Wednesday, October 09, 2013

Elements of Law 3.0 Notes and Readings III-D (Institutional Architecture of Law and Governance: The United States and Law Making--The Federal-State Interplay, the 9th and 10th Amendments of the Federal Constitution)

(Pix (c) Larry Catá Backer 2013)

I have been posting about the development of a new course I have been developing for our first year law school students, "Elements of Law."  (Elements of Law 3.0: On the Relevance of a First Year Law Course Designed to Frame the Law School Curriculum).  The SYLLABUS can be accessed HERE.

With this post I continue to share with the class and interested "others" summary study notes for the course readings.  For this post we continue to consider section III of the materials:  III.D. Institutional Architecture of Law and Governance:  The United States and Law Making--The Federal-State Interplay, the 9th and 10th Amendments of the Federal Constitution.   Comments and discussion most welcome.

The Table of Contents for all of the Lecture Notes may be accessed HERE: Elements of Law 3.0: Table of Contents for Lecture and Reading Notes for An Introduction to U.S. Legal Theory and Practice.

III-D Institutional Architecture of Law and Governance: The United States and Law Making--The Federal-State Interplay, the 9th and 10th Amendments of the Federal Constitution.

Notes for:
U. S. Constitution Amendments 9 and 10
Gonzalez v. Raich, 545 U.S. 1 (2005).

With this reading we end our short review of the architecture of the American law-state.  We have come to understand that law occupies a space both within and outside the government (and to some extent outside the state as well). We have seen how American "higher law" has been used to structure the government, constrain the scope of its substantive powers and manage the application of politics to the operation of the state apparatus through law.  We have seen how the power of government has been fractured horizontally in three functionally distinct categories, and vertically between a general government of specified powers and a residual power of government exercised by states whose own residual power is made subordinate to and exercised under the leadership of the general government.  We have examined the application of notions of rule of law not just to understand the limits of government's power (under law) to deprive individuals of their life, liberty or property interests, but also how law has been used as structural constraints on politics. That "higher law" of the constitution is grounded in fundamental principles--separation of powers, checks and balances and federalism--that are in turn principled manifestation of fundamental political premises of the American union, a premise that government must be efficient, but also that governmental power must not be aggregated sufficiently to make tyranny (arbitrary government not grounded on law) possible. To that end we have begun to understand the political us of law by courts to ensure fidelity to the legal basis of government.  And we have been introduced to two important interpretive approaches used by courts--formalism and functionalism. These we have explored in the application of law to resolve disputes about the boundaries of legislative and presidential power, of the place of administrative  agencies within the divided power system of the federal government, and the tension between the extent of the power of direct or popular democracy and federal constraints on law making (even when a majority of people desire it). 

Today we end our exploration of the construction of the American law state with an introductory consideration of federalism--the principle of vertical separation of powers.  Federalism describes the legal framework within which the political interplay between the specific power of the general government and the residual power of states play out. Two constitutional provisions might, at first glance, appear to provide a text for the specification of the arrangement of federalism as a principle of separation of powers between a general government and those of the constituent states of the Union.  The 9th Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The 10th Amendment provides: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

Both suggest both principle and limitation.  One has confined the 9th Amendment to a means for reading the constitution, rather than an autonomous source of rights.  Another, has confined the 10th Amendment, to truism and principle:
while the Tenth Amendment makes explicit that "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people"; the task of ascertaining the constitutional line between federal and state power has given rise to many of the Court's most difficult and celebrated cases. . . .  If a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States; if a power is an attribute of state sovereignty reserved by the Tenth Amendment, it is necessarily a power the Constitution has not conferred on Congress. . . .  It is in this sense that the Tenth Amendment "states but a truism that all is retained which has not been surrendered." United States v. Darby, 312 U.S. 100, 124 (1941). . . . The Tenth Amendment likewise restrains the power of Congress, but this limit is not derived from the text of the Tenth Amendment itself, which, as we have discussed, is essentially a tautology. Instead, the Tenth Amendment confirms that the power of the Federal Government is subject to limits that may, in a given instance, reserve power to the States. The Tenth Amendment thus directs us to determine, as in this case, whether an incident of state sovereignty is protected by a limitation on an Article I power.  (New York v. U.S., 488 U.S. 1041 (1992)).
The structural role reserved by the Courts ot the 10th Amendment, then, becomes clear. Even though the principles identified in the 9th and 10th Amendments have not been used by the Supreme Court as a muscular foundation for creating structural constraints on the assertion of power by either states or the general government, their principles tend to be felt in the way in which the federal Courts develop legal standards by which to specific congressional powers are applied.  To illustrate that pattern, we focus on one of the most important powers conferred on the general government, the power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes" (U.S. Const. Art. I Sec. 8).). "The Constitution does not explicitly define the word [commerce].  Some argue that it refers simply to trade or exchange, while others claim that the founders intended to describe more broadly commercial and social intercourse between citizens of different states. Thus, the interpretation of "commerce" affects the appropriate dividing line between federal and state power." Legal Information Institute, Commerce Clause.

