Comments on: More on Federalism and this Supreme Court http://www.coyoteblog.com/coyote_blog/2005/06/more_on_federal.html Dispatches from a Small Business Sun, 12 Feb 2012 09:39:47 +0000 hourly 1 http://wordpress.org/?v=3.2.1 By: markm http://www.coyoteblog.com/coyote_blog/2005/06/more_on_federal.html/comment-page-1#comment-1293 markm Sun, 12 Jun 2005 05:30:27 +0000 http://coyote-blog.com/wordpress/2005/06/more_on_federal.html#comment-1293 <p>The problem now is that this decision takes federal power even further than Wickard. See Volokh for a more lawlerly take on this. The law under which Wickard was prosecuted did not cover gardens, or even small plots of wheat grown for sale. That is, it recognized that some wheat cultivation was too small scale to affect interstate commerce, but Wickard's 23 acres were over the threshold. The Wickard supreme court still had to ignore the original meaning (commerce meant <i>only</i> trade when the Constitution was written) and stretch their imaginations to read "regulate interstate commerce" as "regulate anything that might have a small indirect effect on interstate commerce", but at least the law they upheld did not assume a federal power to regulate <i>everything</i>. The federal marijuana laws do. </p> The problem now is that this decision takes federal power even further than Wickard. See Volokh for a more lawlerly take on this. The law under which Wickard was prosecuted did not cover gardens, or even small plots of wheat grown for sale. That is, it recognized that some wheat cultivation was too small scale to affect interstate commerce, but Wickard’s 23 acres were over the threshold. The Wickard supreme court still had to ignore the original meaning (commerce meant only trade when the Constitution was written) and stretch their imaginations to read “regulate interstate commerce” as “regulate anything that might have a small indirect effect on interstate commerce”, but at least the law they upheld did not assume a federal power to regulate everything. The federal marijuana laws do.

]]> By: Matt http://www.coyoteblog.com/coyote_blog/2005/06/more_on_federal.html/comment-page-1#comment-1292 Matt Wed, 08 Jun 2005 08:24:24 +0000 http://coyote-blog.com/wordpress/2005/06/more_on_federal.html#comment-1292 <p>The real hope was that Wickard would be overturned. Anyone on the pro-Raich side who was not themselves stoned at the time knew that a _narrow_ ruling in favor of marijuana was not going to be forthcoming. So every sane person knew it would either be an affirmation or a wholesale repudiation of Wickard. Repudiation would have been better, but it also would have had sweeping consequences, invalidating in a single decision massive mounds of legislation and regulation...much of it dating back to the New Deal.</p> <p>Those of us with libertarian preferences would have considered that a fine outcome indeed. But perhaps it was too much to expect from the Supreme Court.</p> The real hope was that Wickard would be overturned. Anyone on the pro-Raich side who was not themselves stoned at the time knew that a _narrow_ ruling in favor of marijuana was not going to be forthcoming. So every sane person knew it would either be an affirmation or a wholesale repudiation of Wickard. Repudiation would have been better, but it also would have had sweeping consequences, invalidating in a single decision massive mounds of legislation and regulation…much of it dating back to the New Deal.

Those of us with libertarian preferences would have considered that a fine outcome indeed. But perhaps it was too much to expect from the Supreme Court.

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