unsociable, and I just didn't want to conform to the rest of the type. Plus I hated the smell. (Hate the smell of cigarettes, too).

Alcohol is pretty clearly worse, I suspect, in its damage to people's lives (and property and offspring and everything). If you look around the world, I think there is a fairly linear relation between increases in alcohol consumption and increases in human misery--Russia being a prime example of an entire booze-soaked country that needs an AA intervention.

For my money, I am still hoping that the Noble Experiment will be revived a few millenia down the road, when we're a bit more ready for it. (I'll concede it was a disaster when introduced without adequate popular support). Yes, I like the taste of wine or beer now and then, but the amount of pleasure produced by alcohol is minuscule compared to the amount of misery it produces. The human race will be far better off without it, so long as the ratios of drunks to moderate users remains as it is.

(I mean that seriously; if in a few thousand years we have managed the trick of pharmaceutically or genetically making it impossible for people to be affected by alcohol in other than mild, moderate, and non-addictive ways, then the Noble Experiment loses its attractions for me. But given the current distribution of metabolic functioning in the population, there are too many drunks and potential drunks in the world, no matter how they are socialized. "Drink responsibly" is drug-pusher's propaganda.)

I don't know the history of marijuana prohibition in the US, so I'll take on faith the accounts offered up-thread, i.e. that it was race-based, class-based, and reactionary. But as a beleaguered, would-be, Temperance Unionist, let me offer a different rationale for drug laws: alcohol is bad enough, and politically we learned we can't do anything about it. Can't we at least hold the line at other drugs that are not as socially-entrenched as alcohol is? The devil we know is bad enough; are we going to let him invite all of his friends, too?

This rationale for marijuana prohibition is probably misguided and based on factual errors (e.g. the error of thinking that marijuana use, even if fully incorporated into the culture, would be as harmful as EtOH use; the error of ignoring the social costs of the drug laws themselves, etc.). But as a reason for advocating drug prohibition, it is not fundamentally racist, xenophobic, and so on.

Always worth considering the possibility that your opponents have above-board motives, in addition to all of their nasty ulterior ones. Some of the people who supported drug prohibition and still support it are not closet racists, but people who fear the very same kinds of social damage you fear, i.e. broken marriages, abandoned children, wasted lives, shattered dreams.

Anarch--
" I suspect that pot would be precisely targeted to my weaknesses. I'm weak enough already without drugs; I don't need to be weakened further."

Right--and I'm slow, lazy, and fuzzy-minded enough w/out dope and alcohol. That's why the only drugs that have ever struck me as even *theoretically* tempting are the members of the speed/coke families. At least I can see the *appeal* there. (as well as the really ugly reality). But 'ludes? downers of all sorts? Cripes--I don't need chemical intervention to be dumbed-down and flaky--I've got that covered on my own.

Anarch: “That's true but not, I think, particularly relevant: intoxication isn't a part of communion. It is, however, most definitely true that there's a long tradition of social interaction involving alcohol in the West and that's a more fruitful avenue IMO.”

Yeah, good point. I was thinking of the ritual aspect more generally; the use of drugs as part of religious experience (e.g. peyote, mescaline, etc.).

Tad Brennan,

Yes to the “above board motives.” Many in the temperance movement were reacting to the very real scourge that alcohol presented and had the betterment of society in mind not the control of behavior for its own sake.

Always worth considering the possibility that your opponents have above-board motives, in addition to all of their nasty ulterior ones.

Tad, I understand where you are coming from, but my impression was that this was discussion of the history and how we have gotten to where we are today. I have no doubt that eugenicists, to take one example, had above-board motives, but that doesn't mean that the cumulative effects of their programs shouldn't condemned.

liberal japonicus--

I'm not sure we're disagreeing, either about judging the past or about picking a path for the future.

In suggesting that some drug-prohibitionists had non-racist motives, I was hoping to contrbution exactly to the "discussion of history". Is it coincidental that the big anti-weed pushes came after it was clear that Prohibition was a failure? That would fit well with my suggestion that at least *some* of the people who voted to create or stiffen laws against other intoxicants were motivated by the thought "we failed at our attempts to tackle Big Alcohol, but maybe we can at least draw the line at some other things relevantly like it, which don't have the social clout that alcohol turned out to have." (And then it also sounds like some of them were ugly xenophobes and racists).

Should the "cumulative effects of their programs" be condemned? Dunno. I'm still very ambivalent about legalizing marijuana and other drugs. As a big-govt liberal, I don't have any principled sympathy with the libertarian line that individuals ought to be able to destroy their lives any way they like. Me, I'm more attracted by the public-health model that identifies threats to welfare, does cost-benefit analyses, and mobilizes govt. resources to make lives better. (It makes me a little queasy to read Andrew Sullivan quoting Milton Friedman, that old Ayn Rand acolyte, on the evils of drug laws.)

