I’ve never really understood the uproar over steroid¹ use in baseball. Unlike some other sports baseball lacked any actual rule banning steroids or performance enhancing drugs before 2004. True there was a policy (without any penalties) generally banning any baseball player from using or possessing any illegal drug or controlled substance but it’s also a MLB policy now that players can’t drink in their clubhouse. Surely you don’t feel that someone who snuck a beer into the clubhouse after a game would be a cheater do you? What about the players who bummed a valium for a plane flight? Sleep helps you play so it’s giving you an advantage on the field. Remember in the baseball culture of that time the use of steroids wasn’t considered a big deal. Besides, the substances used by the more sophisticated users very well might not have been scheduled, and thus not illegal², at the time.

Taking a broader perspective on the attitude we take to cheating in baseball it’s simply absurd to try and hang your the outrage at steroid use on the notion that it’s cheating. When a pitcher is caught scuffing the ball or applying spit it’s not a big issue the way it would be if they were found to be using steroids. Of course some would argue that steroid use by a player undermines the validity of their records by making it impossible to compare them to the past greats and thus damages the game. Why anyone would think that violating a policy that everyone understood wasn’t a genuine rule of the game should undermine the validity of your record but actually cheating during the game doesn’t count for that much totally baffles me but it doesn’t matter as the whole notion that tis nonsensical. As people have throughly documented past players have unfairly benefited from evils like segregation and rule changes to such a degree that the notion of comparing players from one era to another simply by examining the numbers doesn’t make any sense.

Finally, when pushed on these two arguments the people making a fuss about about steroids usage retreat to the argument that these players are role models and setting a bad example for children. Even if so where is the outrage over players who spend the night carousing, who leave their wives or don’t save enough money? Children see baseball players publicly flaunt all kinds of bad behavior all the time but they only hear about the steroid use because moralizing fans and prosecutors insisting on digging it up. Moreover, while these players certainly take some risk they aren’t desperate body builders, even with the steroids they live a healthier lifestyle than most public figures. In my view we should simply take the use of performance enhancing drugs as just another evolution in the long series of changes to the game.

So if the revelations about baseball players past steroid use hasn’t upset me what has? Government prosecutors threatening to prosecute a man’s wife and mother in law for tax violations just to pressure him into spilling the beans on Barry Bonds.** As I’ve said previously I think it should be illegal (frankly I would add it to the constitution) to threaten someone’s family to secure their testimonty. Even if the practice itself doesn’t seem repugnant to you if the defense can’t (openly) pay witnesses to testify for fear it would bias their testimony why should the prosecution be able to threaten their family with jail time? But even if you accept the practice is sometimes nencessery is the Barry Bonds case really that important?

I can’t believe that the government is threatening to screw over a man’s family just so he will help them prove Barry Bonds lied. That really is a new low.

What’s truly amazing about the Phelps bong incident is that people manage to express shock and outrage at his behavior with a straight face. Especially given the fact that they couldn’t have really found it that unlikely that someone in Phelps’ situation would smoke some pot. I mean some of the things they say would be too over the top for an onion story:

He should have known better this time, and at this point, you wonder if Phelps has a problem. He has shown up in plenty of pictures on the Web, and you never know how credible they are. But they become more and more realistic with each verified mistake. He promises never again. To me, he has promised that already wearing red, white and blue. Maybe that Olympic ideal seems hokey to some, but he has packaged it and made the most of it.

I particularly liked the attempt in this article to reach out to the pot sympathetic crowd by suggesting that even if it was ok for a random guy to smoke pot somehow it wasn’t for Phelps. Presumably because he was a role model which would have the harmful effect of….I know, letting random guys know it’s ok to smoke pot. Hmm.

Does she not realize how many middle- and high-school kids look up to Michael Phelps? That he’s on the front of Wheaties boxes right now? That we all warn our kids about the dangers of drug use? Most parents find that photo sad and disappointing and will use it as a Teachable Moment for teenagers. What Michael Phelps did was a shame, but adults’ defending—and even encouraging—his drug use are far more shameful.

