The Supreme Court somehow held that the feds can regulate what you do in your own home (in this case, growing marijuana for personal use) because it could have a butterfly effect on the interstate price. (Constitutionally, the feds can only regulate _interstate_ commerce.)
I think much more likely is that it will just be made legal federally sometime in the next decade. Marijuana legalization has majorities across ideologies (https://news.gallup.com/poll/514007/grassroots-support-legal...) and even though the inability to create federal law on something so popular seems like a good case study on how the US system doesn't always do a good job representing it's actual people, it seems to be at a critical mass where it can't be ignored for much longer. Even my parents' friends who are conservative have started doing weed.
I think the issue is this isn't seen by politicians as a motivating vote driver. It is, however, a motivation for someone to go out and vote against a politician.
That's ultimately what keeps things like MJ illegal. There are just far too many people that will get upset about it if it were made federally legal.
My state, Idaho, has one such politician that is constantly bringing up and trying to find ways to keep the wacky tabacy out of the state. Including trying to amend the state constitution for it. He does this because he's mormon and the mormons are scared of the devil's lettuce.
This gets at something I think a lot of people don't really understand. They see polls that show strong support for policy X, and then complain that politicians don't enact it. What they fail to consider is that while a strong majority may be in favor of the policy, it's not the top (or top 3) priority, and they will support candidates that have the opposite position on X, if they support their top priority.
This is situation where well thought out (and moderately constrained) referendum process can help achieve the majority desire for a policy that would not otherwise be considered important enough to drive the selection of representatives.
Yeah, that's essentially what happened here in Oregon.
And the 2nd chapter of it is after the ballot measure passed, the state liquor commission drug its heels for a couple years, because most of their executives are far more conservative than the median voter here (a side effect of a lot of them being Salem locals vs Portland, but anyhow).
Eventually the state legislature got fed up with the obstructionism and passed a "ok, we're just doing it how CO did, stop stalling" bill.
And here we are. The sky didn't fall.
There's a lotta ways ballot measures can go into stupidity, but this is an instance where it helped force the bureaucracy to align with the majority voter position.
>(a side effect of a lot of them being Salem locals vs Portland, but anyhow).
Because their industry is in bed with government so their priority #1 is coordinating with the people of that industry. The actual "value producing" activity of buying, distributing, selling liquor and managing those relationships is a sideshow.
> They see polls that show strong support for policy X
i would imagine those polls are full of selection bias - even if the poller is trying to be as neutral as possible. People who would agree to participate in polls tend to have strong(er) feelings than those who don't.
> referendum process
instead of referendums, there should be a representative vote by the elected politician, but with an option for the voter to submit their own vote (provided they pass a cursory examination that certifies they have read and understood the bill they're voting for).
E.g., a senator or an elected politician has N number of votes for a bill, where N is the number of people he/she represents. If those people don't want to participate in a bill voting process, the politician will vote on behalf of them (like they do now, supposedly).
However, an individual voter who wishes to, can certify their understanding of said bill, and rescind the representative vote for his electorate and vote himself directly on the bill. The politician will now have N-1 votes on that same bill.
This means for issues of importance, the individual can choose to participate. For issues that they don't care about, but have a vague sense of direction, they have their votes delegated to the politician that they elected once every X years.
Also it doesn’t matter if there’s majority support for a lot of things because most people don’t vote. If you want to get a policy enacted make sure you and your friends vote in elections regularly.
You should argue with him he's acting like Satan. The mormons (I used to be one) say that Satan wanted to force everyone to be good, Jesus wanted each person to have free will and choose.
I personally would be okay with having it legal if smoking could still be banned in multifamily complexes. I don't care if my neighbors are using edibles, but since I know that legalized weed means more smoke coming from my neighbors' balconies, I will always vote "No" when marijuana legalization is on the ballot in my location.
It's not about the smell. Secondhand marijuana smoke carries many of the same harmful compounds as cigarette smoke [1]. The issue is involuntary exposure in shared living spaces. And ballot measures are typically all-or-nothing: you can't vote yes on edibles but no on smoking in your apartment complex.
Smoking (even of tobacco) can generally be banned in the CC&Rs of properties (multifamily complexes is the case where this makes the most sense) and by the landlord in any rented property, multifamily or subject to CC&Rs or not.
Until we start throwing cigar, pipe, and cigarette smokers in prison for smoking where I can smell it, I'm totally okay smelling some pot. The playing field needs to be leveled.
Government tobacco smoking bans in indoor spaces accessible to the public (or outdoor spaces near the entrances to such spaces) are not uncommon in the US, nor are private contractual (via leases for rental properties and sometimes CC&Rs that bind property owners) bans for non-public spaces.
I don’t want my toddler exposed to secondhand pot smoke. Unfortunately it’s more common than secondhand cigarette smoke in my experience. I wouldn’t get upset on my own behalf but he’s too young to choose and it’s my responsibility to act in his behalf as much as I can.
It got through via a ballot initiative. It wouldn't have been passed by the legislators in UT without that.
That's why the guy in my state, C. Scott Grow, has also been fighting to make ballot initiatives harder. He's terrified that an MJ initiative would make it's way in that way.
Republicans in Utah are also trying to remove the power from ballot initiatives because they're upset the Utahans passed an anti-gerrymandering initiative.
Yaeh this is a thing states do. South Dakota went in cahoots with the courts to cancel the ballot initiative to legalize weed, and California went in cahoots with the courts to sabotage prop 8 (the banning of gay marriage).
That's not why it was "struck down" by SCOTUS. It was struck down because California intentionally did not defend the case in SCOTUS, leaving the proponents (i.e., those representing the majority vote) to defend it in SCOTUS. Then SCOTUS determined the prop 8 voters didn't have standing to defend prop 8, essentially defaulting the decision through a perverse chickenshit technicality and remanding it back to the lower courts.
SCOTUS did not find gay marriage bans unconstitutional in that case. Only the 9th circuit did, and California intentionally stopped defending it at the 9th circuit because the 9th circuit is and was pro gay marriage.
If 90% of party A supporters support the issue, and 70% of party B supporters support and issue and the election is close to 50/50 with B in power. B putting forward the issue can make them lose the next election because that 30% will either withhold their vote or vote for the other party.
But if that same issue is a ballot measure, then the 90% of A voters and 70% of B voters will overwhelmingly pass it.
This is what I mean by a motivating issue. Nobody will withhold their vote if MJ stays illegal. But there are certainly people (mostly religious) that absolutely will withhold their vote if a politician makes it legal. Even if that's a super popular move.
That's why pretty popular things aren't done. It's also why unpopular things can be easily done. If nobody withholds their vote because of the "send the kids to the mines" act (because they are happy about the mandatory Bible study), then a politician can get away with really horrible things so long as they make the core of their voters happy. After all, you aren't going to let the other guy win now are you.
It's what's broken about parties and FPTP elections.
It's been popular (with over 50% popular support) for the last decade though. The major opponents are the alcohol industry, big pharma and the prison industrial complex. Their lobbying efforts are too powerful. We (the people) don't stand a chance.
You’re probably right, though I dread the possibility. I cannot stand the smell, and one of the best things about moving from California to Texas was avoiding that pervasive smell being everywhere. Negative externalities of personal behavior really need to be handled better in our society. If you want pot to be legal, fine, but only inside your own personal enclosed house.
Even as a daily weed smoker myself though, it's hard not to acknowledge that a more liberal marijuana stance in a geographic location does lead to that smell being more commonly encountered when in public and out and about.
Personally I don't mind, almost the opposite, but for people who don't like the smell, obviously they feel differently. Good thing we can have different policies in different places, and people can generally, one way or another, move themselves to other places. Could be easier, but could also be way worse.
See also, cigarettes, cigars, and pipe smoking. I find those smells about 10x as offensive as smoked weed. I don't see the HN crowd coming out against tobacco despite these two being roughly equivalent in use. And that 20 ft from the door thing is a joke when it's on the sidewalk you have to walk through to reach the bus stop or your car. At least the pot smell doesn't stick to my clothes until they're washed like the tobacco smell.
I dunno, I think it should be legalized and operation of a car or other heavy machinery while intoxicated should result in a swift and brutal public execution. Win/win. :D
But maybe I'm just a little jaded after having lived in a legalized area and almost being run down by hotboxed cars more than once.
Functionally in many places where the usage is unlawful, harmless use in people's private homes has very low risk of prosecution while dangerous or disruptive public use is still curtailed. I find it easy to sympathize with people who consider that a better tradeoff.
I strongly agree with de-federalizing any such decisions though-- your comment on freedom to move is a great one. I recently relocated to a place where it wasn't legal from one where it was, any when evaluating differential freedoms in making that decision the subject came up and I decided I probably actually preferred the restriction due to the collateral harms (although I strongly chaff at any restrictions on private activities or maintenance of your own body). I wouldn't say it was a major factor in the decision to move (other policy/economic/environmental/security matters were drivers) but for me it wasn't a reason to not make that move.
Your nose is literally a special flower. What smells good to it may not to another and vice versa. I far prefer the smell of pot smoke on the sidewalk to the smell of tobacco smoke. You youngsters missed the years of indoor workplace smoking and smoke breaks with 20 smokers surrounding the office entry door. It's just another smell to you. But for those of us who lived through the bad days of smoking, it's a toxic soup, a smoke inferno hell pit we're not thrilled about revisiting right outside of our favorite restaurant. A little bit of grass burning, no big deal. A cigarette and my meal's ruined.
> but only inside your own personal enclosed house.
Isn't it usually illegal to smoke things like cigarettes inside rented homes, legality aside? And don't most people rent? That seems like a whole can to deal with.
Oh no, the thought of catching a whiff! No one must smoke in texas, since you know, everyone follows the law. Smoking weed only started in general with legalization. It was mythical beforehand.
A farmer was told he could only grow X acres of feed on his own land; feed that he had no intention of selling and was being fed entirely to his own livestock on the same land.
This seems to overturn that in part, but until Wickard is overturned, and the interstate commerce clause reigned in, there will be weird side effects of it like this.