On the other hand, as a public-health, cost-benefit question, it seems pretty clear that the costs of the War on Drugs have been appalling. We have to imagine that the public-health costs of complete legalization would have been *really* bad, i.e. Reefer Madness stuff, in order to make it as bad as the costs of the WOD have been (think not only the incarceration of 1 in 4 black men, but also narco-terrorism, the destruction of the Colombian judiciary, etc. etc.)

I am ambivalent about legalization *exactly* because I have trouble seeing how the numbers come out. In the absence of a clear cost-benefit analysis, then some people fall back on ideology, e.g. personal choice should trump. Some might fall back on Mr. Holsclaw's Chestertonian conservativism, i.e. that we ought not to change the current state of affairs without greater assurance that chaos will not ensue. I fall back on dithering, and all of the other things that make quaaludes superfluous to my temperament.

I really don't know what to think about prohibition. As for the more direct topic of the post, I suppose I am not that keen on federalism as an abstract principle, in any case. Bad interpretation of the Constitution is always reprehensible, of course, but for federalism itself I hold no particular brief. I think Matt Yglesias is right that it has more often been the enemy than the friend of liberal progress.

Never tried MJ. I don't like the idea of the downer drugs (including drinking)--most of my fun is in my head. I don't like the uppers for the same reason I don't drink coffee--I'm already about 3 steps to far on the hyperactivity scale. The only class of drugs that seemed remotely interesting was the psychedelics. Ecstasy is half speed so it was out. 18-24 hours is too long so LSD is out. Which leaves mushrooms. But I don't believe the question was about mushrooms. :)

As for federalism, I believe that Kerr has a good comment about it on Volokh:

Ernie Young's post at SCOTUSBlog raises a good point: while commentators tend to refer to "the Court" as a single entity, the Supreme Court consists of nine people with different views. In nonunanimous cases, "the Court" beomes a shorthand for the group of Justices in the majority.

In federalism cases, moreover, there is no clear majority on the current Court. Four Justices — Stevens, Souter, Ginsburg, and Breyer — more or less share the same basic view that the Court has little to no role enforcing federalism constraints. The other five Justices would impose some limits on the scope of federal power, but don't really share common ground on exactly what those limits should be.

Although classifying each Justice is quite difficult, a very rough first cut might be that Justice O'Connor tends to focus most on preserving a role for the states; Justice Kennedy on recognizing the dignity of the states and preventing federal overreaching; Rehnquist on restoring pre-1960s limitations on federal power; Scalia on finding and enforcing textual principles for limiting federal power; and Thomas on restoring an originalist vision of the Constitution. These approaches can overlap, and Justices might sign on to opinions that aren't exactly their cup of tea. But often they don't.

The mathematics of federalism on today's Supreme Court, then, is that the four Justices who do not favor judicial enforcement of federalism constraints only need one additional vote to form a majority. Conversely, for the Court to rule in favor of a federalism limitation, common ground must exist that ties together the differing viewpoints of all five of the right-of-center Justices. The odds are that the former will happen more often than the latter, which is why victories for federalism principles have tended to be rare and on relatively narrow (that is, symbolic) issues.

I'm not sure why people upthread seem to think that Scalia's vote invalidates his embrace of textualism. He is a textualist, not an orignalist, and thus more amenable to jurisprudence arguments. The commerce clause has been greatly changed by the easy of interstate commerce in the modern age, and by years of willful neglect by the Court. Making a dramatic change in that area would be very difficult and earthshattering--much more so than say overturning Roe. Overturning Roe would have a fairly limited scope with respect to law and a fairly limited practical impact in most states after a few years of democratic process. Overturning the commerce clause jurisprudence would make for a much more sweeping change. Since the limits of the commerce clause are not obvious from the text and it isn't obvious how to apply it in an internet and automobile age, relying on precedent (even if you suspect that it may have drifted the wrong direction) is not a repudiation of textualism. It might be a repudiation of originalism but Scalia is not an originalist. Thomas is much closer to that, and as you can see he voted against the regulation.

"...in poor taste. My sincere apologies, if such are necessary."

Nah, having at periods during the 70s been on high dosages of Haldol and Stelazine, the pot, as self-medication, was much more fun. No tragedies or heroics floating around here, and ad hominem arguments involving paranoia or insanity are rendered useless, having lived with "So What?" for a lifetime.

Ain't very many of us without a cross to bear.

Not reading a single prior comment and only glancing at the USSC decision, I think the ruling was a mistake. States should be able to make their own decisions on marijuana, and I'm generally in favor of it being legalized for adults. FTR, I haven't smoked a joint since the 1980s (but I still have fond memories of laughing fits, munchies, expanded consciousness and great sex).

"Overturning Roe would have a fairly limited scope with respect to law and a fairly limited practical impact in most states after a few years of democratic process."

