You're putting the cart before the horse here. Just as it was foolish to encourage privatization in Russia before they had a functional market, so is it foolish to defer to our natinal governemnt until it becomes genuinely democratic.

To make it genuinely democratic would involve at minimum the following 2 things:

1) Changing the rules in congress to give all representatives equal (or darn close to equal)power. In other words, no powerful committee chairpeople who can prevent legislation from being voted on. No filibusters by minorities. And absolutely no privileges derived from seniority.

2) Proportional representation, so that our votes all count, instead of most of us being gerrymandered into districts most of which have a virtually pre-determined outcome.

and although the next two aren't structural things and aren't absolutely necessary, they sure would help:

3) Some sort of real campaign finance reform so that points of view aren't shouted down by the opposition

4) truly independent media from diverse sources, making elections more a contest of ideas and less propoganda

Until we have these, let's not pretend that the federal government is some pure manifestation of the people's will that therefore deserves the automatic right to preempt states.

-its only a preliminary injunction.

-"voters can decide through their national representatives how much power to give the national government." no I cant. I live in California, my vote does shit in the senate, and not much more in the house. If a law passed in California does not effect people in Georgia, why should they have a say? And you forget there is an agency problem here. Any representative in the federal legislature has an incentive to create more power in that body, especially when they are the majority. And who passes the bills? the majority. It is extremely rare that people would cast their vote based upon how much power their congressmen wants to give to the states.

-"There is no reason for the federal courts to second guess the voters who elected the Congress on how best to establish this balance."
So, you say our federal elected officials should interpret the Constitution? Why even have a constitution? We don’t elect federal congresspersons to interpret the Constitution; we elect them to pass Federal laws.

How ‘bout: there is no reason for federal courts to second guess the voters who elected the state officials on how best to establish laws that effect that state alone.

Or to get the most democratic of all: This law (Prop. 215) was passed by a referendum- dee-rect dee-mocracy for ya! much better than judges or legislatures, eh?

I'm sure you want to protect people who happen to live in those evil states (maybe those down south, hum?) where the legislatures hurt the people that live there, "if we let judges strip the feds of power, we'll see abuses of individuals at the local level that the feds will also be incapable in stopping." I just don’t think a couple people growing their own marijuana will lead to too much trouble.

In this case we have the state increasing liberty while the feds decrease it. Why shouldn't the state interest trump the federal interest?

Contrast this with the last great increase in the scope of the commerce clause (1960's civil rights) whereby the feds increased liberty to extend antidiscrimination protection to private business. This contrasted with the states interest in giving its citizens the liberty to discriminate based on race. Balancing the federal interest in liberty of minorities against the state interest in liberty of the majority looks to be any easy call.

With medical marijuana the balance is between the liberty to have access to health (life and liberty and a certain pursuit of happiness) versus the federal interest in incarceration (a pretty strong limit on liberty). The balance certainly ought to be in the state's favor to expand liberty (although it really is the state choosing not to restrict liberty).

Keeping in mind this balancing of local vs. national power, how does this stip the feds of power to prevent abuses of inidividuals at the local level?

Because the example of Civil Rights shows that federal power is much more likely to protect minority rights over time. Look, I regularly document federal laws that are worse than state laws, yet preempt them. I don't like that politically, but in the long run, trusting to the democratic decisions of a diverse nation is far preferable than letting local homogenous populations have unchallengeable power to control the lives of minority populations.

In this case, the local law is better-- so that should help illustrate why national policy should change. But the history of local censorship, segregation, and other issues shows this to be the exception, not the rule.

So don't sign up for the "states rights bandwagon" because on one issue the states are a little bit ahead of federal decisions. Have a little democratic trust-- we'll be winning the medical pot fight on the national level very soon, is my bet.

Far be it from me to sign up to the "states rights bandwagon". In fact, I am strongly opposed to that line of rhetoric and dishonesty by simplification.

I'm more trying to point out the need, uses of, and historical foundation for using balancing tests by the judiciary, something which is usually ignored by those upset by any particular decision.