This one just demonstrates the reasons I tend not to convince many people. I just don’t do the whole underhanded shift from, they disagree with me about what is dangerous, to, they must be recklessly encouraging behavior they know is bad. More on this later.

However, this whole situation raises a puzzling issue. If people realize that pot use is actually pretty common, indeed pretty common even in the sort of person they would see as being on the ‘right track’¹, why does opposition to pot remain so strong? I mean one might think that if many of your friends, major political figures you know, famous scientists and Olympian record holders all smoked up why would they think legalizing pot would be a big deal?

The explanation is that we don’t always, or even mostly, go from evidence to conclusion as we pretend it does. Often there is some reason we would like to accept the conclusion so we manufacture a story to tell ourselves about how we are justified in that belief. For instance we all realize that “My parents were catholic” isn’t a valid justification for accepting the doctrine of original sin or salvation by faith and works but yet somehow people who are born to catholic parents are very likely to be catholic and many of them would give you a very different explanation of why they believe in Catholicism rather than Islam. Something very similar goes on when it comes to moral issues in politics.

Most people in our society grow up hearing the message that even occasional pot use in college is some kind of shameful dirty behavior, the sort of thing that people might whisper about many years later. Unlike getting totally smashed on cheap vodka at college parties where, despite it’s danger, people are usually happy to publicly laugh about after graduation most people still don’t want their grandma² knowing they smoked up or even that they are okay with people getting stoned. Therefore when the subject comes up around the family table people have a strong incentive not to voice support for loosening pot laws. Indeed, if you have actually gotten stoned the conversation likely makes you anxious about being found out and the last thing you want to do is to give them cause to suspect you think smoking pot isn’t a big deal. Thus there is a strong pressure to adopt some kind of rationalization which lets you avoid thinking of yourself as a hypocrite without requiring you tell grandma that her worries about pot are overblown. Of course when you get to the age where you are having kids yourself an older sister or a prudish new friend take grandma’s place.

This is where your baby brother (alternatively your child) steps into the equation. You recognize that pot can become a harmful habit for some people. Sure so can WoW but if you buy your baby brother WoW for Christmas no one will view you as foolish and irresponsible for encouraging MMORPG playing. We want other people to think we are responsible and mature so we make sure to make grave sounding statements about the risks of pot, especially if grandma is in the room. Even in private we tend to feel guilty about telling a younger brother it’s ok to go smoke up where we wouldn’t have the slightest qualm about taking him out to get smashed when he turns 21. The harms we do by failing to be sufficiently cautionary are very concrete and those done by going overboard are diffuse and abstract so we are motivated to talk up warnings and dangers.

There are a whole host of ills to be laid at the feet of our CYA approach to giving advice but in the case of drugs it augments the granny factor and hands us a ready made excuse for our hypocrisy. Well sure, the reasoning goes, my friends and I can handle pot fine but people my little brother’s age/son’s age shouldn’t be able to get it. Or if you got stoned at that age you instead substitute a concern about the increased strength of today’s weed or it’s increasing association with hard drugs. Of course in actuality making drugs illegal tends to make them easier for youth to access (drug dealers rarely card) and stronger weed is actually more healthy weed but we aren’t evaluating an argument we are searching for a narrative that makes us the mature and responsible party and avoids a disapproving lecture/look from grandma without forcing us to think we are hypocrites. Once ‘grandma’ becomes on older friend and our little brother is replaced with our daughter it takes incredibly strength of character (or a bunch of hippie friends) not to just go along with the flow and accept this narrative.

Frankly, I’m not sure what can be done about this problem. The baby boomers seem to illustrate the fact that the pressure to conform and be thought well of is so strong that even people who smoked up back in the 60s have become the older generation who disapproves of anyone who is foolish enough to suggest to youth that pot smoking isn’t a big deal. I fear it is a stable equilibrium.

Kellogg is jettisoning Phelps because he was photographed smoking pot. I think those of us who disagree with the deciscion should boycott Kellogg in response.