Circuit courts may not overrule Supreme Court precedent. Accordingly, this decision purports to rest on the “Necessary and Proper” clause, avoiding Wickard (decided on commerce clause grounds)
In particular, Necessary and Proper as it relates to the taxing power, which the challenged statute relied upon, having been passed decades before the scope of Commerce Clause powers began their expansion, let alone Wickard v. Filburn.
The party that wants the precedent reversed loses in the lower court (because the lower court is bound by current Supreme Court precedent) and appeals to the Supreme Court. The canonical historical example is Brown v. Board of Education, which was appealed to the Supreme Court explicitly to ask them to reverse Plessy v. Ferguson, which lower courts had relied on as precedent.
Additionally, one can argue that the state of the world has changed enough that assumptions made by the USC at the time of precedence require reversal.
You have identified a root perversion. Roscoe Filburn’s wheat did not leave Ohio or even his farm. He didn’t offer it for sale; the wheat was for his own use. It was deemed to “affect interstate commerce” and thus within the scope of the interstate commerce clause. With that, a provision intended to remove power of states to tax each other’s goods and services and promote a free trade zone instead became a mechanism to nitpick and micromanage every last little detail, ossify existing practice, protect large players, give loopholes to the politically connected, and enable mass regulatory capture. It cannot be overturned quickly enough.
You’re almost certainly correct. Kagan, Sotomayor, and Jackson would argue this consequentualist line. Thomas, Alito, and Gorsuch could be persuaded by textualist or originalist arguments and are the most likely overturn votes. Kavanaugh was a key man on standing up and defending the so-called PATRIOT Act during the George W. Bush administration, so no way he knocks out this pillar.
ACB talked a strong originalist game during her confirmation but since shown it’s not her core philosophy. Although Roberts appears inclined to rein in the administrative state, he’s aligned chaotic neutral and thinks himself too clever.
Already down 4-3 and having to persuade both Barrett and Roberts to join a ruling overturning parts of Wickard, another Dobbs seems wildly unlikely even though both precedents were poorly reasoned. At best, they agree to some marginal or technical reduction in scope. It seems equally likely that she sides with the four, in which case, what does Roberts do? He may need to make it 6-3 to control who writes the opinion. Such strong numbers would be unfavorable enough on the surface that he might persuade her back to an even more tepid limitation. The concurring opinions that it would induce from Thomas, Alito, and Gorsuch would be entertaining reading, at least.
There's no way Roberts would vote to overturn this given his history of pretending a penalty directly remitted to the IRS for not carrying health insurance was not a tax for the whole ACA fiasco.
But Filburn must needs be overturned. The sovereignty of states depends on it.
Please suggest one, but ideally three, things that you think that overturning Wickard would lead to that would cause K, S & J to vote against doing so?
The federal civil rights act of 1964 is probably a good one. The clean air act is another. Probably others like consumer protection laws, healthcare regulations, safety laws (OSHA), etc. These are all based on the expanded powers from wickard v fillburn. If portions of these were challenged and overturned, I believe those justices would not view that as a good thing.
In Gonzales, O'Connor dissented and Scalia, who was too afraid of pulling the rug out from under the administrative state, issued a concurrence. So, surprises do happen.
I was prepared to excuse his vote as an exceptional situation until Sebelius, when rather than revisit and fix his mistake in Gonzales he chose to embrace the affirmative mandate vs passive prohibition distinction nonsense, a deux ex machina fit for one purpose and one purpose only. Fool me once....
There's a good argument to be made that it was just good luck for Scalia's intellectual legacy that he died before the conservative supermajority on the court got rolling, because he was already well on his way to replacing principles with expediency: https://www.scotusblog.com/2026/03/justice-scalias-uncertain... Like the old saying goes, it's easy to criticize, much more difficult to offer constructive, durable solutions.
I call BS. Wickard is about, effectively, "police power" based on a broad interpretation of the scope of federal/interstate commerce.
As noted by other commenters, the concept of federal control of interstate commerce was intended to prevent states from interfering with trade between themselves and other states, and to create some "higher" authority for aspects of commerce that truly transcended state borders and control.
Most of what has happened in terms of programs and regulations fits very comfortably into that understanding. What doesn't, which I don't think is a lot, should probably go away anyway.
If you can use the commerce clause to prevent a guy growing wheat on his own property and feeding that crop in its entirety to his animals, there literally isn't an activity the federal government can't regulate.
Correct. I'm suprised sexual orientation hasn't been regulated by the same stupid logic. Clearly if you're not making babies you're effecting all kinds of interstate commerce.
That would also invalidate the civil rights act, as the (similar) 19th century CRA was already struck down because the 14th amendment binds against discrimination by public not private actors. The reason why the modern CRAs weren't also struck is because they rested on the laurels of Wickard v Filburn declaring the CRA (this time) is about regulating "interstate" commerce.
fixing the interstate commerce clause is one of those things that needs to be done eventually, but will likely never be done - even if just to "fix" it so everything remains the same but is based on simpler allocation of powers than through a "loophole".
That would be an improvement in the same spirit, as the modern CRAs are also unconstitutionally limiting over what one chooses to do with their own property. The scope should be limited to government-involved services and facilities, as those must serve all possible taxpayers. We live in a more connected, option-saturated information age where even bigots more often than not understand the utility of at least doing business politely and making nuanced exceptions. Egregious offenses are corrected by social pressure and business competition. The current regime of ambulance-chasing liabilities inserted into every organizational, contracting, and hiring process harms far more people of every race and sex than it helps.
>Egregious offenses are corrected by social pressure and business competition.
This doesn't work when bigots are willing to pay a premium for discriminatory services.
Also, do you feel the same way about the FHA and Title VII? Those also involve regulating what you can choose to do with your private property, but I don't want to assume that you don't consider housing and employment to be distinct from, say, hotels and grocery stores.
I think it should be repealed. It's legally baseless. How hard would it possibly be to get anti discriminatory Ammendments into the constitution? Surely at least 2/3 of reps are not that unfit.
Gonzales v. Raich (2005) is a pretty straightforward application of the precedent of Wickard v. Filburn, 317 U.S. 111 (1942) [0] rather than a novel, out-of-the-blue new interpretation of the Constitution.
You say that like interstate commerce regulation was more egregious for wheat than it was for marijuana.
But Raich is significantly more egregious: the theory on which the government won Wickard v. Filburn, that private consumption of wheat could affect the interstate market for wheat, doesn't even apply, because there can be no interstate market in a substance that is illegal to trade.
Thank you for your work here. Overcoming the argument that a threat of prosecution doesn't create standing is a huge advancement for the cause of freedom-- in light of Babbitt the state never should have been arguing otherwise nor should the lower court have ruled that way but they were and that line of argument is protecting a lot of facially unconstitutional law.
I suspect that if that ruling was made, then many other drugs being made at home for personal use might become legalized, at least unless states decide to go and ban it too. Note that I am not taking a position here on if that's desirable.
If the law is broken, fix the law. Don't pervert logic to pretend that the existing law dictates what you want is correct.
If Roe v Wade is based on faulty logic, cool - overturn it. But it then becomes Congress's responsibility to replace it with the correct version.
The federal government isn't supposed to police people's personal behavior. "Federal" comes from "federation" as in, the group of states in the union. It's the job of the legislature to write the laws, the job of the judiciary to interpret the laws, and the job of the states to do these things for areas that don't rise to the level enumerated in the Constitution.
When you get it twisted, you end up with this tug-of-war where corrupt politicians try to put biased judges on the bench to mold the rules to their whims without actually having to pass them.
If you follow that argument to its conclusion, you end up at: fixing the law requires amending the Constitution, and if the law for amending the constitution is broken, the remedy is revolution. Most participants prefer the current practice instead.
If anyone considers that outcome to be strange - that's how most things are supposed to be regulated. It's doubly specified in the wording of the constitution and 10A.
If one takes the opinion interstate commerce means buying, selling and transporting.
It's also how the current system works. Most drug convictions are based on state law. Federal drug prosecutions are 2% of the total. Every state has its version of controlled substances act.
Yes, regardless of that specific case I'm hoping to see a series of Supreme Court decisions that will eviscerate federal government power over internal state affairs and restore the original intent of the 10th Amendment. Long live federalism.
It will be an interesting next decade or two on this topic. The federal government increased its power in part to coerce States to end Jim Crow, to broaden personal liberty (like with Roe v. Wade), establish a social safety net, and set minimum environmental protection standards. If we keep seeing federal power being used to compel a reduction in liberalism among the States, the sides supporting "state rights" seem likely to switch.
Adding to that, if the supreme court continues to make realistic federal administration harder by tearing down executive rule making authority and requiring more explicit Congressional rule making (which can't scale in our current system), we'll continue to see less stable and predictable federal regulatory actions - which might further compel the states to step in...
But where will States raise the taxes to make this happen? While the federal government seems willing to do less (in terms of classic liberalism policies), it certainly isn't reducing its spending.
And how will States defend themselves from federal intrusion if they do start to claim more of their power - will we see armed stand-offs between national and state forces?
We’ve already seen states try and regulate outside their borders; TX with abortion as one example. How does a weaker federal government protect against this, or do you believe it should not? And how does this not devolve into 50 fiefdoms?
A lot of stuff does have interstate implications. Especially now that most corporations operate in an interstate fashion.
That said, I agree that it's overused. I personally think that the 9th amendment should be used in a lot of cases, like civil rights, instead of the interstate commerce law.
The supreme court, however, has basically decided that the 9th amendment doesn't really exist.
You could just as easily stuff most of those things under the "general welfare" clause if you do the same rigamarole of years and years of precedent hand-waving. We live in a post constitutional state. The constitution is just something worked to backwards so the guys who function as our priests/gods point to the document because that's the only way to feign some sort of legitimacy to our government.
Ultimately none of us signed the constitution and all of those people that did are dead. It is a religious artifact used by the whig
-god people to argue they are right. Not something followed with faith to the historical context nor literal contract.
