The Constitution in Exile

The Supreme Court has just ruled that using medical marijuana grown and used in-state and not part of the general marijuana market affects interstate commerce so much that it is subject to federal regulation. Burton Wechsler, my con-law professor, told us 20+ years ago that the commerce clause was a catch all and that any limits on federal power had been pretty much written out of the Constitution. (He also referred to Rehnquist as the "Greatest legal mind of the 18th Century".) Burt was right about the meaninglessness of the Constitution as a check on federal power.

He was also right, IMO, in what seemed to me at the time a kind of "class struggle" interpretation of the development of con-law. He saw major cases in terms of winners and losers. When he asked us to describe a case, he wanted us to tell him who won and who lost, what was the prize and what was the price. "Don't tell me; tell Aunt Minnie!" he would urge us to boil cases down to something a lay person could understand.

The Constitution's being nothing more than a tool for legitimizing argumentation, it seems utterly correct to me that all Supreme Court cases are ultimately decided on a political basis. Folks are for states' rights when states are doing what they want them to do, and the same folks are for federal power when states are doing things they do not like. Both "left" and "right" are guilty of this, except that the left has not pretended as much to a devotion to federalism.

I am saddened to admit that federalism is an anachronism, and the states are becoming little more than political subdivisions or administrative regions. We are a few steps away from a single central state with power over every aspect of our lives. Is there any chance that the states will push back? I am not sure that it even matters. My adopted state of New York is hardly a bastion of liberty, and my home state of Georgia once used its sovereignty to justify oppression of some of its citizens of color. Heck, even my county and town governments are monstrous taxers and interested in just about every aspect of my life. Its the very idea of the state that is problematic, and smaller scale won't help me much us if I am in the libertarian minority.

I have been questioning the "smaller is better" mantra and probably need a refresher on the arguments. When I talk with my conspecifics in the community, I get lots of agreement on the "federal government is too big and does too much" front and even on the "what a bunch of useless maroons we have in Albany" front. But the same people would see me in hell before they would consider cutting my property taxes that subsidize their children's schooling.