Third Party & Independents Archives

​Is Alcohol Dumber Than Weed? Justice Thomas Provides Some Clarity

My high school years were from the early to mid-70’s. I graduated from university in 1980. Please don’t ask me if I inhaled. And please don’t call me a hypocrite if I tell you that I now find pot disgusting - the smell the smoke all of it.

But someone might very well find the smell and the taste of single-malt disgusting as well. And such private epicurean concerns are not - or should not - be the stuff of Congressional lawmaking or executive orders.

That doesn't mean, however, that legal, medicinal, or recreational use of marijuana should be merely a private, epicurean concern. Consider DUI, for example. Studies have clearly shown impairment in reaction time when driving while stoned on weed, to put it in bluntly. Unfortunately, when compiling and analyzing statistics on automobile accidents and associated use of cannabis, alcohol is often a factor as well.

No kidding.

Does smoking pot make you more cautious than drinking alcohol in terms of your behavior while driving a vehicle? Perhaps, according to some evidence. But imagine the conversations in the parking lot outside the club at 2 AM:

HARRY Wow, I'm so drunk I can barely open the door!!

LLOYD Hey let's smoke some weed before we drive home! That'll chill us out!

In other words, there are legitimate concerns regarding legalizing cannabis, among them: DUI, longer term cognitive and other health effects, and the much-maligned gateway drug concern. And yes, you could write a longer list around well-founded concerns regarding alcohol.

So what is the appropriate venue for the people's will - who favor decriminalization and legalization as shown in the polls - to be expressed? Is it the state level or Federal Congress? Or both? Or neither?

If you truly believe in the 10th amendment and the fact that the Federal Government only has those powers specifically enumerated or delegated to it by the Constitution, then it would seem to be a state matter to determine what laws to enact to legalize or decriminalize marijuana, or maintain it's criminality. However, since the founders wrote that amendment we've had a few changes so to speak, especially the power of Congress to rule on interstate commerce.

While Congress could indeed pass legislation overturning Congressional laws - federal laws in other words - that criminalize cannabis, the Supreme Court has also had a heavy-handed influence in federal control over state legislation regarding pot. At Reason's website, Damon Root makes the fascinating case that it was a 1942 SCOTUS ruling that laid the groundwork for the Gonzalez vs Raich 2005 Supreme Court ruling against legalizing pot.

In 1942's Wickard vs Filburn, the Supreme Court ruled against a farmer for growing wheat for private use on his own land in amounts that exceeded quotas laid out by the 1933 Agricultural Adjustment Act, which functioned through the Commerce Clause. In 2005, in Gonazalez vs Raich, the Supreme Court again decided against private control of what one grows - marijuana rather than wheat in this case - using the Wickard precedent. Justice Clarence Thomas dissented writing the following:

By holding that Congress may regulate activity that is neither interstate nor commerce under the Interstate Commerce Clause, the Court abandons any attempt to enforce the Constitution's limits on Federal power.

So as AG Sessions rescinds a series of Obama administation executive actions (the Cole and associated memos) and gives federal prosecutors the freedom and authority to judge for themselves whether to prosecute marijuana producers in states that have decriminalized pot, we need Congress to legislate and perhaps SCOTUS to turn back the Wickard precedent, should this issue once again, arrive in their dockets.

As to the pros and cons of marijuana use, epicurean or otherwise, let each state decide. But under clear as well as constitutional guidance from the Federal Government.

And please, Harry and Lloyd, call a cab! Or even a tow truck. Now there's an interesting case ...

Posted by AllardK at January 5, 2018 6:05 PM
Comment #423016

Extravagant demands on the commerce clause by FDR and how his stacked court interpreted those demands will disappear when the Democratic party disappears.

FDR used the commerce clause to regulate wheat farmers during the depression. The courts backed him up. That precedent ushered in the regulations associated with a controlled economy.

The commerce clause was designed to prevent things like what Bill Nye is proposing. It comes into play with California’s free range chicken egg product. It had nothing to do with controlling a person’s product on his own property until FDR said it did.

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