(edit: to below trying to compare bad-faith ICC to good-faith general welfare, you must apply similar levels of creativity and bad faith. Ban things through high or impossible to pay taxation. "Tax" behavior to force people to do something in a certain way, make very heavy penalties for not paying the tax, and also make it extremely difficult to buy the tax stamps (this is how they did drug control until they decided to use the new fraud of "interstate" commerce).
For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars … But what would have been thought of that assembly, if, attaching themselves to these general expressions, and disregarding the specifications which ascertain and limit their import, they had exercised an unlimited power of providing for the common defense and general welfare? I appeal to the objectors themselves, whether they would in that case have employed the same reasoning in justification of Congress as they now make use of against the convention. How difficult it is for error to escape its own condemnation!
I agree, from the other side of the aisle. The Constitution is merely a well-guarded piece of toilet paper now. Culture matters way more than legal documents in preserving a nation, and our culture has waned too significantly. I believe we've entered the "Byzantine" phase of America.
> Another case based on interstate commerce: the US ban on racial segregation.
Specifically the federal ban on private segregation. The states would still be able to ban it.
Moreover, is that the sort of thing you even want as an ordinary statute dangling precariously off of the commerce clause instead of making it a constitutional amendment to begin with?
I wouldn't be surprised if this one unironically goes given that Uber/Lyft are fully doing "women only" ride shares now.
Gen Z / Alpha have embraced X-"realism" and fully accept essentialism/reject "intersectionality". They're far more conservative/prudish than millennials, even at their young age.
> Gen Z / Alpha have embraced X-"realism" and fully accept essentialism/reject "intersectionality". They're far more conservative/prudish than millennials, even at their young age.
This does not meet up with my experience with them at all.
Just quick check, what percentage of onlyfans creators are Gen Z / Alpha vs other nonsense year demographics?
First, Gen Alpha is in their teens, so it's kind of hard to say what is happening there or will happen.
Second, there is a growing divide between gen Z males that are skewing conservative in some ways. Their church/religious attendance is up, but overall attendance is still down.
Gen Z females that are the most liberal demographic in history.
At this point I don't see any difference between the two. Modern religions are shaped (warped, really) by the larger organizations that control them.
Sure, the concept of "spiritual/non-scientific belief" isn't a parasite in and of itself, but even if the existing organized religions ceased to hold their sway, and people treated religion as a personal thing without centralized authorities, I still don't see an end to (for example) people trying to get their religious beliefs enshrined in law. That's parasite behavior.
If they reversed Gonzales v. Raich they'd be under a lot of pressure to reverse Wickard v. Fulburn, which would have such wide ramifications I just don't see the court doing it no matter how warranted.
Yes, it would. But there isn't currently a law limiting the amount of tomatoes one can grow especially for personal consumption. In 1938, the Agricultural Adjustment Act was passed. This law tried to control the prices of food by determining quotas for production. Filburn was allowed to grow ~11 acres of wheat. He went and grew 23 acres of wheat, setting aside the overproduction for personal consumption while taking that ~11 acres to market.
These treaties are ancient and mostly irrelevant, especially outside the topic of hard drugs. Unless you're doing harm to the other nations, no one will do anything.
This paper is all the way from 2012. Since its publication, many countries have pushed the limits to far greater lengths than what it talks about. Canada remains a signatory to all the old 60s-80s treaties about drugs, but can you guess what the consequences were when we legalized cannabis in spite of all of them? No one cares about these.
It's not about decriminalizing marijuana - it's about the absurd assertion that the federal government can regulate what you do personally because "yadda yadda yadda…interstate commerce!"
The problem is if you say the government can’t regulate MJ, then all drug regulations fall apart.
On one hand you should have a right to buy whatever you want at 21( which should be the minimum enlistment age), but I’d be concerned about Billy selling homemade GPLs or whatever.
> The problem is if you say the government can’t regulate MJ, then all drug regulations fall apart.
No, that's not what's being said. If you grow your own plant for personal use, there's no need for the federal government to be involved. If you grow that plant and then try to sell it, then there's some commerce which does fall under some regulation (we'll leave the interstate nuances aside). Having the fed being allowed to say you cannot grow in your house is one step away from saying you are only allowed to perform missionary position (no other positions are allowed) between the hours of 7-8pm, but not at all on Sunday.
Okay. So if you decide to visit a friends house does him sharing still count as personal use ?
In many communities you have a guy who cooks plates of food and sells them. While technically this is illegal with out a permit, it’s usually tolerated.
I’m all for the legalization of everything for adults, but it’s a very complex issue. Education is the way here, not punishment
No one argues these things are not able to be regulated. Instead, per the 10th amendment, it must be left to state law since Congress does not have unlimited power and may only legislate where power has been granted to them by the constitution.
There are specific prohibitions on certain categories of state laws, like granting titles of nobility, creating non-gold/silver currencies, etc. The federal government cannot constitutionally regulate sex positions, because anything not explicitly covered in the Constitution is reserved to the states, or the people. In that broad grant, however, the states individually can make or avoid making law on any topic.
As others have mentioned, the Supreme Court has frequently worked around the Constitution for reasons that made sense to them at the time, including the original ruling that this one overturns.
>The federal government cannot constitutionally regulate sex positions, because anything not explicitly covered in the Constitution is reserved to the states, or the people.
That being said, there's probably not a constitutional way to enforce laws regulating sex positions. Even if you don't agree that such laws are clearly discriminatory in intent (let alone impact), the privacy violations necessary to prove guilt "Beyond a reasonable doubt" almost certainly violate the Fourth Amendment, and any theory of harm would implicitly (if not explicitly) rest on religion.
This is all assuming you don't accept Griswold as a reasonable constitutional argument that pretty obviously would extend to the kinds of sex people have.
> That being said, there's probably not a constitutional way to enforce laws regulating sex positions.
Right, but until someone gets arrested for this, nobody has standing to challenge the constitutionality of the law itself. It is one of those unenforceable laws. Even biblical law required witnesses (never just one) before being able to prove adultery.
I believe the original idea of the Constitution was that most things would be regulated at the state level.
This is pretty much already the case with marijuana, where it's illegal at the federal level, but in practice if it's legal in your state then it's legal.
"Pretty much" is doing quite a bit of work there. The feds ignoring marijuana use in states that have legalized or decriminalized it is the DoJ actively deciding not to prosecute MJ cases. They could absolutely send the FBI or whatever into a state with legalized marijuana and raid dispensaries and arrest people if they wanted to.
I looked at the actual decision [1] and didn't see Filburn mentioned once. I find that odd. Filburn [2] was a controversial and far-reaching decision that said that the Federal government's ability to regulate interstate commerce extended to people growing wheat on their own property for their own use. The rationale was that by growing wheat you weren't participating in the interstate wheat market. That seems like a wild interpretation to me but it's Supreme Court precedent at this point.
So I found this footnote:
> The government does not challenge the district court’s Commerce Clause
analysis on appeal. Accordingly, any such argument is forfeited, and we do not address it.
That's interesting. Here's a legal analysis that does bring up the Commerce Clause and Filburn [3]. I really wonder why the government didn't raise this issue.
I knew just from the headline this was going to be a 5th Circuit decision, and it was. This is the same circuit that is perfectly fine to override "state's rights" for other issues.
It's possible that the government thought that if they did try to challenge the Commerce Clause analysis, then the Supreme Court could have struck down Filburn. They'd much rather lose narrowly on this specific case than have Filburn reversed entirely.
SCOTUS did a pretty hilarious soft "strike down" of Wickard where they basically determined the gun free school zone act (GFSZA) violated interstate commerce clause. So congress just added "in interstate commerce" to the GFSZA and now it does the exact same thing even if there was no interstate commerce involved, and nothing involved ever crossed state lines or actually entered interstate commerce.
So SCOTUS basically solved this by saying the law had to say "in interstate commerce" but it is basically just there as a talisman to ward away challenges, a distinction without any difference as it becomes a tautology.
I don't agree that requiring a talisman is irrelevant-- ineptly drafted laws will lack them and fail more easily. The legislative effort to add it may not happen later, especially once judicial review has spoken negatively of the underlying constitutionality of the law.
It also is not of no effect-- it's an element of defense and people have escaped GFSZ act because the government failed to satisfy interstate commerce (and internet search suggests the some courts have taken it to mean that the presence of the gun in the school zone itself must have impacted interstate commerce, rather than just the gun's past purchase did). Every element the prosecution must prove at any level increases the marginal cost of prosecution and makes it less likely to be imposed on more marginal cases.
That seems like a pretty over-reaching interpretation. It makes sense in the context (needing to support federal economic control during WW2). But in some sense the economy is a dynamic system that touches and is touched by almost every decision we make. I made a pot of coffee this morning, should the federal government have the ability to decide whether or not I’m damaging the cafe market by not supporting my local cafe?
The entire 10th amendment is basically being ignored because interstate commerce policies and rulings. For that matter, the 1st, 4th and 5th aren't being upheld either.
The word "interstate" does not exist in the text of the Constitution.
There's arguably some merit to your position, but the argument that some case law is invalid because it doesn't meet the definition of a term defined in other case law is circular and incoherent.
Decisions like this illustrate what a hollow farce the modern federal courts’ approach is to Constitutional governance.
To be clear, courts are not supposed to change policy or make new policy, they are just supposed to interpret the law as written.
So supposedly this ruling is “not a change in the law” but rather a discovery that actually the law has always been this way but oops, someone read it wrong 158 years ago and literally everyone has read it wrong for the ensuing 158 years.
Until now, when an unusually wise and discerning small group of people finally read things the right way.
I strongly support the substance of this decision, the ban was stupid overreach. But I also recognize that decades of agreeing with the substance of similarly silly “discoveries” has created a situation where federal judges have essentially infinite leeway to inject their own opinions into the law under cover of “wow, I finally discovered the correct interpretation” (no matter how tortured).
With my respect for you as a person, I think your idea here is demonstrating both ignorance and cynicism to the way the law works.
This type of interpretation of law is by design.