I still think Scalia's Commerce interpretation leaves, intentionally, abortion possibly subject to federal regulation. Which raises the question as to whether the various late-term abortion laws have been challenged on federalism grounds. Seems today I read something about it being easier for the feds to forbid something the states permit than for the feds to permit something the states forbid. The latter would be granting a substantive federal right.

I suppose also at question would be the precise grounds on which Roe was overturned.

In light of some of the dialogue elsewhere on this blog, it's interesting the level of agreement and civility that this post on Marijuana has generated. Will someone please pass the Funyons and Haagen Dazs.

Dude...like ummm..what was I gonna say? oh yeah..dude like this is ummm a bummer. Mental marijuana is like..ummm...really importanant to like my uncle Ted who's like a vietman vet.

Tad
Apologies for mistaking your point as defensiveness for anti drug programs. I do tend to think that the 'good motives' are often a cover (even to the people themselves) for a desire to punish those who are different. I can't think of a ban that was altruistic at its core. Prohibition might qualify, but it also seems that prohibition was a response to the toppling of the social order after WWI, as well as an attempt to prevent the creation of nouveau riche. Of course, all it did was drive things underground, allowing people like Capone and the Kennedys to make their fortune. However, we don't really stand for the naked hypocrisy of an Opium War any more, which I suppose is progress.

I tend to agree with the ambivalence that you feel, which is probably a strong reason why, to return to Anarch's original query, the ban on mj continues to be so strong.

I think the answer is that people who support the current marijuana laws aren't really against marijuana, they're against people who use marijuana, or at least people who use marijuana as perceived by people who vote Republican. It's all about not letting those damn hippies get away with undermining America

I think that it is silly to assert that all conservatives are against MJ because they hate the hippies. You all haven't noticed that the National Review guys are at least 50% against the Supreme Court ruling. Not to mention the back and forth on Hugh Hewitt's show between Msrk Taylor and Carol Platt Lebou [sp?]. This is a fight for the supremacy of states to goven themselves versus nationwide laws. Plus it is a fight against nanny-state overreaching by our courts. I think that Federal prosecution of crimes that should be better handled by federalism, that is the right of individual states to determine their own laws.

That is why I am for the Defense of Marriage Act, which limits the powers of the courts over state legislatures, and not for some stupid amendment that defines marriage to be between a man and a woman, even if I sort of agree with that point of view.

I thin that the Federal govt has no business mesing around with marijuana laws, any more than abortion laws. These are issues that cannot have a consensus arrived at between people in different states, and therefore should be dropped from the US Congress agenda, and left to the local legislators.

I also think that Clarence Thomas has really grown into his job. "Liberals" (I scored in hilzoy's alternative to CB's quiz as being a teeny bit liberal) were opposed to Thomas because he didn't have published opinions, and wouldn't make public statements during his hearings. Remember, this was after the Robert Bork confirmation fiasco, in which Bork was persecuted because he DID have opinions. Remember, Thomas was a bona-fide Civil Rights Lawyer who had the constraints of a budget and for that reason had to discriminate between frivolous cases and cases that could be won.

Also, I've noticed that very few of the lefties have used drugs to any extent, (versus my frequent dislaimers that I am not some sort of moral paragon - thank God I didn't get the kids that I deserve) so I would assert that they are living in some fantasy world. One benefit of drug (ab)use is that you gain some perspective, like saying to yourself "I can't believe I said/did that. I am SO stupid". The conservative media is having a real substantive debate about the medical pot issue, and I don't see the pros and cons debated about this issue by liberals, only that Republicans are bad.

And even though I was once an associate member of "The Church Of One Sacrament", I will not suggest in any way that Slart take a mountain bike and ride to the back of a cow pasture where nobody can see, after an early morning rain and pick mushrooms for the special spaghetti sauce. If he was tempted to do this, I would point out that the effects could be extremely dangerous for people with hypotension (low blood pressure.) The toxicity will lead to temporary shock, which although most people can handle it with a sweater and a cup of hot chocolate, can be lethal in some cases. If he chose to pesonally pick the mushrooms for this sauce, he should make sure that the stem when bruised turns a bluish green (MOST IMPORTANT), the spores on the gills are black, the cap, while buff colored on the edge has an amber or reddish brown peak at the center. Oh, and the purplish ring around the stem.

But if anyone did decide to do this, then the time afterwards is much more well spent walking on the beach, hiking, riding a bike, or fishing, rather than thinking deep thoughts or sitting in a room.

Anecodetally, a couple of guys I know that had cancer sort of early in life were daily pot smokers. As probably were some of my favorire musicians, Rory allagher, "Lonesome Dave" Preverett and Warren Zevon. I don't think it is altogether harmless.

liberal japonicus--

no harm done.

As probably were some of my favorire musicians, Rory allagher, "Lonesome Dave" Preverett and Warren Zevon

Ahem, I meant, "As probably were some of my favorite musicians, Rory Gallagher, "Lonesome Dave" Preverett and Warren Zevon". It's late.

