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December 16, 2003

9th Circuit "Activism" on Medical Pot?

When you deal with conflicts between state and federal law, what constitutes "judicial activism" becomes confusing. However the court rules, one group of elected officials will have their law overturned by judicial decision.

The 9th Circuit has determined that federal drug laws don't apply to personal marijuana consumed for medical purposes.

In the decision, regulating such personal consumption lies outside federal Commerce power. This is a narrow exception to the commerce power, since any commercial aspect of an activity will bring even consumption into commerce power regulation under this standard.

Still, I'm against the decision-- as far as federal-state power conflicts, voters can decide through their national representatives how much power to give the national government. There is no reason for the federal courts to second guess the voters who elected the Congress on how best to establish this balance.

Stopping medical pot is stupid-- but 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.

Why should the national legislature trump the local? Partly because of the Madisonian idea that larger populations are more diverse and less likely to establish stable oppressions of minority views. Partly it's because we live in such an interconnected world with such a mobile population that a national referee makes the most sense. That doesn't mean that in practice the federal government should leave many decisions to the local, but that decision of how to allocate power and responsibility should be driven by national democratic debate.

Posted by Nathan at December 16, 2003 09:20 PM