by Matt Barr

The Raich argument

I haven't written about this case, as intriguing as it could potentially be to federalism, because while I consider myself a libertarian, I agree with Ann Coulter about one thing:

It's not as if we live in the perfect Libertarian state of nature, with the tiny exception of those pesky drug laws. We live in a Nanny State that takes care of us from cradle to grave and steals half our income. I kept suggesting to them that we might want to keep our eye on the ball here....

In theory, our areas of agreement should have included, among other things: eliminating the Department of Health and Human Services, eliminating the Department of Education, eliminating the Department of Commerce, eliminating the National Endowment of the Arts, eliminating the National Endowment for the Humanities, eliminating the Department of Agriculture, eliminating the Department of Housing and Urban Development, eliminating the Department of Transportation, eliminating the progressive income tax and instituting a flat tax.

Our sole area of disagreement was whether to abolish the drug laws before or after completing the above tasks.

That wasn't enough. I was deemed not a "true Libertarian" because my position was to defer the drug legalization issue until we had made a little more headway in dismantling the Nanny State.

So while Raich has potentially profound implications for the "federalist revolution" on the Court, many libertarians are jazzed about it because it involves possibly a far less profound victory in the legalization of pot. I really don't care, beyond that to the extent marijuana has medical benefits, doctors ought to be able to prescribe it; and once we "make a little more headway in dismantling the Nanny State," I'll line up with everyone who would legalize drugs on the ground that we should be free to do whatever we want to ourselves if we don't harm others.

But I am reading and enjoying Professor Randy Barnett's book Restoring the Lost Constitution, and Prof. Barnett was arguing Raich's case yesterday; and I read with interest accounts and summaries or the argument, including Lawrence Solum's excellent firsthand account.

Reason Hit & Run though picked up on an exchange that somehow I'd missed the first time.

[Justice] Stevens: If you reduce demand, then you will reduce prices? Wouldn't it increase prices?

Barnett: No, if you reduce demand, you reduce price.

Stevens: Are you sure?

Barnett: Yes.

Seriously, isn't it time for Mr. Justice Stevens to hang 'em up?

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