Jerry Pournelle looks at Solicitor General Kagan
1st July 2010
Might a legislature properly pass laws restricting what people eat? But of course we already have that. Might a legislature properly conclude that selling trans fats is as great a crime as it would be to sell heroin? If a legislature can forbid marijuana, why can’t it forbid tobacco? If you can’t sell carbon tetrachloride bombs as fire extinguishers (when I was a lad, there were Popular Mechanics advertisements inducing young people to make their fortunes selling carbon tet bombs door to door) why could not a legislature forbid you to sell butter?
But of course we are here discussing the powers of the states. I continue to ask this question: if it required the 18th Article of Amendment to the Constitution to allow the Federal Government the power to forbid the possession and sale of alcohol — prior to the 18th the Court threw out the Volstead Act — and the 18th was then repealed, under which provision of the Constitution does the Congress have the power to forbid the possession and sale of marijuana? Heroin? Cocaine? Forbid their interstate shipment, yes, perhaps, but forbid a California farmer from growing hemp for sale within California? The states have such powers, but does Congress?
I suspect that Kagan would not make such a nice distinction, but I have no way of knowing. Will the joining of a sociological jurisprudence law professor to a wise Latina make for a better Court? Or even add to its diversity?
Good questions all.