When lawmakers write a law, it’s specifically the judicial branch’s job to interpret it, which is exactly what is happening here.
It’s also exactly how you describe by design: legislators can pass laws that say whatever they want. They can pass a law that says that all left-handed people are subject to a 50% income tax even though such a thing would clearly violate the constitution. Legislatures can make illegal laws just by having the votes to do so. The role of the judicial branch is to interpret the constitutionality of laws that are made.
Critically, a lawsuit has to challenge a law’s legality and constitutionality in order for it to be interpreted as unconstitutional. There also has to be a harmed party that shows they have standing to make that lawsuit.
It’s entirely possible that nobody brought this specific argument to a judge in the last 158 years. It’s also entirely possible that what is acceptable by reasonable people in society has changed over time, which can alter the interpretation of laws. That is normal, expected, and by design.
I think comments like yours unnecessarily demonize “activist judges” when this is the designed function of their role.
“They can pass a law that says that all left-handed people are subject to a 50% income tax even though such a thing would clearly violate the constitution”
I think that would be constitutional, but in conflict with other laws.
How so? Left handed people aren't human. Just like how criminals aren't treated like normal humans with equal rights.
Seriously though, I don't think it technically violates anything given that we do have a set of humans (criminals) that we treat unequally. Culturally we believe theft and murder gives us the right to treat such people who do such things unequally and we've encoded that into law. It is simply another culture shift to interpret left handedness as the same thing.
I mean the example is absurd but it's a valid example. Maybe a more realistic example is pronoun usage and the forced recognition of multiple genders other than two. Taken to the extreme we would have to accept that anyones made up gender is real and we will be forced to recognize their beliefs that these things exist.
In CA you can already get this classified as harassment and get fired from your workplace.
And just to be clear I agree with the whole made up gender and pronoun thing. If you want me to refer to you with they instead of she or he that's fine, but the point is that all of this is clearly culture/opinion based and none of it is a universal right because what is "universal" is ALSO an opinion.
The left handed tax law could be passed and declared unconstitutional almost instantly under a challenge brought by any individual that referenced the equal protection clause of the 14th amendment, to any federal court. if the government appealed it at all, the appeals court would agree with the lower court, if the government appealed it again, the Supreme Court would also agree with the appeals court and lower court, and it would be a phenomenal waste of time.
That's the only validity of the example.
Nothing occurring in the court system matches the angst of people that view recent appointments and decisions to be invalid. Anything overturned only affected the day to day life because there was never an actual federal law passed at all. The courts are operating much closer to how people imagine them, than in prior times, despite people believing the opposite is occurring. Media.
You're missing the philosophical principle that the more laws you have the wider the breadth of the domain that laws can interpret becomes, and that laws generally accrue. This is not by design, and there are jurisdictions which explicitly curtail this by having sunset laws.
The overwhelming use of civil instead of common law by the world would beg to differ that there is any consensus on this.
I agree with a lot of the advantages of common law that can sort of legislate through precedent. But it does make it basically impossible to be on notice of what is illegal and what isn't, particularly in the modern world where not only are there hundreds of thousands of law and thousands of pages of federal "regulations" bound as law but you also have to know all the precedent and asterisks to the interpretations to know what is actually illegal.
The power of the judiciary to "interpret" the constitution was a huge chink in the armor of the Constitutional order. A handful of unelected judges can effectively amend the constitution via simple majority, but can only be "overruled" by the people if there is extremely broad opposition (as a constitutional amendment requires 2/3 of both houses)--which is, of course, a total inversion of the democratic-republican principles which brought our country into being. The practical effect is that, while the people have some limited democratic control over the government, control of the state has been wrested away from them by the Judiciary. This was fine so long as the Judiciary saw themselves as honest arbiters of the constitutional order, but the moment the Judiciary began to see themselves as architects rather than mere arbiters, the constitutional order was at an end.
The check elected officials have on this is to pack the courts. This is what FDR threatened to do to get through (at the time unconstitutional, now magically "not") a bunch of popular legislation.
The size of the Supreme court is not defined in the Constitution. So, packing the court is not unconstitutional. It is dishonest and shady as hell. But, the only check on the power of each branch are the other two branches that don't desire to be sidelined by one branch growing more powerful. All three branches are supposed to be in contention for power within the bounds of their interpretation of the Constitution. It is the duty of the other two branches to deem an action of the third branch as unconstitutional.
But, the system has been broken over time. Congress abdicated the majority of their power to the executive and somehow judicial became the official arbiters of constitutionality.
Only if it could be done in an apolitical way, which seems impossible in the current political climate. The legitimacy of the US Federal Government depends on the perceived continuity of the (now mythical) constitutional order. If one party or the other packs the court without bipartisan support for their nominees in the Senate, it would be denounced by the other as an authoritarian end-run around the constitution--as a revolutionary rather than a mere procedural act. IMO this would be more likely to foment disunion than it would be to restore the bygone constitutional order.
The fabrication of legitimacy is indeed the main task of the supreme court.
However violence is another way to project legitimacy. Putting someone away for life or drone striking a goat farmer provides real legitimate proof of power.
The government is much stronger than it was 100 or 200 years ago. So perhaps it can dispense with appearances of judicial legitimacy using the currency of violence. It's not clear they need to continue with the fiction of an impartial court to hold their grasp; like a space ship they can jettison that hallowed out rocket having already safely been placed into orbit.
FDR is written about phenomenally in US history books for reasons that don't seem to match the reality of what happened. We can separate foreign policy wins from domestic policy losses, just like we do now.
The now-heralded New Deal was getting torn apart by the Supreme Court, program after program for half the decade. And the remaining parts of the New Deal still exist on shaky constitutional ground if you really look at how much of an abberation they are and how they survived. Spoiler alert, for things that remain its nearly impossible to get standing in Federal Courts to question them and the people that could get standing aren't interested and benefit from them.
FDR threatened to pack the courts, just like modern presidents and party constituents demand.
It was actually very partial that the FDR-era Supreme Court backed off from that threat. So to consider our current Supreme Court to be the aberration is inaccurate, it is even more autonomous.
Everything I look at gives me the opposite conclusion of the public discourse, except when I'm in very small legal circles.
Isolating yourself to small legal circles can unfortunately open yourself to the vulnerability of mistakenly appealing to the authority of legal training that has specifically been tailored for success in the system we're in, which may optimize for coming to conclusions that help you win cases rather than optimizing for some other analysis. Looking at the bigger picture is an entirely different skill set than having legal training to be a good lawyer, so I think it's folly to place in special stake in "small legal circles" for this and in the worst case, might usher you into an echo chamber built out of practical adaptation.
If I wanted a healthy view I might include those with legal backgrounds but they would only be a small selection of the landscape of ideas to draw from, I certainly wouldn't place special stock in the "legal" community.
I'll watch out for that. But ultimately I do want my view of the world to be the law of the land, which means "win cases", specifically reflecting my view and my currently obscure arguments. My observation is that populist arguments are the ones that fail because they don't understand the mechanisms and obscurity.
A now-less-obscure view is based on the observation that the New Deal used a completely novel and expansive view of the interstate commerce clause that completely subjugated the states and essentially created a parallel nation overlaying the collection of states - what was called the Federal government for practicing federalism was now only nominally federal, as Congress now only grants exceptions for state autonomy just to retain support on occasion. Despite how disruptive it would be to review this arrangement, this 100 year use of the interstate commerce clause is completely on shaky constitutional ground
The entire federal agency apparatus could be Thanos-snapped out of existence, just like the 1930s Supreme Court was doing
(I don't want that specific thing to happen, and I don't see the alternate federal authority for most of the agencies and their regulations if it were to happen, so that would be very disruptive)
I don't view the New Deal changes in constitutionality as prevailing through some from of reasoning of arguments per se, just projection of power. Projection of power is unlikely to be changed through lawfare. Usually it is not relinquished without violence. The violence that set the stage for consolidation of federal power, IMO, was in large part the civil war (removal of secession as a check on federal power, IMO the most powerful check states had) but of course also the concerns from the aftermath of WWI.
The fact the ICC was used is the least consequential part of the whole thing. That's just what was picked by the whig-gods to present legitimacy to the projection of power. Could have just as well been a proclamation from god under some other system. If the ICC expansion non-sense is struck out of some kind of convenience for some matter they are attending to, I don't think it changes much, just means the priest will utter some other magic phrase.
I don't think it does demonstrate that at all, it would demonstrate that if there was a prior court challenge were it was found to be constitutional. but there was not, this was the first court challenge, hundreds of millions of people, maybe over a billion over the last 150 years never thought to take it to federal court
one person finally did, and this decision matches what a lower court found in 2024, this is a pattern of consensus actually. the government (executive and legislative branch) is losing, while the judicial branch has complete consensus
this would actually be the worst example of anxiety about a fictionally different modern federal court, and seems more so to be an example of not knowing how they work at all
one suggestion that I've seen in other democracies is that a law passed by the legislature can be sent for constitutional review immediately by the President, instead of simple sign or veto. In the US system, all laws can be passed and it takes someone challenging it, and of the people that challenge the law they have to find a way to have "standing" - as in, prove how they were affected by the law - which is a huge risk if the law has a penalty you have to risk being affected by. That's how we have a massive nearly infinite set of laws that have never been challenged.
Missed in the previous discussion: methanol is irrelevant. Grain based ferments have essentially zero methanol.(And methanol risk is a function of its concentration relative to ethanol — the treatment for methanol poisoning is… ethanol!) even fruit based fermentations with significantly higher pectin concentrations only produce trace methanol, and it’s not all that well concentrated in a distillation due to azeotropes (which also says that throwing out the heads doesn’t help that much).
Methanol poisoning stories in the news almost exclusively result from people trying to sell denatured or industrial alcohol. The biggest risk in home distilling is fire.
> the treatment for methanol poisoning is… ethanol!
My grandpa drank a shot of schnapps every night and called it his medicine. I thought it was a euphemism but apparently he was actually taking an antidote prophylactically. You can't be too careful. He never once got methanol poisoning.
