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by BurningFrog
2149 days ago
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"It took about 150 years, starting with a Bill of Rights that reserved to the states and the people all powers not explicitly delegated to the federal government, to produce a Supreme Court willing to rule that growing corn to feed to your own hogs is interstate commerce and can therefore be regulated by Congress." --- David Friedman
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That gloss on Wickard v. Filburn was a self-fulfilling prophecy. Filburn both sold his wheat crop and used it to feed his livestock which he also sold on the market.
I never understood why legal scholars, especially conservative legal scholars, so adamantly adhered to the notion that Wickard would clearly apply to purely private use. I tend to think it's out of spite--so upset about a decision that they promoted an unreasonable interpretation as a way to vindicate their ire.
It wasn't until Gonzales v. Raich (2005) that the court clearly stated Commerce Clause powers could extend to purely personal harvest and use, where neither the product (wheat, marijuana) nor derivatives (hogs, THC brownies) would be sold[1]. And ironically (or not so ironically), it was Scalia that cast the deciding vote.[2] And why did he do it? Basically because of reliance interests--Scalia worried the legal basis for the War on Drugs would come crashing down, and that would be too disruptive. But that's tautological--it only makes sense if you ignore the facts in Wickard and the commercial nature of the drug trade. Self... fulfilling... prophecy.... :(
[1] The counter-argument is that the Wickard opinion talks about the excess wheat consumed on the farm displacing demand for purchasing wheat. But he was already a commercial farmer--it was a matter of regulating commercial demand and commercial supply. And wheat is perfectly fungible, afterall, so of what matter is it that some small portion of the wheat might have gone directly to his table? The quotas were well in excess of what would be needed for purely personal consumption, direct and indirect. The notion of displaced demand can be easily cabined to the context of a commercial enterprise, and it strains credulity to believe the Wickard justices thought otherwise. Filburn wasn't a subsistence farmer, and wheat was a direct input to his commercial livestock. So analogizing that situation to homegrown marijuana displacing demand for, e.g, commercial medications is ridiculous (or, at the very least, an analogy one could just as easily reject as accept, again circling back to this notion that the parade of horribles from Wickard was wholly self-inflicted).
[2] And because of his Gonzales decision, for the Obamacare personal mandate Scalia was forced to retreat to a tenuous distinction between mandates and prohibitions, a distinction that would have been entirely unnecessary if he wasn't committed to the Wickard mythos[3]. If he had sided with the other conservatives in Gonzales, it would have been clear that the Commerce Clause couldn't support an individual mandate any more than a private use prohibition. (That would still leave open taxing powers as a basis, however, just as Roberts concluded.)
[3] Apropos HN, s/mythos/cargo cult/