Important Commerce Clause cases include Gibbons v. Ogden, 22 U.S. 1 (1824) (general government has the power to regulate interstate navigation even when that regulation also touches on activity within a state); Champion v. Ames, 188 U.S. 321 (1903) (Commerce power extended to prohibiting commerce in certain goods, in this case shipping Paraguayan lottery tickets across state lines);  Swift and Company v. United States, 196 U.S. 375 (1905) (general government can regulate local commercial activity through the Sherman Anti-Trust Act as long as the local activity  was part of the current or stream of commerce between states); Houston E. & W. T. Ry. Co. v. United States, 234 U.S. 342 (1914) (Commerce Power may be used to regulate purely intra state commerce if it is an inseparable part of inter state commerce or a "close and substantial relationship" to interstate commerce);  NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937) (federal regulatory power extended to intra state activities that could cumulatively have a substantial effect on commerce);  Heart of Atlanta Motel v. United States. 379 U.S. 241 (1964) (commerce power could be used to apply an anti-discrimination statute to an establishment that served people in interstate travel and that could affect national policy); Katzenbach v. McClung, 379 U.S. 274 (1964) (Commerce power extended to application of anti-discrimination statute to a local restaurant that served almost purely local customers where its food was ordered in interstate commerce); Perez v. U.S., 402 U.S. 146 (1971) (upholding conviction for loansharking, finding that a purely local activity might be subject to federal regulation when it belonged to an economic class of activities that have a substantial effect on commerce).

By the early 1970s, the doctrine appeared settled that Congress was free to regulate under the Commerce Power virtually any activity, whatever its character, as long as it might plausibly have some direct or indirect economic effect on interstate commerce or touch on the national interest in some way that might plausibly be connected eventually to economic activity. Indeed, after Heart of Atlanta and Katzenbach, there appeared to be little that the Congress could not regulate as "commerce."  As long as national policy was invoked and the plausibility of national effects of legislation could be asserted, it appeared unlikely that the Supreme Court would strike down a statute as beyond Congress' Commerce Power.  Yet there remained a persistent view that if this were the case then the residuary power of the states over the regulation of their own internal economies had been reduced to nothing, and that the general government, with the complicity of the federal courts, would have seized for itself the whole of the power to regulate any activity with an arguable eventual effect on commerce.   The result would appear to breach the core anti-tyranny premise of the constitutional structure of the Republic. 

However, in two recent cases, the Supreme Court has appeared to carve out a small constraint on the power of the general government to regulate activities.  In the first, Lopez v. United States. 514 U.S. 549 (1995), the Supreme Court appeared, for the first time since the early 1930s, to point to a limit on Congressional legislative authority under the Commerce Power.  In that case the Court declared beyond Congress' legislative power a provision of the Gun Free School Zones Act of 1990 that prohibited any individual from knowingly possessing a firearm at a place that the individual knows, or has reasonable cause to believe, is a "school zone" as defined by 18 U.S.C. § 921(a)(25). The second,  Morrison v. United States, 529 U.S. 598 (2000), declared invalid the Violence Against Women Act provisions that made domestic violence against women a federal crime.

