Thursday, March 20, 2003


Recently I groused about the "fair-weather federalists" on the right who talk of "states' rights" and the Tenth Amendment when it suits them, only to conveniently ignore these noble principles when it doesn't. Liberals, for their part, tend to ignore the Tenth Amendment more consistently. Until now.

Today, Volokh conspirator Orin Kerr announced the brand-new case of U.S. v. McCoy, in which the Ninth Circuit invalidated, on Tenth Amendment grounds, the federal prohibition on private possession of child pornography for non-commercial purposes. The majority opinion was write by Stephen Reinhardt, of all people. Who knows if the ruling will stick, but this one should be fun to watch, in any event.

Eugene Volokh, also of the Volokh Conspiracy (duh!) quoted a reader who extrapolated from McCoy that if Congress cannot prohibit individual, private possession of child pornography, it cannot prohibit illicit drugs, either. A third Volokh conspirator, Clayton Cramer disagrees. His counter-argument is as follows:

    It would not be at all difficult to establish a plausible connection between intoxication (alcohol or illegal drugs) and DUI, murder, rape, child molestation, industrial accidents, and a host of problems that much more directly affect the overall economy. Indeed, you can make a stronger case for the impact of alcohol and other intoxicants on interstate commerce than the supposed reduction in grain demand that the Wickard decision used as an excuse.

There's only one problem with this rebuttal: all five of these concrete examples (DUI, murder, rape, child molestation and industrial accidents) are matters of state law, not federal law. Sure, Congress can regulate these matters in certain contexts, e.g., where a criminal crosses a state line or the victim is a federal agent on the job, but as a general rule, these are not federal matters. Thus, it is not clear why the connection between drugs and any of them should form an independent basis for allowing Congress to step in. Do DUI, murder, rape, child molestation and industrial accidents have some effect on interstate commerce? Of course! What doesn't? But following Lopez and Morrison, "some effect" is no longer enough. Nor should it be; the commerce clause was around long before National Prohibition, but no one seriously argued at the time that Congress could rely on it to prohibit alcohol without a constitutional amendment.

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