In a far corner of Facebook I found someone citing two justices of the Supreme Court in an infamous marijuana case. I was pleased to be reminded of this. What follows are a few passages from the case, with my commentary — though what I write is indeed duplicative in spirit to the OP.

img_5132In the case of Gonzales v Raich the Supreme Court ruled that under the Commerce Clause of the US Constitution, Congress may criminalize the production and use of homegrown cannabis even if state law allows its use for medicinal purposes. But of course the ruling applies to a lot more than just marijuana.

Justice Stevens, writing in the majority opinion, proves himself to be quite the lawyer:

The case is extremely troublesome because respondents have made such a strong showing that they will suffer irreparable harm if denied the use of marijuana to treat their serious medical illness.

But the question before us is not whether marijuana does in fact have valid therapeutic purposes, nor whether it is a good policy for the Federal Government to enforce the Controlled Substances Act in these circumstances.

Rather, the only question before us is whether Congress has the power to prohibit respondents’ activities.

Of the dissents, Justice Clarence Thomas’s was the most interesting:

If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption (not because it is interstate commerce, but because it is inextricably bound up with interstate commerce), then Congress’ Article I powers — as expanded by the Necessary and Proper Clause — have no meaningful limits. Whether Congress aims at the possession of drugs, guns, or any number of other items, it may continue to ‘appropria[te] state police powers under the guise of regulating commerce.’

And what is the consequence of a lack of constitutional limits?

If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison’s assurance to the people of New York that the ‘powers delegated’ to the Federal Government are ‘few and defined,’ while those of the States are ‘numerous and indefinite.’

What Thomas has indicated, here, is simple: the federal government behaves in an unconstitutional manner as a matter of course. When Speaker of the House Nancy Pelosi was asked about the Constitutional rationale for Obamacare, for example, she expressed incredulity: “Are you serious? Are you serious?”

Politicians and ideologues are almost united in showing contempt for the Constitution and its structure.

For all our laws, we live in a lawless State. It is not just that the modern federal government exists by a sort of social consent that we may lie about the Constitution and that this is a good thing. Congress can make the general government do almost anything it wants, really, if enough politicians say so, and congresspeople think they get reëlected despite doing what they do.

This means that there are no effective foundational checks on government power. The checks are mainly political. Sure, lawyers still hold sway, and can use existing law even against existing political opponents — the whole Russiagate investigation sure seems like that is what is happening re Trump. But, at the merest crisis, we could slip into society-wide tyranny, not the little, sectoral tyrannies we now must endure. 

So, what is the bottom line? If you are an enthusiastic voter who is generally in favor of the shape of the U.S. Government and its wide regulatory reach, you are in league with the forces of tyranny. How so? By accepting all the little tyrannies we have now, and endorsing politicians who do not see themselves as in any way meaningfully checked by any constitutional structure.

I consider this no different in kind between apparatchiks in the Soviet Union or Nazi Party members in the Third Reich. It’s only a difference in degree.

We just haven’t had our Night of Long Knives yet.

twv

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