The Commerce Clause has also been read to limit states in the exercise of their residual power to regulate purely intra-state economic activity.  These limitations are grounded in the notion that while states are free to arrange their internal economies as they see fit, these arrangements may not be used to inhibit or discriminate against, in form or fact (that so formally or functionally) good, services or activities originating or flowing through other states. The cases through which this doctrine emerged out of over a century of interpreting the Commerce Clause are sometimes not easy tp harmonize and reflect changes in the political realities of the nation as well as the customary expectations of its political economy.  The arguments, however, are rarely framed in those terms. Rather, again because this interpretive exercise by the Courts involves the construction of a legal edifice to manage political choices in a context of vertically fractured or divided power, the decisions tend to develop and apply a number of schools of legal interpretation which we consider in the next section of the materials.  These include variations on textualism (e.g., the language of the provision of principles derived from the text as a whole), originalism (e.g., original understanding of the text by its framers or common understanding at the time of enactment), and variations of living constitution interpretations (dynamic meaning; variations on functionalisim grounded in current understanding or objectives of national policy). For a summary of cases see, e.g., HERE. This Dormant Commerce Clause power remains controversial.

The reading for today, Gonzalez v. Raich, 545 U.S. 1 (2005) illustrates the current complexion of analysis undertaken by the federal courts in determining contests between states and the general government over federalism--usually brought up by states contesting what they believe may be federal government encroachment of the residuary power of states. The issue remains a lively one and provides a good example of the interpretive techniques that courts use to frame in legal terms the political settlement represented by federalism as a premise of constitutional government int he United States.

The case involved a fairly contentious social and political issue of the early decades of the 21st century--the unraveling of the 20th century consensus on the control and prohibition of the use of certain substances deemed dangerous by the state. In this case, the issue centered ion the efforts by the state of California to permit the medical use of marijuana in contravention of a general federal prohibition against the use of the substance.
California has been a pioneer in the regulation of marijuana. In 1913, California was one of the first States to prohibit the sale and possession of marijuana, and at the end of the century, California became the first State to authorize limited use of the drug for medicinal purposes. In 1996, California voters passed Proposition 215, now codified as the Compassionate Use Act of 1996.The proposition was designed to ensure that “seriously ill” residents of the State have access to marijuana for medical purposes, and to encourage Federal and State Governments to take steps toward ensuring the safe and affordable distribution of the drug to patients in need. * * * *

Respondents Angel Raich and Diane Monson are California residents who suffer from a variety of serious medical conditions and have sought to avail themselves of medical marijuana pursuant to the terms of the Compassionate Use Act. They are being treated by licensed, board-certified family practitioners, who have concluded, after prescribing a host of conventional medicines to treat respondents' conditions and to alleviate their associated symptoms, that marijuana is the only drug available that provides effective treatment. Both women have been using marijuana as a medication for several years pursuant to their doctors' recommendation, and both rely heavily on cannabis to function on a daily basis. Indeed, Raich's physician believes that forgoing cannabis treatments would certainly cause Raich excruciating pain and could very well prove fatal.

Respondent Monson cultivates her own marijuana, and ingests the drug in a variety of ways including smoking and using a vaporizer. Respondent Raich, by contrast, is unable to cultivate her own, and thus relies on two caregivers, litigating as “John Does,” to provide her with locally grown marijuana at no charge. * * * *

On August 15, 2002, county deputy sheriffs and agents from the federal Drug Enforcement Administration (DEA) came to Monson's home. After a thorough investigation, the county officials concluded that her use of marijuana was entirely lawful as a matter of California law. Nevertheless, after a 3-hour standoff, the federal agents seized and destroyed all six of her cannabis plants. (Gozalez,supra).
Raich and Monson then brought an action against the U.S. Attorney General as the head of the Drug Enforcement Administration in a federal district court seeking to enjoin enforcement of the federal Controlled Substances Act (CSA), 84 Stat. 1242, 21 U.S.C. § 801 et seq., under which their marijuana had been seized. The district court denied the motion for a preliminary injunction but was reversed by a divided  9th Circuit, which ordered the entry of the injunction.   In an opinion that clearly indicated the view that the application of the law in this case was ill advised ("The case is made difficult by respondents' strong arguments that they will suffer irreparable harm because, despite a congressional finding to the contrary, marijuana does have valid therapeutic purposes" Gonzalez, supra), a majority of justices, over a strong dissent, held that Congress' power to regulate interstate markets for medicinal substances encompasses the portions of those markets that are supplied with drugs produced and consumed locally, that the CSA was a valid exercise of federal power. (Gonzalez, supra). The question of where the courts draw the border between federalism's power fracture principles and the general government's power to regulate interstate commerce under its specified powers where the activities regulated are purely local suggests both the tensions in the legal construction of the American political system, the limits of law as a mechanism for regulating those tensions and the malleability of constitutional text, even when applied formally.