But my point is I don't believe that judges should get to "test" anyone, balanced or not. The people should establish the balance-- if they want local control of drug laws, they can vote to give that local control.

And I'd rather have democratically elected federal legislators applying those tests, than unelected federal judges.

I haven't read the decision yet, but it seems like they are applying the Lopez/Morrison standard as opposed to the Wikert standard. Perhaps conservatives should be careful what they wish for.

I haven't read the decision yet, but it seems like they are applying the Lopez/Morrison standard as opposed to the Wikert standard. Perhaps conservatives should be careful what they wish for.

Thurgood Marshall would have disagreed with you. And this doesn't mean he or I support unlimited or even more than a very small amount of deference to the judiciary.
When a fundamental right, including equal protection and health, is restricted, it is incumbent upon the judiciary to override the legislature. Why do all first year law students study Marbury v. Madison in the first week of Con. Law? Has judicial review really usurped the power of the legislature?
Hamiltons Federalist No. 78 says in part: "The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents."

I think gfwesq is right. They are just following SCOTUS precedent on the limits of the Commerce Power. I really don't understand you on this judicial activism issue, Nathan. The court has a job to do, too. I'm all in favor of courts showing restraint and not jumping headlong into controversial decisions against the will of the people as expressed through the legislature, but come on! You've got a SCOTUS that says the Commerce Power has been defined way too broadly, and it only goes so far. You've got a lower court that says, okay, personal consumption of marijuana doesn't meet the Morrison test.

The job of the court is to take the legislation they've been given, compare it to the Consitution they've been given, applying the standards of Constitutional interpretation they've been given, and render a judgment. What would you have them do? Ignore all that and issue an opinion that says "No, better to keep out of it"?

In my opinion, this is just a very small check on a dangerous trend of destruction of the constitution by an out of control federal government. Considering the original intent of the constitution generally reserved police powers to the states, there has been a lot of movement toward federal police powers in more and more crimes to the point where the Commerce Clause (at least in terms of police powers) has begun to appear as much a joke as the 9th and 10th amendments.

To go so far as to allow that the Federal Government has jurisdiction to send in armed agents to harrass people who are smoking a plant (for medical purposes with the full support and authority of their state and local government)... well the 9th Circuit reasonably recognized that the feds are being downright silly in this case, and placed the tiniest restriction as a reminder that the constitution has at least some limited importance.

To whom it may concern,

My name is Brandon Mercer. I am 22 years old, and I currently reside in the Wyoming State Hospital in Evanston, Wyoming. I came here voluntarily for reasons I will explain later. I have been here for over a year, and have been given every psych med in the book with no results.
I lived in California for a while, and people there alienate eachother's thought all day long, and I was dealing with a housemate who would alienate my thought all day long. At first it was just around the house, then the other end of the room, then a block away, and finally it followed me home, back to Wyoming, needless to say I couldn't get a job. So I am literally having a telepathic connection all day long, and he puts words in my mouth all day long. We didn't care for eachother very much, so he makes me insult people all day long, trying to get me hurt. He actually puts words in my mouth all day long. The scientific term for it is thought insertion.
I know what you're thinking, this kid is having some sort of pathological delusion. I only wish that were true. When I explain my case to my doctors they instantly dismiss it as schizophrenia, although I know deep down that they know and I know it's something more than that. Just once I would like to hear a doctor say, "Wow, never heard of that before."
I have got to be the first case of my kind, and I have written numerous parapsychologiests, transpersonal psychologists, extrapsychologists, and have had nothing but poor results. Now here's the kicker, what really baffled me was when I first arrived back to Wyoming, I got high off of marijuana with a friend of mine, willing to try anything, and sure enough it scared the thought insertion stuff out of my head for an entire day. I was elated, thinking my mentally painful plight was over, I began to make plans to reenter society. But if didn't last more than about 24 hours. If you have read this far, you must find my story somewhat intriguing. I coiuld use all the help I can get, I surely have to be the first documented case of thought insertion like this.

love and light,

brandon Mercer