If you watched so much as one event during this summer’s Olympics you probably heard about the extensive efforts to catch athletes using performance enhancing drugs. Now certainly using steroids, HGH or any other pharmaceutical training aids is cheating and the athletes who use them ought to be stripped of their awards. However, just because something is against the rules doesn’t mean if should be against the rules. So while we ought to chastise cheating athletes who surreptitiously take performance enhancing substances to give them an advantage over their rule abiding competitors does it make sense to have rules against doping in the first place? I think serious consideration reveals the answer is no. Regulations on the type of doping, bans on acute intoxication during competition and other reasonable restrictions make sense but the blanket rule against doping harms both sports and medicine.

In NASCAR (auto racing) the rules often impose a fair number of restrictions on the sort of car that can be driven in a race. When better car designs began pushing races to faster speeds restrictor plates and other design features were mandated to keep the sport (relatively) safe. Thus the rules act to prevent excessive risks to drivers but absent particular reasons to ban or require a practice they allow the teams to modify their cars as they see fit. The net result of this not only maintains the excitement of competitive racing it also encourages engineering advances that bring benefits to society at large. My vision would be something similar for medical enhancement. The rules would ban particularly risky/harmful medications while putting the substantial enthusiasm and advertising money available in sports to generate medical advances. Thus to justify the outright ban on doping one must be able to cite some harm the policy causes that outweighs this benefit as well as the entertainment value of seeing athletes perform even more incredible feets.

The standard objection to allowing doping is that it would make new records and achievements meaningless since modern athletes would be competing with the assistance of chemical compounds while the past greats had no such help (or maybe they weren’t caught). However, most of the emotional force of these arguments is really based on a misconception about how doping works. Somehow people imagine that they could just pop some steroids and go compete in olympic weightlifting next summer but this is simply not true. Sure doping can help athletes become stronger faster, recover from injury quicker and so forth but it doesn’t substitute for the insane dedication and time spent practicing. Moreover, since all the serious competitors will be doping it will still come down to the same factors it always has: luck, dedication, talent etc..

So putting aside the idea that somehow the striving and hunger to win that we love about sports would become irrelevant how much sense does this objection make? Not much really. The idea that somehow modern athletes and those of days past had comparable tools is pure fantasy. Take someone with the same amount of ‘natural’ talent and let them train using techniques from the 50s and modern techniques and their isn’t much of a question about who will win the event. Just the fact that modern athletes grew up with all the benefits of modern medicine and nutritional knowledge is enough to give them a huge leg up over the competitors of a generation ago. As if this wasn’t enough advances in equipment design certainly contribute to world records. The new seamless Speedo swimsuits supposedly shaved a significant amount off race times but that didn’t make watching Phelps compete any less exciting. Maybe you could avoid things like the new speedo swimsuits but even changes like using deeper pools can change race times.

Another common argument is that sports are somehow supposed to push the limits of human performance and that if doping was allowed we would no longer be seeing what the ‘natural’ human body could achieve. However, modern athletes already don’t reflect what a ‘natural’ human could achieve. These athletes were given antibiotics to recover from sickness as children, broken bones were set and they were generally kept in better physical shape than the people of just several generations ago. Moreover, there is simply no principled line that can be drawn between doping and the scientific analysis used to select appropriate vitamins and nutrients for athletes. Trying to insist on a no doping rule for athletes will become even more ridiculous as we develop compounds for the general public that make them more fit and healthy without the need for unpleasant time in the gym.

The final and last objection is that somehow doping would pose too great a risk to the athletes or they would no longer provide good role models for children. Given that we allow sports like NASCAR and let girls start training for gymnastics at super young ages this extreme concern about athlete health seems a bit disingenuous. Moreover, as I pointed out above these risks can be reduced and often these doping compounds can be used to speed recovery from injury. Given the potential medical benefits to society at large shouldn’t we try and only retreat to a total ban when we find that it’s impossible to retain a reasonable degree of safety. Moreover, by reducing the risks from surreptitious doping it may also make many athletes safer. The role model argument is outright circular. The only reason to think kids ought to believe that the managed use of medications under a doctor’s supervision for athletic training is wrong is because we’ve decided that’s it’s wrong. Sure we don’t want high school kids to use steroids so they don’t feel like a dweeb but that’s no more of an argument against the professional managed use of enhancing medications than the fact that we don’t want kids to speed is an argument that NASCAR should impose a 60mph speed limit.