"... my reaction to it was (I am told) unusual: I hallucinated and stuff...."

Geez, yes, that's unusual.

For the record, but without excessive detail, I'v-- er, a very good friend of mine has smoked pounds over the years. I don't think it's by any means completely innocuous; I could write an essay about my experience of negative effects, which have run, at times (in the case of my very good friend!), along the classic lines: interference with memory, short and long term, excessive inertia, desire to do more and stay inertiaful, munchies and weight gain, problems stopping, and that sort of thing. Nothing worse. (Nothing remotely as dangerous as heavy use of alcohol!) I don't advise heavy use, and I don't advise it to aid clear thinking, nor good spelling. I would note, on the other hand, that somehow I'm often still thought of as an at least faintly bright person, even though a very good friend of mine has written quite a few things while stoned to my gills. (Then there's the whole comparison to prescription drugs; my list is a bit different than Bob McManus's, but the scariest experiences I've had with drugs have come from Ambien amnesia/incoherence, and not anything else, including a couple of dozen acid trips decades ago that a very good friend of mine has told me about [which doesn't mean I don't think Amien doesn't have a useful place!; I'm grateful for it!].)

As an extremely cautiomay note, DON'T EVER EVER EAT A PRETTY WHITE MUSHROOM THAT YOU FIND IN THE DEEP WOODS. Chances are that this is an Amanita "Death Angel" or "Destroying Angel" mushroom, even if it looks like a puffball or something you would buy at the grocery store. Even with a lung, kidney, and liver transplant, chances are you are going to die.

I think the answer is that people who support the current marijuana laws aren't really against marijuana

I think that it is silly to assert that all conservatives are against MJ because they hate the hippies.

DaveC
The elision from 'people' to 'conservatives' is really a problem here. While Anarch pointed out that the usual conservative suspects hadn't posted, I don't think there was any claim about conservatives in general. I think that there is an elision to punishment of criminals, and I would suggest that there are a number of conservatives who are anti-drug not because they are against drugs in a meaningful way, but they don't like the idea of laws being broken. (This is not to say that I don't like the idea, but there are cases where laws function simply to control people)

I would suggest that there are a number of conservatives who are anti-drug not because they are against drugs in a meaningful way, but they don't like the idea of laws being broken.

What I was trying to point out is that at least in the public, published intra-conservative debates, the pro/anti ratio is about 50/50. The liberal agenda of eliminating tobacco smoking in bars (BARS FOR GOODNESS SAKE !!!) has a much higher percentage of acceptance.

DaveC: The liberal agenda of eliminating tobacco smoking in bars (BARS FOR GOODNESS SAKE !!!) has a much higher percentage of acceptance.

And as a non-smoker I have to say... I'm one of them.

Not merely because I would love to be able to go out with friends for the night and come back not stinking of stale cigarette smoke, but also because I feel that it's only fair that people who work in bars shouldn't have to breathe in other people's cigarette smoke all their working hours.

"What I was trying to point out is that at least in the public, published intra-conservative debates, the pro/anti ratio is about 50/50."

I'm not entirely clear what you're going for, but if you're saying that conservatives are 50/50 about, say, the criminalization of marijuana, and we accept that the majority of liberals are opposed to it, then who the heck is in the public that politicans are serving by maintaining punishments lasting decades for possession of three seeds, etc?

This is a topic that libertarians and liberals, overall, as well as a fair smattering of conservatives, seem to agree is craptacular nonsense. Who besides bureaucrats and investors in private prisons thinks these laws are serving the public interest?

The percentage of voting liberals who are against drug laws MAY be higher than the percentage of voting conservatives who are against drug laws, but it can't be much more or we wouldn't have drug criminalization. The reason drug criminalization continues under both Republican and Democratic regimes is because it doesn't neatly fall into the Republican/Democratic spectrum.

I'm, on the other hand, libertarian enough to be perfectly happy to be willing to let the private market settle whether people want to smoke tobacco, or anything else, in private establishments. Just speaking for myself, of course. I'm not willing to, for now, demand that people not have the right to enjoy themselves (and I've never smoked a tobacco cigarette in my life with pleasure, which is to say, I tried three times, and that was enough) to protect the right of others to be employed in a bar without smoke, given that, you know, I don't think that's a right. (I also don't support paying people to stay on the family farm; as a rule, I don't believe in a "right" to a particular form of employment, although, to be sure, there are certainly protections I do believe in enforcing on certain forms of employment protection; but the devil is in the details, which doesn't make for a pithy paragraph, alas, and, yes, reasonable people will disagree about said details.)

Another reason why I think that liberals are living in a fantasy world and I am not:

I maybe will die because of asbetos exposure because I wanted to sell my house to get my kids into a better high school. My old house was practically made of asbestos, and with the latest laws I couldn't sell it without getting rid of the fireproof asbestos wrapping on the pipes leading to my heating radiators.

