An odd irony has emerged around the pending Supreme Court decision on Obamacare. As Daily Beast notes, liberal advocates of Obama's "individual mandate" are pointing to the 2005 high court decision Gonzales v. Raich, in which the justices upheld Congress' ability to ban the growth of cannabis even in states that have legalized medical marijuana—rejecting the claims of California activist Angel Raich and two co-plaintiffs, who had sued to block enforcement of federal marijuana laws against them. Advocates note that Justice Antonin Scalia deviated from his "states' rights" principles in siding with the majority. He wrote:
Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce.... Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce.
Pretty funny to see the libs suddenly lining up with the cannabis prohibitionists—and invoking Scalia! It will be interesting to see how Scalia will vote this time—whether he will suddenly remember his supposed "small government" principles now that the apparently confounding issue of the Evil Weed is absent.
The dilemma has deep echoes in American history. The 1794 Whisky Rebellion in backwoods Pennsylvania, put down by a federalized militia, was a key moment in defining federal power in the young republic—and also concerned illicit production of a mind-altering substance. In the prelude to the Civil War, pro-slavery Democrats were accused by abolitionist Republicans of hypocrisy in their exploitation of the states-rights argument. State sovereignty was invoked in defense of the slave-owners, but the Southern aristocracy was just as quick to use federal power to enforce recognition of their "property" rights in Northern free states (as in the Fugitive Slave Act and Dred Scott case). A century later, Dixiecrats invoked states' rights in defense of Jim Crow.
Today, in a perverse irony, conservative Republicans invoke states' rights in defense of anti-union "right-to-work" laws, and opposition to federal land management and environmental regulations—but throw this principle to the wind when it comes to marijuana and the war on drugs.
It would be nice to see liberals demonstrate a little more backbone, and not throw the right to cannabis overboard at the first political convenience...