Note to Conservatives: If ObamaCare is Unconstitutional, so are most Federal Drug Laws

It really irks me that Conservatives have suddenly discovered the doctrine of enumerated powers, now that the Federal Government is about to impose a huge Liberal agenda.

The same powers Congress will use to justify Obamacare authorize all federal drug laws.

If you think that health care is not interstate commerce, then growing marijuana plants in your backyard is certainly not interstate commerce. See Gonzales v. Raich.

With the exception of drugs that are actually transported interstate, banning the possession of narcotics is no less “interstate commerce” than mandating health care. State drug laws are constitutionally fine.

Conservatives like drug laws, but are opposed to health care mandates. I would like consistency from the Right, but I doubt it is possible.

24 Responses to “Note to Conservatives: If ObamaCare is Unconstitutional, so are most Federal Drug Laws”

  1. troll_dc2 Says:

    Why do you worry so about “left,” “right,” or ideology in general, given that the meaning of these terms is amorphous and that good (or bad) policy can be “liberal” or “conservative”? Doesn’t ideology interfere with thinking about the merits of things?

    • Josh Blackman Says:

      I only care about “left” or “right” because the only political party appointing Judges, with alleged fidelity to the text of the Constitution are Republicans. Conservatives (right) should realize that textualism and originalism swings both ways.

      On the left, there is little concern for fidelity to text, so it is not really an issue.

  2. troll_dc2 Says:

    I note with interest the ambiguous phrase “alleged fidelity to the text of the Constitution.” So would you support the appointment of a Justice who would overturn Hans v. Louisiana’s interpretation of the Eleventh Amendment? What about one who would revive the distinction between “manufacturing” and “commerce”? Or one who would not find a corporation to a “person” within the meaning of the Fourteenth Amendment?

    • Josh Blackman Says:

      The 11th Amendment is one of those issues that I go back and forth on. Souter may have had a point in Seminole and Alden. But your question keys up the interplay between fidelity to the text and stare decisis.

  3. troll_dc2 Says:

    “corporation to a “person” within” should be “corporation to BE a “person” within”

  4. troll_dc2 Says:

    “But your question keys up the interplay between fidelity to the text and stare decisis.”

    Where do you stand? Is there always just one answer?

    I happen to believe that Hans was so fundamentally wrong in terms of fidelity to text and in terms of the constitutional structure as a whole (think of the legal fiction that had to be invented to permit lawsuits against state officials and the unnecessary body of doctrine that was invented to determine whether would-be Eleventh Amendment-defying legislation was “appropriate” under the Fourteenth Amendment) and social policy in general (think of the lawsuits by citizens of the defendant state that could not be brought in federal or even state court). It helps that virtually all of the recent rulings have been by a 5-4 margin.

    • Josh Blackman Says:

      I haven’t made up my mind yet, but you are quite right. Hans was pretty flagrantly wrong, and the resulting jurisprudence to avoid that mistake has been terrible.

  5. troll_dc2 Says:

    What about the scope of the Commerce Clause and the meaning of “person”?

    • Josh Blackman Says:

      Those areas are wholly divorced from the original meaning.

  6. troll_dc2 Says:

    Would a Republican-appointed Justice be likely to rule that a corporation is not a “person” or that the Occupational Safety and Health Administration has no power to examine workplace conditions?

    • Josh Blackman Says:

      Probably not. The best we can hope for is a Republican appointed justice strikes down parts of the Gun Free School Zone Act or VAWA. And that isn’t saying much.

    • Carl Edman Says:

      Yes, because OHSA had such an enormous impact on the avoidance of workplace death.

  7. troll_dc2 Says:

    So you are gung-ho on having a Republican in power even while admitting that he probably would not do much to restore the concept of fidelity to the text. The question arises, then, as to why you should feel so strongly on this matter.

    • Josh Blackman Says:

      I ask myself this all the time, and I don’t think I have a satisfactory answer. I’m not an overtly partisan person. When voting, it usually boils down to the lesser of two evils. And the Republican party, in my mind at least, is the lesser of the evils.

  8. troll_dc2 Says:

    You seem to have a number of issues on which you are still making up your mind. So it appears that your support of the Republicans (and the conservatives) is a default position more than an intellectually explainable one.

    • Josh Blackman Says:

      Yes, I think that is an accurate statement. There is no political party, or even a legal school of thought, that I can totally identify with. I am not enamored by voting 3rd party, because that is essentially a vote of the worse of the evils.

  9. troll_dc2 Says:

    Do you like being pushed? Or should I stop?

    • Josh Blackman Says:

      LOL. Allowing people to push me has helped me develop thus far. Why stop now?

  10. troll_dc2 Says:

    So you are one of the rare people who is not easily irritated when forced to justify his thinking. This is good. (But you will note that I have said not too much about my thinking, mainly because you have not pushed me.)

    Back to the subject: Why is ideology important to you when you are not sure of so much? Is it like comfort food for the brain? Or are you less ideological now than formerly?

    • Josh Blackman Says:

      In my college days, before attending law school, I was rather partisan. After attending law school, politics became less interesting to me. So that may partially explain my allegiances.

      But your mention of “comfort food” ties back into a concept you discussed before; legal fictions. In many ways, I have trouble reject the argument that all of law is a mere fig leaf. Similarly, I think that all of politics is a waste, and I will become less free regardless of who is in power.

      Thus, perhaps I just accept a premise I know is false (Republicans are better) for the same reasons I accept the rule of law as a fundamental truth. It just makes me sleep easier at night.

      And, I’ll push you in good time troll_dc2. Just waiting for the right opportunity. 😉

  11. troll_dc2 Says:

    “I have trouble reject[ing] the argument that all of law is a mere fig leaf.”

    The development of the common law of conspiracy, can be seen, can it not, as a “civilized” way for the upper classes to prevent the lower classes from organizing to change the balance of social power? In fact, do judges ever escape the environment in which they grew up and developed their thinking?

    “I think that all of politics is a waste”

    But how else are decisions to be made in our society? Is politics a waste because it has always been a waste, or its there something in the political air today that makes it fundamentally different from earlier eras?

    “I will become less free regardless of who is in power.”

    Does that not depend on what you want to do? How are you less free now than, say, 10 years ago?

    “Thus, perhaps I just accept a premise I know is false (Republicans are better) for the same reasons I accept the rule of law as a fundamental truth. It just makes me sleep easier at night.”

    Are you suggesting that, if you rejected the premise about the Republicans because of its falsity, you would have nightmares?

    If you want to push me, I’ll give you my e-mail address.

    • Josh Blackman Says:

  12. troll_dc2 Says:

    I saw what appears to be your address, but I was unable to send a message to it.

    • Josh Blackman Says:

      It is JoshBlackman -at-
      Replace the -at- with an @ Sign
      I do this so Google doesn’t pick up my my email address

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