Here's how I did it:

Find the best damn nose and mouth filter that you can.

Somehow wet the asbestos pipe wrap so that there will not be so much dust.

Wrap it in plastic before you cut it away from the pipe,

Double bag it in heavy duty trash bags.

Throw away the clothes and gloves you were wearing. Double bag them also.

Find a usable dumpster. For me, this was at work on Christmas Eve. The cops came and questioned me, and I was covered with dirt and raggedy clothes, but I had my business card and got away with it.


"The percentage of voting liberals who are against drug laws MAY be higher than the percentage of voting conservatives who are against drug laws, but it can't be much more or we wouldn't have drug criminalization."

Call me a cynic, Sebastian, but the suggestion I was trying to go for is that bureaucratic, corporate, legal, and institutional, inertia, I suspect, count for endlessly more on this topic than mere public opinion.

Which does go to the fact that I agree, up to a point, that "it doesn't neatly fall into the Republican/Democratic spectrum," but, on the other hand, while I can list tons of Democrats I wish to, and when I have a moment to, do assail on this topic (including both Senators from California), it's not as if we don't also have to fight Tom DeLay, Dennis Hastert, Bill Frist, and George W. Bush, just to start, along with too many Democrats.

This is, for sure, a case where the people versus the powerful isn't overwhelmingly partisan. Just depressing. (I still blame gerrymandering and arthritic incumbency as one of the overwhelming ills of our U.S. democracy.)

"Another reason why I think that liberals are living in a fantasy world and I am not...."

DaveC, you went from a) liberals living in a fantasy world to b) you were almost was arrested for violating laws on asbestos, while neglecting c) how you got from a to b.

In other words: wtf?

(I actually spent a couple of years, back around twenty-five years ago, working for a law firm on asbestos cases; this required me to work on, for varying degrees of "work," hundreds of depositions about asbestos; it's, yes, incredibly dangerous; this makes me both upset for your case and upset at the idea that you might have endangered others; it's not a victimless crime at all.)

how many of you have either used marijuana yourself, or know people who have, that have suffered no worse effects than a night of heavy drinking?

i can't imagine how much you'd have to smoke to get a feeling equivalent to a hard night of drinking - a pound ?

The liberal agenda of eliminating tobacco smoking in bars (BARS FOR GOODNESS SAKE !!!) has a much higher percentage of acceptance.

that's not a liberal thing. that's a yuppie thing.

DaveC-

I'm confused about your point. You broke the law and endanged people by doing so, rather than pay for a safe and proper removal of the asbestos. Aren't you the one who is living in fantasy by thinking that was okay?

Conservatives, what are your stories?

Ok, here I am now. Still finishing up the flooring project, and the girls are keeping me busy as well. WAY OT, I overheard them arguing in the bathroom on Sunday morning, and moved in quietly to find out what the source of the dispute was. Here's what I heard:

Emily: It's duck season!

Abby: It's rabbit season!

Rinse, lather, repeat. My kids are being raised right, I tell you.

Ok, to the point: in middle school, I was a complete dweeb (I know, big surprise). I constantly had my nose buried in books, and was taking science lab in lieu of science. I was the only one doing that, which meant that I got to set up and test the science class's experiments, and clean up afterward. That having limited time-suck, there was lots there for me to get into: Van de Graaf generators, Cockcroft-Walton generators, a hand-cranked dynamo or two, powdered metals such as iron, aluminum and zinc, powdered iron oxide, and other assorted goodies with which to, say, build a small thermite bomb and test it, or to test out zinc/zulfur ratios for rocket engines. As a consequence of my obsession with science and technology (actually, just knowing enough to have more fun with it), and as a side effect of being an intellectually cocky yet physically undeveloped little bastid, my friend count was in the low single digits. Then I met Brian. Brian really didn't give a crap about what others thought of him, went armed to the teeth at all times (knives, in bewildering variety), and had minimal parental guidance (I think his dad was an alcoholic, and his mom had left both of them years before). So: he shared his dad's beer with me, and obtained some pot to check out. I tried it; I did in fact inhale, but it didn't do anything for me. Mostly we smoked cigarettes, which was more than enough intoxicant for me. They made me dizzy, but in a lasting and occasionally unpleasant way.

Then one night my sister came home and neither of my parents were around, and she said "want some Thai Stick?", and we smoked a rather tiny amount that got me all sideways. I think there were a few other occasions before I turned 21, and then I was out of college and into the world of security clearances, and that was it for marijuana.

High school was a no smoking zone for me, though. Once I started high school, I joined the swim team and practised with them for a couple of weeks. Cigarettes were completely against the rules, and smoking them was grounds for getting thrown off the team. Still, I tried one after a few weeks of practice, and to the small extent that my lungs had been toughened to accept tobacco smoke by then, all of that had been completely negated by swimming. So, the abdication of smoking was accomplished without much ado. I never smoked enough to develop anything resembling an addiction, and swimming was so much a part of my life for the next few years that I was never tempted to smoke again. In fact, cigarettes nauseated me from then on, which also served to reduce any inclination I might have had to indulge in ganja.

