oh that American rag...

The court decision on medical marijuana is unsurprising – this is a court that has consistently insulated the war on drugs from the Constitution, affirming, time and time again, the tactics of the police state and the destruction of the Bill of Rights -- as long as that destruction leads to the American penitentiary society of which we are all so proud. The NYT captures the weirdness of the vote:

"The states' core police powers have always included authority to define criminal law and to protect the health, safety, and welfare of their citizens," said O'Connor, who was joined in her dissent by two other states' rights advocates: Chief Justice William H. Rehnquist and Justice Clarence Thomas.

The legal question presented a dilemma for the court's conservatives, who have pushed to broaden states' rights in recent years. They earlier invalidated federal laws dealing with gun possession near schools and violence against women on the grounds the activity was too local to justify federal intrusion.”

The present court has, however, no problem with inconsistency – they simply convey the conservative agenda in all its many splendid contradiction, regarding the reach of state power. Still, the drug issue has been tied in for years with the system whereby the Federal government has increased its power over the states – the ban on narcotics traffic being, along with the protection of endangered animal fur and feathers, one of the first areas in which the Fed asserted its preemptive regulatory right to reach into the states economies, and thereby shape their general political culture.

If this were a consistent court, this ruling would lead to the affirmation of a broad array of federal regulatory powers – it would be, in other words, incredibly New Dealish. But this is a political court, and its rulings about Federal power over, say, land use will hew to that line which pleases the rich, while its rulings about drug use will hew to that line which pleases the evangelicals.

The advantages of inconsistency in politics outweighs the ponderous benefits of precedence. I think liberals have to start thinking of states rights in a new way, as the U.S. becomes more and more Confederate. The use of the federal government to break up apartheid was a great victory – but one shouldn’t be tied to an ossified form. That was then, this is now. When the AG’s office is filled by a torture advocate, the time to get out of the habit of increasing federal power is now.