In the chronicle of higher education yesterday there was a short snippet about academics taking performance enhancing drugs and if you have a nice proxy server you can read the longer article or the commentary in nature (you can also find the Volokh Conspiracy article that brought it to my attention). Now I was quite pleased with the reasonable approach taken in the Nature article. In particular I thought the following paragraph hit things right on the head.

Rather than individuals purchasing substances over the Internet, we believe it would be better to ensure supervised access to safe and effective cognitive-enhancing drugs, particularly given potentially dangerous drug–drug interactions. Such regulation must be evidence-based and a product of active dialogue between scientists, doctors, ethicists, policy-makers and, importantly, the general public. This may necessitate a new form of regulation because the remits of the existing health and drug agencies are for the regulation of medicines for treatment, not for enhancement.

If a new class of compounds (so far most ‘cognitive enhancers’ are effectively less euphoric versions of amphetamines) really is developed that appeals primarily to educated wealthy people rather than being associated with lower socioeconomic classes such a change in our regulatory outlook might actually occur. True, I’m skeptical that more than a modest cognitive enhancement effect is possible from drugs (they can’t fundamentally rewire the brain) but accepting the careful use of drugs as enhancements has the potential for massive increases in utility. While I doubt drugs are ever going to make us all geniuses there is no reason to believe that future pharmaceutical research can’t produce mood enhancing drugs with only mild side effects. The benefits to depressed people alone of not stupidly insisting that depression is always a disease (rather than an unfortunate extreme end of a distribution) and researching medications that might make everyone a bit happier would be huge¹. More broadly I’m sure that everyone has noticed that some people tend to be more happy and energetic than others (and studies have suggested these people are more productive as well). The benefits to society of a compound that could shift everyone’s baseline amount of happiness up to where it naturally lies for these bright happy people would be greater than any other change since the industrial revolution.

However, in the chronicle article we find a much less enlightened view from one interviewee.

The notion raises hackles in some parts of academe. “It smells to me a lot like taking steroids for physical prowess,” said Barbara Prudhomme White, an associate professor of occupational therapy at the University of New Hampshire, who has studied the abuse of Ritalin by college students. Revelations about the use of performance-enhancing drugs in professional baseball have stirred public interest recently, and she sees parallels between athletes and assistant professors. “You’re expected to publish and teach, and the stakes are high. So young professors have to work their tails off to get that golden nugget of tenure.”

Now I’ve always thought it was kinda silly to keep performance enhancing drugs out of sports² but there at least it’s merely a game and fairness is a principle concern. In academics, however, we are supposedly actually producing something of worth. We don’t try and tell academics they can’t spend more time on their work because other people have children to take care of or family obligations. It’s not about being a fair competition but about maximizing academic output. True, perhaps one might reasonably worry that these performance enhancing drugs don’t genuinely lead to more performance in the long run, i.e., they are a way of gaming the system, but short of that I see no reason why they shouldn’t be allowed.

Also I found it amusing the way everyone seemed to assume that it was unacceptable for students to take these sorts of drugs during exams yet no one tries to stop people with ADD from taking ritalin or amphetamine during exams and often even give them extra time. Of course ADD is a real issue but it falls on a continuum and the same drugs that help concentration with ADD have been shown to boost everyone’s scores on the SAT.