> Only 18% of the tested 56 samples met UE regulation regarding methanol content of alcoholic beverages (0.4% in alcoholic drinks containing 40% ethanol). The highest concentration of 2.39% was found in a plum brandy. Plum brandies contained significantly higher amounts of methanol than brandies made from other fruits (0.91 vs 0.52%, p = 0.01)
> Methanol poisoning stories in the news almost exclusively result from people trying to sell denatured or industrial alcohol
Pretty sure this was a relic of prohibition right? The feds would contaminate ethanol with methanol to keep people from drinking it, but then they hurt a bunch of people and never faced any consequences...
> Pretty sure this was a relic of prohibition right? The feds would contaminate ethanol with methanol to keep people from drinking it
We still do this now. We don't do it because alcohol is illegal, we do it because we levy higher taxes on non-poisonous alcohol, and if someone decides to drink the poisoned alcohol, they deserve what they get.
During the covid period, the price of hand sanitizer, which is thickened alcohol, rose to exceed the price of drinkable alcohol.
Several beverage factories proposed to rework themselves to produce sanitizer instead, which would have been good for everyone.
But they couldn't, because federal law would have required them to poison the sanitizer, which would have contaminated their machinery so badly that they would have been unable to switch back to producing drinkable alcohol afterwards.
So - even if we ignore the idea that intentionally poisoning people is wrong - there was a serious cost to the legal regime, one that still exists.
This is false. Several breweries and distilleries started producing sanitizer basically overnight [0]. The requirement to add denaturing components to alcohol was suspended during the pandemic specifically to allow it [1].
As someone living in the Balkans, home brewing is a national passtime for every nation around. When every family has its own recipe for brewing alcohol, killing ourselves would've been achieved many centuries ago if it was a real concern. Methanol is an issue when some dumbshit decides to cell chemically produced trash on industrial scale instead of buying the expensive ingredients.
As I said, this happens when someone tries to sell illegally produced trash created not by brewing but with sugar, chemical essence, and whatever they've mistaken for ethanol. The tax on alcohol creates a black market and some people taking part in it are either dumb or lazy and those are the cases you hear about.
Was it missed or intentionally downplayed/ignored because people came into the discussion with priors that they were eager to maintain?
Seems like these sorts of "yes it could be unsafe in theory but the reality of physics and incentives make this mostly irrelevant" type things get missed far too often certain parts of the internet to be coincidence.
That said, the fact that it dropped on a weekend did it no favors the first time around.
Speaking as a brewer, I can tell you that tons of people who should know better actually believe the methanol thing and will even quote some sciency words to make their argument. I think its a case of bad information coming from black market distilling being propagated uncritically. People who know better (licensed distillers) have no incentive to argue against it.
> [Judge Edith Jones] also said that under the government’s logic, Congress could criminalize virtually any in-home activity
Well, yeah. This is essentially the holding in Wickard v. Filburn, which seems to be in tension with this decision (overturning that would be great but it’s not the role of the circuit courts of appeal to do preemptively)
Also, this line is quite funny on its own because while understand what she actually meant, it can be very easily reinterpreted as "only actions committed out-of-home should be crimes; murdered someone in your home? welp, our hands are tied, have a nice day".
* the murder is of a federal judge or a federal law enforcement official
* the killing is of an immediate family member of a federal law enforcement official
* the murder is of an elected or appointed federal official
* the killing is committed during a bank robbery
* the killing takes place aboard a ship at sea
* the murder was designed to influence a court case
* the killing takes place on federal property
This is the question I'd love to see asked to people running for President. Name something you think the States can do that the Federal government is prohibited from doing.
The answer isn't something we should accept as an opinion, though. For example, laws prohibit the federal government from (direct) involvement in elections.
I think you are confused. The constitution explicitly grants Congress the right to pass laws regulating federal elections:
> The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.
Sure. But by the text of the constitution (the thing we made up) Congress does not have the power to criminalize “anything,” but only things in specific areas. Everything else is left to state law.
For those wondering, the opinion[0] doesn't address the Commerce Clause power (and Wickard and Raich) becaue the government abandoned that argument. See footnote 5.
The Commerce Clause issue is raised in our other case[1] that's now pending before the Sixth Circuit.
Bought and rigged up a 'hand sanitizer plant' about five months into COVID. Populated the thing with thermocouples, load cells and automation with nodered on raspberry pi and a bunch of esp32s flashed with tasmota doing sensing and control. Everything talked over mqtt. Great little architecture and having it highly automated allowed me to focus on the parts that were less easily controlled for.
I had a load cell under the collection jar that would adjust heat input (via PWM to SCR) to achieve a steady output rate (dW/dt) via outer PID loop, then lower the heat to just below boiling when it got to 700mL to keep it hot but pause output. It'd play a tone, I'd swap in a new jar then resume ignoring the whole thing. (I'm lying, I'd sit glued to that thin little stream of sanitization precursor teeter on breaking up the entire time.)
I stopped messing with it right before starting to measure/vary water supply through the condenser coils so I could more directly manage reflux ratio. Also had planned a float/load cell to calculate specific gravity.
All sorts of little side quests and fun mix of art/science to get into.
You know, if any of those other hobbies start to lose their lustre. :)
(for real though, the nodered on pi controlling a squadron of esp32 workers over wifi/mqtt was really nice, in case you would have any use for such a thing in any domain)
Haha I actually have a bag of chips but never bought a bath large enough to be worthwhile. Started going down the juniper/citrus/rosemary/coriander/etc route instead.
The best liquor I ever had was by a state police detective who had been home distilling since he was 12. It was made from rye and corn, but tasted like peaches.
I think it is kind of magical to witness the process. I only experimented a few times, and never aged it, so every was very sharp. The best was a sharp brandy made from a bottle of wine I bought. The worst was using a leftover keg of beer, which bittered the copper pipe, so everything after tasted like gin.
I would recommend people try it. You can make one out of copper pipe from a hardware store, a few fittings and a pressure cooker. Be safe, of course, and remember that ethanol is used as a preventative for methanol poisoning :)
The best I’ve ever done was a double distilled Spanish box wine we picked up for 1eur/l. The wine was undrinkable, but the brandy was sooooo smooth.
Next best was cheap tokaij furmint, distilled once and then mixed back into some of the undistilled wine. Basically the same thing as pineau de charante, but Hungarian and on the kitchen table.
I'm not sure if it extends to box wines or Spanish wines, but my main complaint of bottom-shelf wines in the US is that they're pure sugar/acid/alcohol with almost no extra flavors and pretty bad distributions of the main components (especially being far too sweet). A small pattern I'm noticing in your description is the presence of sugar in the distillation inputs. Assume I know nothing about distillation; is that relevant?
> A small pattern I'm noticing in your description is the presence of sugar in the distillation inputs. Assume I know nothing about distillation; is that relevant?
Sugar should be completely removed by a proper distillation setup (although a lazy setup can allow some "contamination" with sugars).
The substantial issue is not "unconstitutional" or "revenue", but instead "corporate protectionism". The elephant in the room.
There are certainly concerns about home distillation. The question is whether We address those concerns uniformly or whether protections of "tax revenue" is really protection for corporate interests.
We live in a time of toxic corporatism. Not all corporations are toxic, but those who prioritize their interest over the common good are indeed toxic. Everyone has the right to use nicotine and smoke cigarettes. You can buy them - if old enough - anywhere. But the use of cigarettes is toxic. As are vapes. But some corporations believe that their wealth is worth all the early deaths and health costs that a lifetime of smoking brings.
It is the behavior of these corporations that is the issue here. Those who take the Friedman Doctrine to toxic extreme. The courts have promoted these greedoconomy by enacting United vs FEC and other anti-democratic policies. In contravention of their duty.
Corporate interest have become so powerful that we have become a corpocracy rather than a democracy.
Jeff Bezos has "Democracy dies in the dark" as the motto of the Washington Post. Democracy dies with the Friedman Doctrine and United vs FEC. Thanks Jeff and to all of the other corporate overlords.
It's been way too long since I've taken a political science course, but does this mean that the ban is struck down for the entire country, or just the area that the 5th Court of Appeals covers?
The ruling only has binding precedent in the 5th Circuit, other circuits aren't bound to follow it. Formerly this kind of ruling would come with a nationwide injunction to force the issue but now that those are severely curtailed by the Supreme Court it's only binding to the courts under the jurisdiction of the 5th circuit.
Decisions in other circuits can be very persuasive to other circuits but they're not required to agree the same way a Supreme Court ruling is binding. Circuit splits are moderately common and usually trigger a review by the supreme court if an appeal wasn't filed for the earlier decisions.
Seems like a perfectly valid one. If the government is violating the constitution or a persons rights why should there be suits all across the country to get that recognized? Especially when the question isn't on something with a lot of particularized tests that's sensitive to the exact case, eg 4th amendment law? Why should rights be so dependent on someone in my particular part of the country having sued?
> If the government is violating the constitution or a persons rights why should there be suits all across the country to get that recognized?
Because one judge in one county shouldn't be defining the laws for the whole country? Sure it's great when they issue a ruling you like, but what about when it's a ruling that you don't. If it's a knife-edge situation then letting several judges rule and having the supreme court sort it out is the right thing; if there's an obvious right answer then every court will rule the same way and it doesn't matter.
> Why should rights be so dependent on someone in my particular part of the country having sued?
Your rights are always dependent on your willingness to sue to defend them. It's nice if someone else does the legwork and sets the precedent, but you shouldn't depend on that.
It's rarely down to one judge in one county though, most are entered pending appeal and the appeals court can immediately put the injunction on hold or in cases like this the first injunction might come from a circuit court who's far from one judge, by the time it gets to a circuit it's gone through multiple judges and some cases are heard by a bank of judged instead of just one.
> Your rights are always dependent on your willingness to sue to defend them. It's nice if someone else does the legwork and sets the precedent, but you shouldn't depend on that.
I don't have a spare million sloshing around even if I could get granted standing for various things I would like to defend. It's not just a problem of willingness.