Oh, and I tried hash once right before I got out of college; it was pretty much the same as pot but much more potent. I was never hung over at all from any of this (which, altogether, probably comprised maybe a dozen episodes); the worst that happened was I slept really, really well afterward, and probably ate rather more than my body needed a few times.

As for other drugs, I've had access to practically anything you might imagine, and haven't tried any of it. Hallucinogens scared the hell out of me, and stimulants...well, I never felt the need to have more get up and go than I get from coffee. I do enjoy the occasional drink, and from what I recall of pot, I think I'd probably use it on occasion to de-stress, particularly when there's back pain involved. But since I've got a job with all sorts of constraints that prohibit me from using illegal drugs, defying the law is out. Having kids is also a major disincentive.

And that's all I've got to say about that.

Oh, the "practised with them for a couple of weeks" shouldn't be construed to mean that I only practised with them for a couple of weeks. I'd intended that to be the lead-in to where I discovered I couldn't smoke and swim, and I had to choose. The choice wasn't difficult.

Some interesting data, just for context. Short version? Very slight majority for keeping pot illegal, very large majority in favor of allowing medical use. Sadly, no partisan breakdowns.

This statement: "The percentage of voting liberals who are against drug laws MAY be higher than the percentage of voting conservatives who are against drug laws, but it can't be much more or we wouldn't have drug criminalization." doesn't make a lot of sense, unless SH is simply equating "democrats" with "liberals" and calling it a day.

In any event, while it is true the drug issue cuts across political parties to some degree (for example, African Americans, a traditionally democratic constituency, generally favor harsher illegal drug enforcement policies that democrats as a whole), I don't think its controversial to say that the drug issue is part of the traditional Republican law-and-order platform. The conservative support for legalization will tend to get overstated if one reviews only the libertarian-trending conservatives on the Web. There's a whole bunch of regular old Republicans in my family, and they all pretty much think that smoking pot makes you a useless hippie who should be thrown in jail until you get a haircut and find a real job.*

As for Anarch's question, I'll agree with whoever it was above who said that they used to use it, but such use tapered off a while ago, because as I approached my 30s, I didn't have any connections anymore, and the experience, while fun, just doesn't seem to sink its teeth in deep enough to make me move any mountains or take any risks to get it. This has been, almost universally, the experience of my friends who used to smoke it. It just kind of leaves the scene, until you realize "Hey, it's been like five years since I was high. Huh." And then go back to cleaning the strained peas off the high chair. The one exception I can think of is a friend who pretty much just fell off the cliff into all kinds of problems with alcohol, and narcotics. Did he smoke pot too? Yeah, but I'm hard-pressed to say 'twas the pot that did him in.*

* I know, these are the worst kind of Jane Galt fouls - "I am going to make my point by relating a personal anecdote that happily supports my position in every respect!" But, what the hell.

The percentage of voting liberals who are against drug laws MAY be higher than the percentage of voting conservatives who are against drug laws, but it can't be much more or we wouldn't have drug criminalization. The reason drug criminalization continues under both Republican and Democratic regimes is because it doesn't neatly fall into the Republican/Democratic spectrum.

One quick data point, Sebastian. Barney Frank has a bill, originally introduced some years ago, to legalize medical marijuana. Of the co-sponsors only a small handful are Republicans.

Not reading a single prior comment and only glancing at the USSC decision, I think the ruling was a mistake. States should be able to make their own decisions on marijuana

This is actually two different points. The decision is about the extent of federal power, and pretty well settled notions about how the read the interstate commerce clause give the Congress the power to enact laws forbidding marijuana (including medical marijuana).

Your second point goes to the wisdom of Congress actually doing that, as opposed to the states making the decision. That practical and political consideration is hardly grounds for the court invalidating Congressional action. The court's sole concern is over the legitimacy of Congressional power in this sphere -- not the wisdom of how they exercised it.

this makes me both upset for your case and upset at the idea that you might have endangered others; it's not a victimless crime at all.

See, I am not so sure that I committed a crime, and endangered others, although new standards for real estate sales put me in a situation in which I had to choose whether to endanger myself or lose my meager life's savings. Bear in mind that all this stuff was in the crawl space, where nobody goes. The elementary school I attend had all the pipes leading to radiators covered with the stuff. At one time, using asbestos in construction was considered a very prudent thing to do.

I guess my point is that there are laws that are intended to protect people that may have the opposite effect in some cases. Denying very sick people MJ, which may be the best means of relief from nausea, is one of these cases.

DaveC, you most certainly committed a federal crime or two. You illegally discharged a highly regulated contaminant, in violation of the Clean Air Act, CERCLA (Superfund law), and/or RCRA. Since I don't know what state you live in, I can't comment on state felonies.

