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View Diary: Perry and Santorum spar over marijuana & why Dems should be pushing the issue. (42 comments)

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  •  Oh yes you can. (0+ / 0-)

    Marijuana regulation is a bad idea, but only ex post, not ex ante.  There's nothing in the design of the constitution that can or should deprive the federal or state government from regulating what people can put in their bodies and what goods they can sell inside and outside state lines, and any additional regulations needed to carry out the first two objectives.  It so happens that the particular sentences often meted out for marijuana crimes are overly harsh, and they seem both racially biased an selectively applied.  Neverthless, these are policy arguments, not constitutional ones.  There isn't a procedural or substantive due process or equal protection violation, as the courts would understand each, though they're clearly unfair.

    All there is, is the empirical argument that the drug war is a waste of money.  That, alone, should be sufficent for liberals and conservatives -- even if one agrees with the premise that the state has a legitimate interest in regulating recreational drug use (and I think it has "some" interest, in promoting quality, breaking up price fixing or other cartels, etc.), the current approach is just plain futile.  And that's true no matter what Constitutional vision you embrace, unless it's to say that marijuana prohibition should be mandatory, as Rick Santorum seems to want to say.  That wouldn't make it any less futile, though.

    "This world demands the qualities of youth: not a time of life but a state of mind[.]" -- Robert F. Kennedy

    by Loge on Tue Sep 27, 2011 at 03:11:10 PM PDT

    [ Parent ]

    •  Are you saying the constitution allows for the (1+ / 0-)
      Recommended by:
      isabelle hayes

      government to make it illegal for any citizen to grow a relatively harmless plant on their own land?  And surely it being a waste of money isn't all there is.  
      And what about why marijuana was made illegal and is still illegal, what about the Constitution protects that?

      S.A.W. 2011 STOP ALL WARS "The Global War on Terror is a fabrication to justify imperialism."

      by BigAlinWashSt on Tue Sep 27, 2011 at 03:24:07 PM PDT

      [ Parent ]

      •  Yes, for the most part (1+ / 0-)
        Recommended by:

        first of all, "relatively harmless" is a subjective value judgment.  If the state decides, even without a good reason, that it's a harmful plant and votes on it, courts are bound to respect that outcome.

        The question then becomes whether growing the plant "substantially affects" interstate commerce -- as long as marijuana regulation applies to drugs imported, sold in markets, and so on, the state can also regulate the growth on private land so as to avoid a loophole.  

        As to why marijuana was or wasn't made illegal, there are a confluence of factors.  Certainly race was one of them, but it's not explicit in the statute, and as long as there are potentially rational justifications the legislatures "might" have had to act as they did, the courts can't step in and second guess the actions.  (The crack/powder cocaine sentencing disparity hasn't been found unconstitutional, because even though there is a noted racial motivation behind it, the fact remains that crack is more potent and is cheaper, so therefore more in need of deterrence, or so the belief goes.) It's therefore distinguishable from a statute that on its face discriminates against one group of people impermissibly (and "discriminates against marijuana users" isn't quite that, as it's not a protected class, and everyone is theoretically subject to the law, even those who never would use marijuana -- not smoking it is kind of the idea behind your various criminal statutes).

        I see no contradiction, though, with believing that marijuana laws are generally not well drawn up and believing that the federal government does have the power to prohibit it, as it has the power to prohibit or regulate other kinds of illegal drugs.  The relative safety of marijuana compared with alcohol, tobacco, cocaine, or heroin is an empirical one, and the system -- rightly or wrongly, mostly rightly -- trusts this decisionmaking to the political branches, not courts.    

        "This world demands the qualities of youth: not a time of life but a state of mind[.]" -- Robert F. Kennedy

        by Loge on Tue Sep 27, 2011 at 03:34:30 PM PDT

        [ Parent ]

      •  Constitution allows government to pass all (3+ / 0-)
        Recommended by:
        alizard, isabelle hayes, Loge

        kinds of stupid laws. Stupid doesn't necessarily mean unconstitutional.

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