On the other side, why should one crazed/corrupt judge in some state which has nothing to do with me be able to infringe on my freedoms and make my life worse? Worse, why is it possible to jurisdiction shop for the single bad actor and impose your will on the entire country?
You're not wrong, but (like most issues in a 350M-person country) it's complicated. The system is tailored to some expected level/type of corruption and bad actors. If you expect that the government is basically fine and that out of 50M people per region surely somebody will file suit if the issue is important then the current system makes a lot of sense. You get judges with more knowledge and awareness of your local issues, anything important still gets addressed, and you're resilient to some degree of random bad judges and bad actors. If those expectations are out of whack then you get worse outcomes.
In reality, the world is complicated enough that even boiling down the lists of judges and whatnot to that simple of a description is misleading at best. Neither solution is anywhere near optimal by itself. So...what next?
Yeah it's a definite mixed bag and maybe the solution is to require them to be approved by at least a multijudge panel at the circuit level before going in to place. In effect that basically already happened though, the normal pattern was for injunctions to be stayed for a few weeks pending the appeal and the appeal court would be able to extend that stay if they believed it was flawed or unjustified. The characterization of it being "one crazed judge" doesn't really hold up to the pattern of their actual use, and where judges didn't put in a stay the appeals court could as well.
Only the 5th court of appeals. However if you get caught elsewhere your lawyer will have a good appeal grounds just because your area will need to decide if they agree. If all areas eventually agree it probably never will get to the supreme court. Once several different courts hear this and make a decision if they disagree the supreme court jumps in reading all the logic of everyone below them to try to find a real answer. (It doesn't always work this way, that is the textbook ideal way, but the real world is often different).
Note that unless you think nothing of spending 20 million dollars on lawyers this is probably not something that you want to fight.
Prior to this year, the entire country. Today, thanks to SCOTUS shenanigans, it likely only applies to the states involved in the lawsuit, LA. But who knows, hard to keep up with the game of calvinball the SCOTUS is playing.
Probably though the old pattern was that the plaintiffs would request and the Circuit would issue a nationwide injunction with the ruling when finding that a law in full unconstitutional.
Now we have the weird situation where the constitution is more patchwork because you have to get rulings in all the Circuits or wait for one case to make it all the way to the Supreme Court.
It doesn’t say that. It says that the D.C Court of Appeals issued one in 1963, and then quotes the DOJ as saying “ nationwide injunctions remained ‘exceedingly rare’ for a few decades after 1963[,]” notwithstanding one issued by a district judge in New York in 1973.
Regardless of what you think about nationwide injunctions, your original assertion that “prior to this year,” a decision by a federal appellate court would apply the entire country is categorically false.
I am not really a fan of liquor, but I do like the idea of having skills which are universally valuable.
If you air dropped me into a random village in Africa I doubt I could 'code for cassava' but I could almost certainly make a living if I knew how to set up a basic pot still and safely create booze.
You could sanitize and disinfect with that alcohol! You could also make extracts of any plants nearby that were useful. Whiskey and vanilla beans are sufficient to make vanilla extract!
Sub saharan africa already has a very large informal distilling network (especially of bananas), a niche largely reserved for women in many regions (not sure for what the reason is for that exactly).
Historically, brewing, fermenting, and distilling are all "wife chores", probably because of the feminine-coding you mention... until it becomes highly profitable, at which point men take it away.
Wine has always easy to trade. Mead and ciders, ditto.
Beer/ale, prior to preservative hops, doesn't keep long enough to be viable for intercity trade. The acceptance of hops in a communities' drinkers coincides with a gender change in brewers (documented in PhD dissertations and books).
Distillation always results in a shelf-stable product; ergo it quickly becomes male dominated in a cash society (even supplanting cash in colonial America!).
The US refused to defend the Commerce Clause, so the circuit court did not consider it, though the Commerce Clause precedent would have likely demanded a different result.
This is circuit split engineering by the administration, meant to allow the Supreme Court to overrule its precedent on the Commerce Clause or whatever.
TLDL: During prohibition, US government required adding 5% methanol to industrial alcohol, hoping that this would stop bootleggers from selling it as liquor. It was sold anyway, resulting in many deaths.
As I understand it, this only applies to the three states in that district, all of which also have statewide bans against it.
My state (Missouri) has the most lax home distilling state laws in the nation, which allow residents to produce up to 500 bottles per year. Well, at least theoretically, since the federal ban takes precedence.
Great - but this will only until home distilling becomes popular in which case they will find a new reason to prohibit it. A company will produce a home-distilling gizmo with a fancy screen and app to go with it. They will raise some few $M's and have news articles written. Probably there will be a subscription consumable of some kind. Then there will be some bad press and they will make it illegal and the fancy home distiller will become useless do to a lack of software updates.
Homebrewing beer and wine was illegal at the federal level until 1978, and the sky didn't fall when that changed. Distilling is the same kind of personal-use activity — the main difference is that the law just never caught up. Good to see the courts pushing this forward.
If you have a stock pot, a steel bowl that is large enough to sit on top of the stock pot, and a Pyrex measuring glass, you can start distilling now.
Put the glass in the center of the pot. Fill the pot with not enough mash to float the glass. Top the pot with the bowl. The condensate will form on the bowl and run towards the bottom center of the bowl, where it will drip into the glass.
I was able to distill a few bottles of home made apple wine that I had screwed up some additional flavorings on. It took a couple of hours for 3 or 4 bottles.
You'll have to do your own research on the finer details of making this work. I figured it out from first principles in the middle of doing it, so it's not that hard. Hell, people have been distilling for centuries, before they even knew what caused fermentation. Anything pre-Industrial Revolution peasants could do, I should be able to figure out in my modern house full of power tools. I'm not here to teach you how to do this, just inform that it's possible with equipment you likely already have.
> I was able to distill a few bottles of home made apple wine that I had screwed up some additional flavorings on. It took a couple of hours for 3 or 4 bottles.
My grandfather used to make something called Apple Jack using a method known as freeze distillation. He'd put fermented cider (widely available in rural New York) in a cask and place it out in the barn on a really cold night. The water would freeze, but the alcohol would not and could be tapped.
So "the water freezes, the alcohol does not," is not actually how freeze-distillation works. The entire batch freezes solid. You then let the block melt and collect the first meltings. If you start off with a 5% ABV solution, freeze it, and then melt off half of it, you'll end up with two halves where one is maybe 7% ABV and the other is maybe 3% ABV. You will need to reprocess those halves to further concentrate (yes, both halves, you want the alcohol from the 3% portion, too, but you have to do them separately or you're back to where you started) with your level of efficiency being limited primarily by your patience and how cold your freezer can get. Probably not cold enough to get above 20% ABV [0].
One problem with freeze-distillation is that it's more like removing watery alcohol and taking everything else than it is like in boil distillation where you're trying to remove alcoholic water and leave everything else behind. So you still need to make multiple runs to get the ABV up, but boiling will remove impurities, whereas freezing will concetrate them.
[0] IDK, that's just a guess, I'm not inclined to look it up. I'm not writing a reference guide here.
Just telling you how my father remembered it. Not sure how big the cask or barrel was, but if time and temperature are controlled, how will that affect the rate of ice formation inside the cask? What happens to the remaining unfrozen liquid in terms of ABV?
It'll be interesting to see how many people get methanol poisoning from trying their hand at it without doing the research properly. That being said, so long as it's for private or non-profit use, I don't really see the harm here.
>It'll be interesting to see how many people get methanol poisoning from trying their hand at it without doing the research properly.
If you're into home brewing or distilling, the first and only comment people completely unfamiliar with the process say is something about going blind because of methanol. It's disappointing because the process is so rich with history and really interesting problems to solve but the zeitgeist is completely poisoned by prohibition-era propaganda.
Methanol is only ever a tiny portion of the fermented output and that's only with grain fermentation. There's nowhere near enough to blind anyone. Fruit or sugar fermentation does not produce any methanol. In that case the unwanted contaminate is ethyl acetate, which is less harmful but still ruins the drink. It gives bad whiskey its burn and causes hangovers.
In both cases the procedure is the same: run the still very slowly at first to increase reflux, pulling off the "foreshots" until contaminants are gone. In the process the still head temps will stabilize as the various low boiling trace compounds are eliminated.
Then one runs the still at a normal rate, collecting heads, middle, and tails, and blending those according to one's skill to get the desired product.
The middle jars are the clearest and cleanest alcohol, but the heads and to an extent tails contain aspects of the flavor and lots of good alcohol. Whatever isn't used for final blending will be collected and recycled back through the still in the next batch.
Properly distilled moonshine is very clean and smooth, like drinking water. No burn and no hangover. If it burns the tongue or gives a hangover, that's because it was not distilled to the highest standards. Most commercially available alcohol isn't.
Badly distilled moonshine is 100% a product of prohibition and would not exist for long in a free market, because drinkers won't tolerate it.
In this very comment section an earlier post claimed the opposite (that specifically grain fermentation did not produce the big M), and sounded just as knowlegable and plausible to the lay-ear.
The primary mechanism of methanol production during fermentation is from pectin degradation. Grain contains considerably less pectin than fruit, so grain fermentation produces less methanol than fruit.
Unless they try to make booze from woodchips, they'll be fine. Using fruit or grains or potatoes makes it really hard to end up with enough methanol to be dangerous.
This is what actually happened. Methanol was put into industrial ethanol to prevent people making drinkable booze out of it. It was required. It was the prohibition era version of spraying Agent Orange on a cannabis crop.
They're a significant fire hazard which is why ATF regulations for stills require them to be located at least 100 feet from a residence.
I live in a city with 2 distilleries. You can smell when they're dealing with the mash because everyone in town can smell it. Also, we all get some black mold (not the really bad one) all over our siding which I think is some byproduct of the fermentation step.
My father worked in the oil business. As a chemical engineer, he was brewing his own moonshine (Poitín [pronounced 'poh-cheen'] in Ireland, Sidiki [means 'friend'] in Arabic language countries) since he was in university. In Saudi Arabia, there were frequent home fires in the western-expatriate communities. Newspapers reported them as "unattended cooking pot" fires. It happened several times per year in the Ras Tanura community they last lived in.