The majority opinion is an excellent example of common law constitutionalism.  It is formalist in the sense that it applies the law strictly even where it is clear that this application may be at odds with either intention or objective. It is distinguished from the textual formalism of Justice Black's opinion in the Steel Seizure Case studied earlier because in this case the opinion relied  less on text and far more on a long line of case law interpreting that text.

The majority opinion starts with a brief history of federal policy leading over the course of nearly a century to the enactment of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 84 Stat. 1236, P.L. 91-513, and specifically Title II of that Act, the Controlled Substances Act (CSA), 84 Stat. 1242, 21 U.S.C. § 801 et seq. (Gonzalez, supra, Part II). The purpose of this exposition was both to suggest the length of federal interest in regulating ,and controlling traffic in particular drugs, and the way that interest had manifested itself differently form the star to the end of the 20th century and in current incarnation that sprang up in the last third of the 20th century. Before then, the issue of controlling or prohibiting trade in particular substances had been left to the states.  From the start of the 20th century, federal regulation has at first focused on labeling and purity restrictions for substances crossing state borders.  Beyond that most federal measures seeking to regulate trade in drugs were sources in the taxing and spending powers of Congress.
For example, the primary drug control law, before being repealed by the passage of the CSA, was the Harrison Narcotics Act of 1914, 38 Stat. 785 (repealed 1970). The Harrison Act sought to exert control over the possession and sale of narcotics, specifically cocaine and opiates, by requiring producers, distributors, and purchasers to register with the Federal Government, by assessing taxes against parties so registered, and by regulating the issuance of prescriptions. (Gonzalez, supra, Part II).

Marijuana came to federal regulator's attention only in the late 1930s, after the dissemination of writings suggesting marijuana's addictive properties and detrimental physiological effects.  The first measures were also grounded in the revenue powers under the Marijuana Tax act that was found, in part, unconstitutional in Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969).  In that year and the next, the federal government substantially increased its involvement in control of drug markets, essentially regulating some classes of drugs and prohibiting trade in others. They also established or reorganized large portions of the federal government to tend to this effort.  
To effectuate these goals, Congress devised a closed regulatory system making it unlawful to manufacture, distribute, dispense, or possess any controlled substance except in a manner authorized by the CSA. 21 U.S.C. §§ 841(a)(1), 844(a). The CSA categorizes all controlled substances into five schedules. § 812. The drugs are grouped together based on their accepted medical uses, the potential for abuse, and their psychological and physical effects on the body. §§ 811, 812. Each schedule is associated with a distinct set of controls regarding the manufacture, distribution, and use of the substances listed therein. §§ 821-830. The CSA and its implementing regulations set forth strict requirements regarding registration, labeling and packaging, production quotas, drug security, and recordkeeping. Ibid.; 21 CFR § 1301 et seq. (2004). (Ibid).
Marijuana was classified as a Schedule I drug because the government declared this to have a high potential for abuse, to lack accepted medical use  and to lack accepted safety for use in medically supervised treatment. (Ibid). This last point, of course was meant to suggest that the factual basis of the law might well be in doubt because at least one state had authoritatively declared that marijuana had medically acceptable uses in a safely controlled environment.  Bt that suggestion which might well be true as a factual matter could not be accepted as a legal matter precisely because the law enacted expressed a different factual (if un-reviewed) view.

