Living, breathing, constitutional conservatism?

For some time, I have argued that there is no meaningful constitutional distinction between the War on Drugs and Obamacare. Both are overreaches of federal power. And logically, if the federal government has the power to tell citizens what substances they can and cannot possess or put in their bodies, then it has the power to tell them what sort of health care to have. I realize that the penalties for violating the drug laws are much more severe than the penalties for violating the ACA, but that’s a different issue than the constitutional one.

But where it comes to the War on Drugs, many conservatives are totally in favor of the same use of federal power that they claim to be against in the context of Obamacare. An example is in today’s Wall Street Journal:

In 1970 Congress passed the Controlled Substances Act, or CSA, listing marijuana as a Schedule I drug, and thus illegal to manufacture, distribute or possess. Nonetheless, in August 2013 the Obama administration employed its now-signature response to disfavored laws, issuing a memo directing U.S. law enforcement to refrain from using “limited investigative and prosecutorial resources” to pursue marijuana-related violations of the CSA in states that chose to regulate marijuana businesses. The new law-by-memo told states they are free to ignore the federal ban.

The Controlled Substances Act is an exercise of Congress’s express power to regulate interstate commerce. The law declares that a “major portion of the traffic in controlled substances flows through interstate and foreign commerce” and that even locally grown and sold drugs have a substantial impact on interstate commerce. Drugs manufactured, distributed or consumed within a single state cannot be tolerated because they undermine Congress’s desire to stop interstate drug trafficking.

Got that?

Nothing new about the above view of federal power, but what drew my ire was that both of the authors are respected attorneys who led the war against Obamacare.

First, David B. Rivkin, Jr.

Rivkin is a former U.S. government official, having served under Presidents Ronald Reagan and George H. W. Bush. In 2010, Rivkin took on his highest-profile case to date when he agreed to represent a multi-state lawsuit—currently consisting of 26 state attorneys general against health care reform legislation signed into law by President Barack Obama in March.^[8] The lawsuit, filed in the Federal Court’s Northern District of Florida, argues the legislation is an “illegal expansion of Congress’ regulation of interstate commerce and unfairly penalizes uninsured people who refuse to buy into the program”.^[9]

So, the CSA (which makes personal possession of drugs a federal felony) is a perfectly legitimate use of the power to regulate interstate commerce, while Obamacare is an illegal expansion of the same power? How much of a stretch of the federal power to regulate interstate commerce is it to go from sending people to prison for personal possession in their own homes to forcing them to buy health insurance? I don’t think either is legitimate, mind you, but I think it’s obvious that the former is a greater invasion of citizens’ rights than the latter. The only distinction I can see between the War on Drugs and Obamacare is passage of time. The Supreme Court has given the WoD apparatchiks the rubber stamp more times and in more contexts.

But still, it’s worth noting that there was a time when the WoD barely survived in a decision which made a remarkable statement:

“Obviously, direct control of medical practice in the states is beyond the power of the federal government.”

The Supreme Court had held (in Linder v. United States, 268 U.S. 5, 1925) that Congress did not have the power to prosecute doctors who prescribe narcotics to addicts, but that thinking is long since been “superseded“:

With the passage of myriad later laws, including the Controlled Substance Act which gives no exemption whatsoever to Schedule I drugs, and the end of Lochner era, the holding of Linder has now been mostly overruled or superseded.

How did that happen? Was it the living breathing Constitution that “conservatives” so love when it breathes life into their favorite programs?

As to the other author of today’s piece, I think Elizabeth Price Foley should not only be ashamed of promoting such a double standard, but I think she is betraying her own principles.

Her first book, Liberty for All: Reclaiming Individual Privacy in a New Era of Public Morality (Yale University Press, 2006; ISBN 978-0300109832), asserts that there is a “morality of American law”, defined by the twin principles of limited government and residual individual sovereignty. These twin principles, moreover, reveal that there is a harm principle that animates American law and defines the moral use of governmental power to restrict individual liberty. In December 2006, the book won the Lysander Spooner Award for advancing the literature of liberty.

So, while it’s sad to see conservatives defending obviously unconstitutional federal power, it’s even worse to see it defended by someone with a libertarian background.

I wish these folks just come out and admit they love the War on Drugs and want to put people in prison rather than play these silly games.

MORE: M. Simon sees the problem as involving a lock on power by Conservatives and Progressives leaving libertarians and the “less law” faction with basically nowhere to go.

As to the court system, Damon Root (writing at Reason) sees “a clash of constitutional visions between the libertarians and the Holmes-Bork devotees.”

I think the conflict between libertarians and both of the “more law” parties is irreconcilable. Sooner or later, though, both parties may begin to fear the possibility of a popular uprising against the militarized police state they have created with their bloody War on Drugs.

AND MORE: Interesting analysis which will most likely be ignored by the GOP:

Beware GOP: Millennials Don’t Like What We’re Hearing

The Republican establishment seems unaware of the power of young libertarians.