So California assemblyman John Benoit announced legislation today that would set up numerical limits for the amount of illegal drugs (I believe schedule 1 substances excluding marijuana¹) one could have in your blood stream and legally drive similar to the .08 BAC limit for alcohol. Apparently the lack of such specific limits is making it difficult to prosecute inebriated drivers (presumably because they must convince the jury of they reached some subjective level of impairment). This is a good reasonable idea that would likely save lives

But of course a proposal as sane and reasonable as this was too good to be true. Benoit has now said (same article) that he is seriously considering making this a zero tolerance law. Yup, that’s right apparently demonstrating our moral outrage that people are taking illicit substances is more important than saving lives on our highways.

As we all know from drug testing in athletes drugs can be detected in your bloodstream long after the individual in question has sobered up. Thus if you are a drug user the net effect of such a zero tolerance law would be to decrease the relative penalty for driving while inebriated. If you know that even if you wait till the next morning to drive the police could still throw you in jail because of the residual drugs in your bloodstream then why bother waiting? We’ve already (unreasonably in my opinion) expressed our moral disapproval of drugs by making them illegal but it’s criminally stupid to put our moral outrage over people’s lives. Not to mention the perfectly sober people who partied the night before who will end up in jail under such a program.

Of course if groups like Mother’s Against Drunk Driving are really about saving lives and improving highway safety I expect them to come out strongly against bills like this one. I On the other hand if they are about revenge and getting even with that type of person they will probably support this kind of zero-tolerance legislation. I’ll leave it to the reader to decide which is more likely.

Schwarzenegger said that pot is not a drug but better than that is his totally pragmatic attitude to the subject (“Why should I care if a politician takes sleeping pills every night so long as he can do his job?”).

Of course after the fact his media people rushed out to say he was just joking and that of course pot is a drug but it’s still great to see the mainstreaming of the attitude that pot isn’t a big deal.

Note that despite what sticklers like to assert the claim that, “Pot is not a drug” is not actually false or meaningless. There are clearly two different definitions of drug. One is the technical medical usage on which things like alcohol, aspirin, etc… qualify as drugs but people who have used aspirin or had a beer don’t answer affirmatively when asked “have you ever used drugs?” The meaning of drug in these contexts is something more like, dangerous addictive psychoactive substance¹. Applying the standard rules of conversational charity it is clear that Arnold was (reasonably) saying either that pot isn’t dangerous/problematic like other drugs or that it isn’t really socially forbidden.

So the American academy of actuaries just released a study widely reported as showing secondhand smoking costs nearly six billion, a figure that they suggest under reports the true cost as it does not take into account costs from other diseases. On the American academy of actuaries website their press release trumpets this sort of study as being of importance to help policy makers determine the right response.

Now without being able to find a copy of the analysis I can’t opine about their methodology, in particular what costs we would expect other pleasures to chalk up under this sort of analysis. In general I think studies like this without the analysis are pretty useless.

However, even without reading the study it is pretty clear it is downright misleading. Buried in the fact sheet is the remark, “Note the costs included here do not reflect the social or economic costs to society as a whole. For instance, the cost figures do not include any costs or cost savings to the government through social insurance programs.” In other words this report doesn’t include any savings due to early death leading to shortened social security/pension benefits. Additionally it seems clear from the fact sheet that only cost increases in smoking related diseases are included not the cost savings as a result of smokers dieing and not needing end of life care.

In effect this means that if secondhand smoking causes a terminal cancer patient to die after a $1000 dollars of treatment for pneumonia rather than requiring $101,000 dollars of terminal care this is counted as a $1000 dollar cost for secondhand smoke rather than a $100,000 dollar savings. Additionally it counts against secondhand smoke every day someone doesn’t work because of the effects of secondhand smoke but doesn’t credit secondhand smoke with every day people don’t need to work to fund retirement plans for people who die early. It’s like evaluating the costs of a life saving drug and only counting the costs of the side effects and not counting the benefits of the longer life. Interestingly I seem to remember the economist doing a calculation for smoking that included the early death factors and it came up with a pretty small number for the cost of smoking itself.