The majority then took up the issue of the statute as a valid exercise of Congressional power,  It first described the narrowness of the issue presented.
Respondents in this case do not dispute that passage of the CSA, as part of the Comprehensive Drug Abuse Prevention and Control Act, was well within Congress' commerce power. . . . Nor do they contend that any provision or section of the CSA amounts to an unconstitutional exercise of congressional authority. Rather, respondents' challenge is actually quite limited; they argue that the CSA's categorical prohibition of the manufacture and possession of marijuana as applied to the intrastate manufacture and possession of marijuana for medical purposes pursuant to California law exceeds Congress' authority under the Commerce Clause.
To make that narrow determination, whether Congress has the power under the Commerce Clause to regulate discrete activity that is purely intra-state in character required the Court to apply the text of the Commerce Clause as refined through nearly a century's worth of cases.  It is to the cases, rather than the text itself, where the "law" of the Constitution would be found.
Our case law firmly establishes Congress' power to regulate purely local activities that are part of an economic “class of activities” that have a substantial effect on interstate commerce. See, e.g., Perez, 402 U.S., at 151, 91 S.Ct. 1357; Wickard v. Filburn, 317 U.S. 111, 128-129, 63 S.Ct. 82, 87 L.Ed. 122 (1942). As we stated in Wickard, “even if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.” Id., at 125, 63 S.Ct. 82. We have never required Congress to legislate with scientific exactitude. When Congress decides that the “ ‘total incidence’ ” of a practice poses a threat to a national market, it may regulate the entire class. See Perez, 402 U.S., at 154-155, 91 S.Ct. 1357 ( “ ‘[W]hen it is necessary in order to prevent an evil to make the law embrace more than the precise thing to be prevented it may do so’ ”(quoting Westfall v. United States, 274 U.S. 256, 259, 47 S.Ct. 629, 71 L.Ed. 1036 (1927))). In this vein, we have reiterated that when “ ‘a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence.’ ” E.g., Lopez, 514 U.S., at 558, 115 S.Ct. 1624 (quoting Maryland v. Wirtz, 392 U.S. 183, 196, n. 27, 88 S.Ct. 2017, 20 L.Ed.2d 1020 (1968); emphasis deleted). (Ibid., Part III).
 Critical to that determination was the case of Wickard v. Filburn, 317 U.S. 111 (1942).
Wickard thus establishes that Congress can regulate purely intrastate activity that is not itself “commercial,” in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity. The similarities between this case and Wickard are striking. * * * * Nonetheless, respondents suggest that Wickard differs from this case in three respects: (1) the Agricultural Adjustment Act, unlike the CSA, exempted small farming operations; (2) Wickard involved a “quintessential economic activity”-a commercial farm-whereas respondents do not sell marijuana; and (3) the Wickard record made it clear that the aggregate production of wheat for use on farms had a significant impact on market prices. Those differences, though factually accurate, do not diminish the precedential force of this Court's reasoning. (Ibid).
If a small farmer growing food for the sole use of his livestock could be bound up ion the agricultural products markets control regulations of the federal government, then so could the growing for personal use of marijuana for medicinal purposes even if sanctioned by the state of California.   The reason was simple though the result severe for fashioning the line between federal and state power to regulate commercial activities.  The Court  considered that the power of market regulation could not be disaggregated to the particular circumstances of any of the participants. "That the regulation ensnares some purely intrastate activity is of no moment. As we have done many times before, we refuse to excise individual components of that larger scheme." (Ibid). It is the market rather than the individual affected that counted for purposes of constitutional analysis. "The submissions of the parties and the numerous amici all seem to agree that the national, and international, market for marijuana has dimensions that are fully comparable to those defining the class of activities regulated by the Secretary pursuant to the 1938 statute." (Ibid).

It is important to note, however, that though there is nothing in the constitution that suggests that one or the other perspective is valid.  Thus, central to the dissenting opinion of Justice Thomas, is the choice of factual perspective form which to start the constitutional analysis.  For Justice Thomas, "Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything-and the Federal Government is no longer one of limited and enumerated powers." (Gonzalez, supra, Thomas, J., dissenting).

