2016 FPR Conference

Front Porch Republic: FPR Annual Conference: October 8 at The University of Notre Dame

Jeff Taylor has a short review of Bill Kauffman's latest, Bye Bye, Miss American Empire: On the Porch with Bye, Bye, Miss American Empire.

Jeff Taylor, States’ Fights
Nullification makes a comeback—and not just on the Right.

The re-emergence of nullification—the repudiation or ignoring of a federal law by a state government—poses an interesting challenge to the power of the federal government and its monopoly on constitutional interpretation.

In recent decades, the first organized attempt came from the Left and libertarian Right’s advocacy of medical marijuana. The movement achieved success in California in 1996 with passage of Proposition 215—a direct affront to federal anti-drug laws—and has since spread to 13 other states. But in 2005, the U.S. Supreme Court ruled in Gonzales v. Raich that the Constitution’s commerce clause gives the federal government the right to criminalize marijuana. This trumping of states’ rights was supported by George W. Bush, Dick Cheney, John Ashcroft, and Alberto Gonzales as plaintiffs, and was advanced by Justice Antonin Scalia. In addition to being joined by three of the court’s Republican justices, Scalia allied with two liberals in declaring that Angel Raich, a woman with a brain tumor, substantially affected interstate commerce when she grew a plant in her backyard and used it to alleviate her own suffering.

To his credit, Clarence Thomas dissented, writing, “If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 states. This makes a mockery of Madison’s assurance to the people of New York that the ‘powers delegated’ to the Federal Government are ‘few and defined,’ while those of the States are ‘numerous and indefinite.’” He was referencing Federalist 45. Thomas further invoked the principle of original intent by noting, “In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana.”

Chief Justice William Rehnquist also dissented. Similarly, the attorneys general of Alabama, Mississippi, and Louisiana filed an amicus curiae brief supporting the defendant on states’ rights grounds. The Deep South is not a hotbed of NORML members, but it does have a longstanding suspicion of federal usurpation of state prerogatives.

Although the Controlled Substances Act was deemed superior to the Tenth Amendment, the Obama administration has backed away from strict enforcement in clear cases of medical use in legalized states. De facto nullification has won a partial victory. But it is likely that the Justice Department’s stance has more to do with politics than principle. Barack Obama is a former professor of constitutional law, but he is not known as a friend of states’ rights.

(h/t the Western Confucian)

Jeff Taylor, Of Money and Mouths

Mr. Taylor recommends some candidates running for office.