I suspect this sort of study is never questioned as it seems cold to complain about not counting the savings from death. However, if you have a problem with coldly adding up these costs you shouldn’t be in the business of trying to add up the costs. Certainly you shouldn’t be advertising your study as a tool for policy makers to judge the costs to society. But what disgusts me the most about this sort of thing is that no one would ever make this sort of mistake about say driving cars or any risky activity that is socially approved.

Apparently on 4/20 at the university of colorado there is a tradition to smoke out at 4:20 on some field. Apparently the campus police don’t like this much but instead of going there and stopping the pot smoking they instead decided to let them smoke pot and use surveilance cameras to take pictures of them. Now they have put those pictures on the web and are asking (and apparently getting) people to identify the photographed pot smokers. I’m not sure if the police would have a good legal case for marijuanna usage (wearing hemp t-shirts and smoking something doesn’t entail MJ use) but usually the accused don’t know enough not to confess.

There is absolutely NO justification of this behavior by the police, NONE WHATSOEVER Let’s say you actually believe in the war on drugs and buy into all that crap about how marijuanna is so much worse than alcohol and is harming our youth. In this case you believe it is justifiable to arrest people and otherwise inflict harm on them (denying financial aid as a result of drug conviction etc.. etc..) because you are saving youth from the ‘life deystroying’ effects of drugs.

If you really believe this and know people are going to be smoking at a particular time and place you have a responsibility to go STOP them so they won’t damage themselves and no one will try pot for the first time at this location. Remember it isn’t like these are hardened drug dealers or something these are college students, the very people the war on drugs is supposed to be saving from drugs. Not stopping the drug use and then getting people to inform on them afterwards is just vindictive cultural warfare.

This sort of tactic won’t deter people from smoking pot. Most pot smoking happens indoors or other places they don’t have security cameras. If they just didn’t want the field being used for pot smoking on 4/20 then they could have stuck a cop in a lawn chair out there. The only motivation for this is to strike a blow against a pro-pot culture these police officers don’t like.

I hope enough people are upset about this that the police are getting deluged with calls full of false information or that just waste their time.

Thanks to concurringopinions for the pointer

Recently the supreme court issued an opinion in Gonzales v. Oregon. In this case Oregon was challenging Ashcroft’s decision deeming assisted suicide not to be a “legitimate medical purpose” and thereby threatening doctors with loss of their ability to prescribe controlled drugs and potentially even criminal penalties. The supreme court decided 6-3 in favor of Oregon, holding that the controlled substances act (CSA) does not give the attorney general the power to prohibit doctors from prescribing drugs for assisted suicide. Roberts joined Scalia in a dissent and Thomas filled his own separate dissent.

I’m inclined to think that the result (allowing doctor assisted suicide in Oregon) is positive. While their are some coherent concerns about the effect on medical practice and doctor-patient relationships of allowing doctors to end life as well as preserve it I actually think the effects would be positive. Indeed, the very perception that just because a life is ended instead of saved assisted suicide is in tension with the a doctors role as a healer or the hippocratic injunction to “do no harm” is reason to believe that medicine suffers from overly simplistic notions of harm/healing and could do with a reminder that the ultimate aim of medicine is to alleviate suffering and improve the human condition. As an aside the common argument that doctors should repudiate assisted suicide in order to comply with the hippocratic oath is just absurd. Not only is this a brute appeal to the minority viewpoint of a small ancient sect but the original oath is obviously inapplicable to modern medical practice (abortion is proscribed, nepotism demanded). As a consequence there is no one hippocratic oath sworn by modern doctors, instead each medical school chooses each own version many of which avoid the controversial prohibitions. However, a full discussion of the consequences of physician assisted suicide will have to wait for another post. Here I want to focus on the legal question.