The choice of perspective, the court reminds us, is in the first instance the prerogative of Congress. That is, it was for Congress to determine that the regulation of markets had to be privileged in the construction of a regulatory scheme.  That the collateral interests of individuals, to the extent that in isolation they might not conform to the central objectives of the regulations, would have to be bent to the necessity articulated by Congress.  The Court's role was a modest one in these circumstances.  It must uphold the Congressional determination (choosing to regulate markets even at the expense of individuals) if it found that the choice had a rational basis. "We need not determine whether respondents' activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a “rational basis” exists for so concluding." (Gonzalez, supra, majority opinion).  Yet implicit in this test is the validity of the opposite conclusion--that Congress could have rationally concluded that it ought not to include these individuals within its regulatory scheme.  But the power of choice was in Congress, and the mere fact that individuals collaterally might not be engaged in interstate commerce does not make the aggregate of thew activities controlled any less a matter for interstate commerce regulation.

But rationality also and necessarily bumps up against a legally constructed set of structural limits in the prior case law, those of Lopez v. United States. 514 U.S. 549 (1995), and Morrison v. United States, 529 U.S. 598 (2000). But the majority opinion rejected the extension of the holdings and rationales of those cases to the realities of national comprehensive control and interdiction of controlled substances.
First, the fact that marijuana is used “for personal medical purposes on the advice of a physician” cannot itself serve as a distinguishing factor. . . .  Second, limiting the activity to marijuana possession and cultivation “in accordance with state law” cannot serve to place respondents' activities beyond congressional reach. The Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail. . . .  (Ibid).
But the majority remains troubled by the logic of its decision and its reading of prior cases.  The Court then suggests a pragmatic solution, but one that accepts the idea that the residuary power of states in the area of commerce has indeed shrunk to virtually nothing.  That solution centers on begging for federal largesse for waivers and exemptions of national policies to meet regional aims.  But this is not the assertion of power by the states as much as it is a delegation of power from the center. "As the Solicitor General confirmed during oral argument, the statute authorizes procedures for the reclassification of Schedule I drugs. But perhaps even more important than these legal avenues is the democratic process, in which the voices of voters allied with these respondents may one day be heard in the halls of Congress." (Ibid).

In dissent, Justice O'Connor emphasized the critical principles of federalism as a constraint on the broad reading of specific grants of federal authority, especially those in the Commerce Clause. "We enforce the “outer limits” of Congress' Commerce Clause authority not for their own sake, but to protect historic spheres of state sovereignty from excessive federal encroachment and thereby to maintain the distribution of power fundamental to our federalist system of government." (Ibid., O'Connor, J., dissenting). Justice O'Connor insisted that Lopez and Morrison applied both as case law and as the articulation of structural legal principles of constitutionalism.
First, we observed that our “substantial effects” cases generally have upheld federal regulation of economic activity that affected interstate commerce, but that § 922(q) was a criminal statute having “nothing to do with ‘commerce’ or any sort of economic enterprise.” Lopez, 514 U.S., at 561, 115 S.Ct. 1624 . . . .  Second, we noted that the statute contained no express jurisdictional requirement establishing its connection to interstate commerce. . . . Third, we found telling the absence of legislative findings about the regulated conduct's impact on interstate commerce. . . . Finally, we rejected as too attenuated the Government's argument that firearm possession in school zones could result in violent crime which in turn could adversely affect the national economy. (Ibid., 44-45, O'Connor, J.).
The dissent could not distinguish the case of the criminalization of private marijuana growing for medicinal purposes from the gun possession criminalization provisions at issue in  Lopez.  The distinction in emphasis of facts makes all the difference in the application of the cases.  The majority focused on the national market for drugs and the century old cases that validated congressional power to prohibit markets (the Lottery Case) as well as to regulate commerce between states, and it could not detach the activities of the California plaintiffs.  Justice O'Connor's dissent, on the other hand, emphasized the quite distinct growing of marijuana for personal consumption at the heart of the case, a set of facts that she, like the litigants, argued was central to and quite detachable from the regulation of drug markets central to the majority's opinion.  Here, where both sides agree on both facts and law, the only distinction, and one that is outcome determinative, is the perspective  that courts choose to adopt.  If one considers this a case of personal home grown marijuana for personal consumption, then emphasizing the markets based arguments seem remote and inapplicable.  If one considers this a case of markets regulation with incidental effects at the marginals of the market, then emphasizing the peculiar positions of some marginal market participants seems artificial and irrelevant. A political choice is wrapped within legal standards that are meant to constrain a political system that produces an efficient state from out of a set of fractured parts.

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