SH, the great thing about being a "textualist" as opposed to an "orginalist" is that, like Potter Stewart's definition of pornography, you only know it when you see it.

Scalia, when he is so inclined, can write fascinating disquisitions on history. His choice as to when history applies and when it doesn't is, apparently, an internally consistent theory of constitutional interpretation, known as "textualism".

hogwash.

frankly i prefer the realists/positivists. they are at least willing to state openly that their own prejudices drive constitutional interpretation. Relying on originalism except when it's too hard is plain old hypocrisy.

You make the difference between textualism and originalism too hard. An originalist tries to get into the framer's minds and rule as they would have wanted to. A textualist doesn't. An originalist is tied to an old understanding of the issues a textualist is at worst tied to an old understanding of the words in the statute. A textualist is much more open to jurisprudential arguments because how other people (especially near the time of ratification) interpreted things is a good indication of some of the more interesting subtleties of the words. An originalist is less humble about jurisprudence because an originalist thinks they got into the minds of the framers.

"frankly i prefer the realists/positivists. they are at least willing to state openly that their own prejudices drive constitutional interpretation."

I don't prefer the realists because if you are going to be openly driven by personal prejudice in opposition to the democratic branches, we might as well just have tyrants.

There is, for those still reading this thread, an interesting discussion here on who should interpret the constitution, and why.

the problem with your defense of textualism, sh, is that it bears no relationship to reality. Raich is a picture-perfect example of the thesis that there is no such thing as originalism. There are only conservative judges who invoke it at their convenience.

Now, there's nothing wrong, in my world, with using multiple tools to construe the Constitution. But originalists disagree; to them, their view is the only one legitimate method of Constitutional interpretation. There is something profoundly wrong with so-called originalists lambasting the rest of us for treating the Constitution as a Rohrsach inkblot, when they abandon their own philosophy when the going gets tough. It's called hypocrisy; while it's bad enough from bloggers and politicians it's really nasty from supreme court justices.

What precisely is it about Scalia's opinion that causes you to suggest that he abandoned the principle of textualism? I think there is a colorable argument that Wickard is just wrong, but it is both long accepted precedent and theoretically defensible from a textual perspective--especially when combined with an almost century-long history of the subject.

SH, because the very purpose of textualism is to provide ex ante assurances regarding the outcome. I invite you to provide links, say around the time of the oral argument in Raich, that accurately predict BOTH the approach that Scalia would take in his opinion and the outcome.

(for the non-lawyers reading this, lawyers frequently argue that the process by which a decision is reached is just as important as the substance of the decision.)

your defense seems to be: Scalia has always said precedent was important.

to which i continue to reply: So? For a guy who argues that a judge's job is purely formalistic, he's awfully unclear as to when precedent should be followed and when it should be abandoned. in fact, he's so unclear that a strong argument can be made that he does nothing more than vote his preferences while beating up his fellow judges for doing the same.

on a completely unrelated note: so long as the justices are not completely craven, the Endangered Species Act and the other federal environmental laws (CERCLA, CAA, CWA, RCRA etc) should be beyond challenge on Commerce Clause grounds.

if it is Necessary and Proper to prevent Ms. Raich from growing her own dope as part of an overall scheme to regulate drugs, then it is also Necessary and Proper to prevent people from killing the Delhi (pronounced dell hi) Sands Flower-Loving Fly.

Gary: it was unusual. The third time (the first when I was absolutely sure of its source, and thus knew that PCP was not an issue), among various other things, I sort of saw something like a tic-tac-toe board coming towards me, or maybe me heading, roller-coaster fashion, towards it, and when I got to it my identity split into nine, and continued to do so each instant, with my consciousness being most closely associated with the central one. It wasn't scary or anything; in fact, it was sort of nice, like having lost of extra pairs of hands. While I was making Jiffy Pop, for instance, I was convinced that another of me was cleaning my room.

That in addition to trails, the floorboards moving back and forth like parts of a Nordic Trac machine, and so on. And of course the "memories" of things in the future. All very odd.

DaveC: "Also, I've noticed that very few of the lefties have used drugs to any extent, (versus my frequent dislaimers that I am not some sort of moral paragon - thank God I didn't get the kids that I deserve) so I would assert that they are living in some fantasy world." -- Huh? For one thing, what does not having used many drugs have to do with fantasy worlds? For another: for the record, while I have never used drugs other than the four times just mentioned and one experiment with Percodan, my friends in college tended either to use none or to use them to wild excess. That being the case, I have a lot of experience with being around more or less any drug you'd care to mention, and specifically a lot of knowledge of which ones lead to trouble and which, as far as I can tell, don't.