My motivation in writing about this decision is to correct some common misconceptions on the left (though this link is just the best argument I found on point not someone on the left) about the hypocrisy of Scalia and Thomas in voting to uphold such an obvious federal invasion of state’s rights and illustrate the danger of evaluating the justices and courts with only casual knowledge. I myself fell into this trap when I first heard about the decision in this case. Aware of Scalia’s strong record on state’s rights surpassed only by Thomas’s I was convinced that Scalia’s intellectual integrity had become a victim of his catholicism and that Thomas had also been unduly influenced by personal values. Having found my first impressions radically in error before, and generally (but not always) impressed with Scalia’s arguments (though not his assumptions) I actually went and read the opinion and dissents. Having seen the arguments and issues I find my opinion has changed radically. I now think that Thomas’s dissent was right on target and Scalia’s dissent was required by his judicial philosophy. Lest this seem like too much of a Scalia love fest I want to point out that I have serious doubts about his ability to consistently justify his concurrence (scroll down) in Raich and I am beginning to suspect that Scalia’s focus on the text of statute inadvertently encourages personal bias to sneak in through the choice of definition.

The real problem behind all of this is the decision in Raich. As Thomas points out in his dissent there just isn’t any principled way to distinguish this case and Raich (he is basically saying I told you Raich was a bad decision see what it entails). Despite all the distracting issues the real issue underlying Raich is whether or not the federal government has the power to deem a type of treatment supported by respectable medical organizations and states doesn’t count as a valid medical treatment. The reason there was a conflict between state law and federal law in Raich was not because the federal government deemed marijuana so dangerous that even legitimate medical purposes could not be tolerated. The CSA does not permit that sort of prohibition. The conflict existed only because the government deemed marijuana to both, have no currently accepted medical use in treatment in the US and lack accepted safety for use under medical supervision. While the exact wording may be different this is essentially the same issue at play in Gonzales v. Oregon: does the CSA give the federal government the power to override state judgments about the legitimate use of controlled substances?

Any attempt to argue that it would be unconstitutional to ban assisted suicide also runs directly into Raich (hence the reason this wasn’t really argued). Sure one could argue that congress is seeking to regulate the interstate commerce in marijuana and banning the intrastate use of marijuana is sufficiently related to this end to qualify but this would be mere sophistry. It is plainly obvious that the congress wanted to prevent the use of drugs and the interstate market in drugs was merely a vehicle which let them achieve that end. If one wants to interpret the commerce clause so broadly that the mere connection of the activity to interstate congress is enough to warrant regulation that is fine but the same argument now applies here. The intent of the CSA was to limit the interstate market in controlled substances to those going to legitimate medical purposes and to accomplish this interstate regulation it is necessary to ban the entirely intrastate activity of assisted suicide. Quite simply the court choose to give congress essentially unfettered power to regulate items which are sold on an interstate market and controlled drugs are such an item. I believe the court should distinguish genuine

Basically I think there is more than enough blame to go around on these cases about drug law. The conservative justices should be striking down federal drug laws on federalism grounds and liberal justices should be obligated to uphold a right to drug use for the same reasons they supposedly favor Roe (privacy, right to control your body). However, before one blames anyone remember that the supreme court is in a political bind. It just isn’t politically feasible for a court to dismantle federal drug prohibitions but as their primary intent is to combat an entierly intrastate activity (drug use) not regulate commerce in drugs even a moderate approach to federalism that sought to restrict congress’s intrastate power to just that which is necessery to genuienly regulate commerce or interstate transport would be forced to strike them down.

Ultimately though I think all the opinions in this case are defensible. The majority is right that congress probably did intend the CSA only to infringe on state roles only in regulating drug ‘abuse’ where abuse is not just any misuse but the thing that heroin addicts, steroid users etc.. all have in common. I’m unsure if this is a valid distinction for the court to make as ‘abuse’ in this sense is a moral judgement but it is certainly a reasonable position. However, this is not a deciscion that someone like Scalia with his focus on the text of the statute could consistantly support.

Below I will go into the actual arguments in the decision and explain why the situation is alot more complicated than a quick look would suggest.

UPDATE: Clarified that link is just to someone making the argument that Scalia and Thomas are betraying their federalist principles in this case not someone on the left themselves. The better criticisms usually come from your own side, at least that is what I want to believe given all the liberal arguments I try to repudiate here. (more…)