Thanks for sharing your comment. I was skeptical about your claim that black mold would be a consequence of living near a distillery, but in fact, it is. It is called Whiskey Fungus and is related to the aging of the spirits.
Yep, that's it. They all look the same with a human eyeball. Or I need better eye glasses.
> The fungus can be removed from buildings using high pressure water jets, bleach, etc. According to a report from the Kentucky government, it has not been shown to cause anything other than cosmetic effects thanks to its mode of nutrition via the carboniferous atmosphere, rather than the decay of building materials in general.
It reaches higher up the siding than I can reach with household cleaners. It makes the house look dirty. Which I really don't care about, since most folks in the neighborhood have the same schmutz on their homes. It doesn't seem to like cement, so sidewalks & foundations aren't affected (that I can see).
I would say: not explosive. I've seen a decent number of setups, and I can think of three areas where you could be concerned with safety (not necessarily where you should be):
1. Most use propane burners (the exact thing you'd use for homebrewing which is already legal and safe, and also similar to what some large turkey fryers use) which can be risky, but some are electric (120v or 240v).
2. Stills are an open system insofar as there is a way for pressure to escape - if you're goofing things up, you might vaporize and not recondense your ethanol (eg, because you have the heat way too high and/or aren't doing a good job of cooling down the vapors), and it's possible for that vapor to start on fire. I've seen it happen, and it's certainly a spectacle but wasn't particularly dangerous.
3. The distillate itself (ie, ethanol) is usually pretty potent, especially the foreshots and heads. Let's say 70%+. Especially as it's coming out, it's still prone to evaporation, and you could have a combustible/explosive risk here, but I've never seen this to be an actual problem.
Not explosive, but still a potential fire hazard, especially if a still gets way too hot (coolant system fails) and alcohol vapors escape. The risk becomes extremely minimal when using an electric still.
With an electric boiler, risk of fire is essentially zero. But if it did boil over due to cooling system failure, something else in the room (a spark from a relay, etc) might cause an explosion. This is why runs always need to be human attended and monitored, unless it is truly a bulletproof well tested setup that is designed for automated operation.
The ultimate alcohol boiler for small runs is an electric water heater. They have an inert glass coating on the inside, and as long as all plastic is removed and fittings are replaced with lead-free copper then it's safe.
You can match the heating element to the still head and always be assured of running it at exactly its maximum speed. Both heating elements can be used to speed up initial heating of the contents before dropping down to one element for the run.
Get a short, stubby water heater for best results. Then you can set your receiving pot and other stuff on top, like it's a table. Most painless and trouble free distilling experience ever.
Nixon and McCaw wrote a great book on distilling and they also sell a fine copper wool packed column that, at full length with extension, will support 1500W continuous boiler power. The stainless pot they sell as a boiler is good to get started with and works as a great receiving pot for the water heater boiler. If you upgrade the bottom water heater element to 6000W (normally 4500W in most heaters) and run it at 120V (half voltage), that drops it down to 1/4 power or 1500W, so a perfect match.
Truth! I converted my still to electric and would never go back to gas now that I know how easy the conversion is. Also uses air cooling so that almost no water is wasted.
they're really not. they're generally not a pressure vessel, and even when I've had leaks of ethanol, the fire went out immediately after being removed from heat.
today's home stills are usually plug-in resistance heated chambers with a still head, and are very high quality. my flame-out was from a pot still that was sealed with flour and water, not a modern still.
Do this one next:
https://en.wikipedia.org/wiki/Gonzales_v._Raich
The Supreme Court somehow held that the feds can regulate what you do in your own home (in this case, growing marijuana for personal use) because it could have a butterfly effect on the interstate price. (Constitutionally, the feds can only regulate _interstate_ commerce.)
I think much more likely is that it will just be made legal federally sometime in the next decade. Marijuana legalization has majorities across ideologies (https://news.gallup.com/poll/514007/grassroots-support-legal...) and even though the inability to create federal law on something so popular seems like a good case study on how the US system doesn't always do a good job representing it's actual people, it seems to be at a critical mass where it can't be ignored for much longer. Even my parents' friends who are conservative have started doing weed.
I think the issue is this isn't seen by politicians as a motivating vote driver. It is, however, a motivation for someone to go out and vote against a politician.
That's ultimately what keeps things like MJ illegal. There are just far too many people that will get upset about it if it were made federally legal.
My state, Idaho, has one such politician that is constantly bringing up and trying to find ways to keep the wacky tabacy out of the state. Including trying to amend the state constitution for it. He does this because he's mormon and the mormons are scared of the devil's lettuce.
This gets at something I think a lot of people don't really understand. They see polls that show strong support for policy X, and then complain that politicians don't enact it. What they fail to consider is that while a strong majority may be in favor of the policy, it's not the top (or top 3) priority, and they will support candidates that have the opposite position on X, if they support their top priority.
This is situation where well thought out (and moderately constrained) referendum process can help achieve the majority desire for a policy that would not otherwise be considered important enough to drive the selection of representatives.
Yeah, that's essentially what happened here in Oregon.
And the 2nd chapter of it is after the ballot measure passed, the state liquor commission drug its heels for a couple years, because most of their executives are far more conservative than the median voter here (a side effect of a lot of them being Salem locals vs Portland, but anyhow).
Eventually the state legislature got fed up with the obstructionism and passed a "ok, we're just doing it how CO did, stop stalling" bill.
And here we are. The sky didn't fall.
There's a lotta ways ballot measures can go into stupidity, but this is an instance where it helped force the bureaucracy to align with the majority voter position.
>(a side effect of a lot of them being Salem locals vs Portland, but anyhow).
Because their industry is in bed with government so their priority #1 is coordinating with the people of that industry. The actual "value producing" activity of buying, distributing, selling liquor and managing those relationships is a sideshow.
You see this in every deeply regulated industry.
> They see polls that show strong support for policy X
i would imagine those polls are full of selection bias - even if the poller is trying to be as neutral as possible. People who would agree to participate in polls tend to have strong(er) feelings than those who don't.
> referendum process
instead of referendums, there should be a representative vote by the elected politician, but with an option for the voter to submit their own vote (provided they pass a cursory examination that certifies they have read and understood the bill they're voting for).
E.g., a senator or an elected politician has N number of votes for a bill, where N is the number of people he/she represents. If those people don't want to participate in a bill voting process, the politician will vote on behalf of them (like they do now, supposedly).
However, an individual voter who wishes to, can certify their understanding of said bill, and rescind the representative vote for his electorate and vote himself directly on the bill. The politician will now have N-1 votes on that same bill.
This means for issues of importance, the individual can choose to participate. For issues that they don't care about, but have a vague sense of direction, they have their votes delegated to the politician that they elected once every X years.
Also it doesn’t matter if there’s majority support for a lot of things because most people don’t vote. If you want to get a policy enacted make sure you and your friends vote in elections regularly.
You should argue with him he's acting like Satan. The mormons (I used to be one) say that Satan wanted to force everyone to be good, Jesus wanted each person to have free will and choose.
that's actually a pretty cool take!
here's mine if you have a use for it. https://archiveofourown.org/works/65636176?view_full_work=tr...
I personally would be okay with having it legal if smoking could still be banned in multifamily complexes. I don't care if my neighbors are using edibles, but since I know that legalized weed means more smoke coming from my neighbors' balconies, I will always vote "No" when marijuana legalization is on the ballot in my location.
Can smoking tobacco be banned in multifamily complexes currently? I'd think the policy would be the same.
Every apartment that I've lived in in the US has as part of the lease that you can't smoke (tobacco or anything else) in it. Same for hotel rooms.
HOAs tend to manage this kind of thing
Lol, yes, subsidiarity.
HOAs, the lowest level of US government.
Voting to put people in prison because of smells is certainly a take.
It's not about the smell. Secondhand marijuana smoke carries many of the same harmful compounds as cigarette smoke [1]. The issue is involuntary exposure in shared living spaces. And ballot measures are typically all-or-nothing: you can't vote yes on edibles but no on smoking in your apartment complex.
[1] https://www.cdc.gov/cannabis/health-effects/secondhand-smoke...
Give me a break.
Not all bans are criminal, and tobacco smoke has problems beyond odor.
I get that fucking smell everywhere now even while it's still illegal.
Smoking (even of tobacco) can generally be banned in the CC&Rs of properties (multifamily complexes is the case where this makes the most sense) and by the landlord in any rented property, multifamily or subject to CC&Rs or not.
Until we start throwing cigar, pipe, and cigarette smokers in prison for smoking where I can smell it, I'm totally okay smelling some pot. The playing field needs to be leveled.
Government tobacco smoking bans in indoor spaces accessible to the public (or outdoor spaces near the entrances to such spaces) are not uncommon in the US, nor are private contractual (via leases for rental properties and sometimes CC&Rs that bind property owners) bans for non-public spaces.
I don’t want my toddler exposed to secondhand pot smoke. Unfortunately it’s more common than secondhand cigarette smoke in my experience. I wouldn’t get upset on my own behalf but he’s too young to choose and it’s my responsibility to act in his behalf as much as I can.
Yep it's more distinctive, more intrusive, spreads further, smells worse.
But is it more unhealthy? The rest are simply adult "preferences".
Mormons voted strongly to legalize MJ in Utah. Maybe your politician is just an odd man out?
edit: Well, I should note the Utah vote was only for "medical" MJ.
It got through via a ballot initiative. It wouldn't have been passed by the legislators in UT without that.
That's why the guy in my state, C. Scott Grow, has also been fighting to make ballot initiatives harder. He's terrified that an MJ initiative would make it's way in that way.
Republicans in Utah are also trying to remove the power from ballot initiatives because they're upset the Utahans passed an anti-gerrymandering initiative.
Yaeh this is a thing states do. South Dakota went in cahoots with the courts to cancel the ballot initiative to legalize weed, and California went in cahoots with the courts to sabotage prop 8 (the banning of gay marriage).