Insofar as one can tell from blog posts, I tend to really like you. But every so often you say these things -- that the liberals who post here hate America, that we live in a fantasy world, etc. -- and I'm not sure whether you're trying to tweak us by saying things that are actually quite insulting, or whether you really think them. I mean, I wouldn't try to tweak you by calling you a cryptofascist, or anything genuinely awful like that. Am I missing something?

Also, how did your boss's attempt to tell you how to do your job go?

"in fact, he's so unclear that a strong argument can be made that he does nothing more than vote his preferences while beating up his fellow judges for doing the same."

Now you've completely lost me. Of all the judges on the current Supreme Court, Scalia is most likely to write that he disagrees with something on policy but is forced to a decision based on the text.

"SH, because the very purpose of textualism is to provide ex ante assurances regarding the outcome. I invite you to provide links, say around the time of the oral argument in Raich, that accurately predict BOTH the approach that Scalia would take in his opinion and the outcome."

I don't even understand your argument here. My inability to predict emphasis is not an indictment of textualism. The annoying thing about arguing this with you is that we would be having this same discussion no matter which side Scalia fell on. If he had chosen to vote the other way you would be complaining that it proved he was voting for federalism against the precedent and that proved he allowed his conservative sentiment dictate the outcome over the clear legal history.

Which brings us back to "For a guy who argues that a judge's job is purely formalistic, he's awfully unclear as to when precedent should be followed and when it should be abandoned." He isn't particularly unclear. When the jurisprudence is tied to the actual text of the Constitution he is a lot more deferential to the jurisprudence. When it is tied to made up games which don't contain much relation to the text he isn't very deferential. That is why he is called a 'textualist'. He also isn't willing to willy-nilly overturn precedents which are deeply imbedded in how the government functions. That is why he is called 'conservative'.

"on a completely unrelated note: so long as the justices are not completely craven, the Endangered Species Act and the other federal environmental laws (CERCLA, CAA, CWA, RCRA etc) should be beyond challenge on Commerce Clause grounds."

The Commerce clause isn't the only clause in the Constitution. It is possible that something is possible under the commerce clause but is illegal under other clauses. For example enforcing an MJ ban by having a drug dealer executed by chopping off his fingers and toes until he bled to death might be ok under the commerce clause yet unconstitutional as cruel and unusual punishment. Some environmental laws might be perfectly fine as zones of control, but might require compensation as takings for example.

st - (for example, African Americans, a traditionally democratic constituency, generally favor harsher illegal drug enforcement policies that democrats as a whole)

I'm kind of surprised by this as these harsh penalities wreck more havoc among young black males than us white folk. I also noticed that the question involved drug dealers on the street. I imagine that to most Africian-Americans that means the nasty stuff. As it is one pot bust in high school and it's no student loans for you (one of the most stupid drug policies ever implemented, now that's saying something)

By far the social costs of prohibition far out weigh the costs of legalization (for weed only, mind you). Legalization will reduce the gateway effect because one wont resort to ilegal channels that also have access to heavier stuff. It would be easier to control access (21 and up). It would reduce the "this isn't as bad as DARE made it out to be, hmmmm maybe meth isn't so bad either" effect.

Like Gary I also have a very good friend who enjoys the occasional smoke. The physicial harms are nowhere near the effects of alcohol. My good friend has never had a hangover from the herbage, and is also among that rare group that gets a burst of energy after smoking, whereas with drinking he basically just wants to lie down and take a nap after a few drinks. Go figure.

SH: Please pass on the mind fouls. Since we haven't seen Scalia's decision supporting the 9th Circuit (because it doesn't exist), neither of us know how I'd react to it.

policy vs. text: this claim is going to require a link. where has Scalia written that the text [not precedent] requires any outcome he doesn't prefer?

predictability: I love the looseness of your language, "jurisprudence tied to the actual text of the Constitution" You realize, don't you, that what you wrote doesn't actually mean anything? The meaning of the word "commerce" can be just as hotly argued as the meaning of the word "liberty", not to mention the meaning of the 10th Amendment. [Portions of Roe {those analyzing the history of regulation of pregnacy}, for example, can be argued as being within the textualist and originalist schools of interpretation.]

conservative: Last I checked, Rehnquist was considered a conservative too. He dissented. What's interesting is that Scalia voted in support of the power of the federal govt. I compare this case to Seminole Tribe of Florida vs. Florida, here, where Scalia joined the majority in finding that the 11th amendment prevents the federal govt from creating a private cause of action against a state govt.

keep in mind that the 11th Amendment says only: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

I challenge any "textualist" to reconcile the language of the 11th amendment with Seminole. Can't be done.

to return to my theme: Scalia relies on textualism only when it suits his purpose. There would be nothing wrong with that if he admitted that he used textualism as an interpretive guide when he so chose, but that is not the position he takes in public, and that is not the defense SH extends.

"Portions of Roe {those analyzing the history of regulation of pregnacy}, for example, can be argued as being within the textualist and originalist schools of interpretation."

If you believe that please make such an argument.

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