California Proposition 8 (gay marriage ban) was unconstitutional though, it was always likely to be struck down by the SC.
That's not why it was "struck down" by SCOTUS. It was struck down because California intentionally did not defend the case in SCOTUS, leaving the proponents (i.e., those representing the majority vote) to defend it in SCOTUS. Then SCOTUS determined the prop 8 voters didn't have standing to defend prop 8, essentially defaulting the decision through a perverse chickenshit technicality and remanding it back to the lower courts.
SCOTUS did not find gay marriage bans unconstitutional in that case. Only the 9th circuit did, and California intentionally stopped defending it at the 9th circuit because the 9th circuit is and was pro gay marriage.
> isn't seen by politicians as a motivating vote driver ... It got through via a ballot initiative
Those two seem a little at odds. People are going to vote against it, but not when it's specifically on the ballot?
It's not.
If 90% of party A supporters support the issue, and 70% of party B supporters support and issue and the election is close to 50/50 with B in power. B putting forward the issue can make them lose the next election because that 30% will either withhold their vote or vote for the other party.
But if that same issue is a ballot measure, then the 90% of A voters and 70% of B voters will overwhelmingly pass it.
This is what I mean by a motivating issue. Nobody will withhold their vote if MJ stays illegal. But there are certainly people (mostly religious) that absolutely will withhold their vote if a politician makes it legal. Even if that's a super popular move.
That's why pretty popular things aren't done. It's also why unpopular things can be easily done. If nobody withholds their vote because of the "send the kids to the mines" act (because they are happy about the mandatory Bible study), then a politician can get away with really horrible things so long as they make the core of their voters happy. After all, you aren't going to let the other guy win now are you.
It's what's broken about parties and FPTP elections.
> C. Scott Grow
Reverse nominal determinism
Grow, Scott, grow!
Or because mormons are fucking batshit crazy. Are they gonna ban coffee in the state next? Idiots.
I don't even smoke - it just offends me deeply to see the Supreme Court rule in a direction that's so blatantly against the Constitution.
That's been going on for a long, long time.
It's been popular (with over 50% popular support) for the last decade though. The major opponents are the alcohol industry, big pharma and the prison industrial complex. Their lobbying efforts are too powerful. We (the people) don't stand a chance.
You’re probably right, though I dread the possibility. I cannot stand the smell, and one of the best things about moving from California to Texas was avoiding that pervasive smell being everywhere. Negative externalities of personal behavior really need to be handled better in our society. If you want pot to be legal, fine, but only inside your own personal enclosed house.
That's only one of many ways to consume it, many people vape, have edibles or drinks and you just don't notice.
Even as a daily weed smoker myself though, it's hard not to acknowledge that a more liberal marijuana stance in a geographic location does lead to that smell being more commonly encountered when in public and out and about.
Personally I don't mind, almost the opposite, but for people who don't like the smell, obviously they feel differently. Good thing we can have different policies in different places, and people can generally, one way or another, move themselves to other places. Could be easier, but could also be way worse.
I live in Canada, I smell it maybe a dozen times a year? Certainly less than I smell tobacco smoke (that smell is nasty).
Could depend on where I live and hangout though.
See also, cigarettes, cigars, and pipe smoking. I find those smells about 10x as offensive as smoked weed. I don't see the HN crowd coming out against tobacco despite these two being roughly equivalent in use. And that 20 ft from the door thing is a joke when it's on the sidewalk you have to walk through to reach the bus stop or your car. At least the pot smell doesn't stick to my clothes until they're washed like the tobacco smell.
I dunno, I think it should be legalized and operation of a car or other heavy machinery while intoxicated should result in a swift and brutal public execution. Win/win. :D
But maybe I'm just a little jaded after having lived in a legalized area and almost being run down by hotboxed cars more than once.
Functionally in many places where the usage is unlawful, harmless use in people's private homes has very low risk of prosecution while dangerous or disruptive public use is still curtailed. I find it easy to sympathize with people who consider that a better tradeoff.
I strongly agree with de-federalizing any such decisions though-- your comment on freedom to move is a great one. I recently relocated to a place where it wasn't legal from one where it was, any when evaluating differential freedoms in making that decision the subject came up and I decided I probably actually preferred the restriction due to the collateral harms (although I strongly chaff at any restrictions on private activities or maintenance of your own body). I wouldn't say it was a major factor in the decision to move (other policy/economic/environmental/security matters were drivers) but for me it wasn't a reason to not make that move.
Some people say the same about the smell or noise of babies. It's not a very strong argument for getting ones way in controlling others.
If you truly think that "having babies" and "smoking weed" can be compared in any meaningful sense like this, I'm not sure what to tell you.
Are you ok with ciggarete smoke then if you are ok with marijuana smoke?
babies -> needed for civilization to continue
weed -> possibly negative effect on civilization ( https://pmc.ncbi.nlm.nih.gov/articles/PMC2424288/) , certainly not a requirement.
THC is perfectly legal here (Quebec, Canada) and believe me, there is no smell on the streets!
What is actually disgusting and happens often in the streets is the smell of ordinary cigarette smoke.
It's not legal where I am at all and I get hotboxed on my morning drive to work every day...
The fact that so many people think it's fine to get high and drive is baffling to me.
It’s ok if you do it where you arrive at taps forehead
It's legal in many states here. In SF it's absolutely everywhere and disgusting. Austin smells like tobacco and it's much better to my nose.
Your nose is literally a special flower. What smells good to it may not to another and vice versa. I far prefer the smell of pot smoke on the sidewalk to the smell of tobacco smoke. You youngsters missed the years of indoor workplace smoking and smoke breaks with 20 smokers surrounding the office entry door. It's just another smell to you. But for those of us who lived through the bad days of smoking, it's a toxic soup, a smoke inferno hell pit we're not thrilled about revisiting right outside of our favorite restaurant. A little bit of grass burning, no big deal. A cigarette and my meal's ruined.
This might be controversial, but smelling either in public makes me happy! Now the stale smell of tobacco-infused clothing, that is awful.
> but only inside your own personal enclosed house.
Isn't it usually illegal to smoke things like cigarettes inside rented homes, legality aside? And don't most people rent? That seems like a whole can to deal with.
Oh no, the thought of catching a whiff! No one must smoke in texas, since you know, everyone follows the law. Smoking weed only started in general with legalization. It was mythical beforehand.
I mean, there are plenty of neighborhoods in CA that don't have that smell...
There just no smell like this in any neighborhood outside of college campuses and area close to those.
You might get a whiff here and there, but you're going to encounter a lot of smells you don't like here and there.
The controlling case is Wickard v Filburn (1942).
A farmer was told he could only grow X acres of feed on his own land; feed that he had no intention of selling and was being fed entirely to his own livestock on the same land.
This seems to overturn that in part, but until Wickard is overturned, and the interstate commerce clause reigned in, there will be weird side effects of it like this.
Circuit courts may not overrule Supreme Court precedent. Accordingly, this decision purports to rest on the “Necessary and Proper” clause, avoiding Wickard (decided on commerce clause grounds)
In particular, Necessary and Proper as it relates to the taxing power, which the challenged statute relied upon, having been passed decades before the scope of Commerce Clause powers began their expansion, let alone Wickard v. Filburn.
How does the supreme court revisit precedents if the circuit court doesn't readdress the issue?
The party that wants the precedent reversed loses in the lower court (because the lower court is bound by current Supreme Court precedent) and appeals to the Supreme Court. The canonical historical example is Brown v. Board of Education, which was appealed to the Supreme Court explicitly to ask them to reverse Plessy v. Ferguson, which lower courts had relied on as precedent.
Somebody has to bring a new case that presents a novel legal theory/presentation that isn't clearly addressed by the ruling that forms the precedent.
Additionally, one can argue that the state of the world has changed enough that assumptions made by the USC at the time of precedence require reversal.
only in a new case ....
The court is stacked with so called originalists - history stopped in the eighteenth century.
idk, they wouldn't have given the president nearly absolute immunity back then..
Yes, they are insincere "originalists". This is known.
> Circuit courts may not overrule Supreme Court precedent.
That's a Supreme Court opinion that only applies if the new case reaches their docket and gets reaffirmed.
There's a lot of context (behind Wickard v Filburn) which would obviously not apply to anyone distilling for personal consumption:
https://en.wikipedia.org/wiki/Wickard_v._Filburn
I'd imagine one wants to litigate Wickard v. Filburn in its entirety, rather than just the downstream Gonzales v. Raich
You have identified a root perversion. Roscoe Filburn’s wheat did not leave Ohio or even his farm. He didn’t offer it for sale; the wheat was for his own use. It was deemed to “affect interstate commerce” and thus within the scope of the interstate commerce clause. With that, a provision intended to remove power of states to tax each other’s goods and services and promote a free trade zone instead became a mechanism to nitpick and micromanage every last little detail, ossify existing practice, protect large players, give loopholes to the politically connected, and enable mass regulatory capture. It cannot be overturned quickly enough.
https://supreme.justia.com/cases/federal/us/317/111/
I don't see SCOTUS ever overturning Wickard, sadly. Too many federal programs and regulations would lose their legal basis if that happened.
You’re almost certainly correct. Kagan, Sotomayor, and Jackson would argue this consequentualist line. Thomas, Alito, and Gorsuch could be persuaded by textualist or originalist arguments and are the most likely overturn votes. Kavanaugh was a key man on standing up and defending the so-called PATRIOT Act during the George W. Bush administration, so no way he knocks out this pillar.
ACB talked a strong originalist game during her confirmation but since shown it’s not her core philosophy. Although Roberts appears inclined to rein in the administrative state, he’s aligned chaotic neutral and thinks himself too clever.
Already down 4-3 and having to persuade both Barrett and Roberts to join a ruling overturning parts of Wickard, another Dobbs seems wildly unlikely even though both precedents were poorly reasoned. At best, they agree to some marginal or technical reduction in scope. It seems equally likely that she sides with the four, in which case, what does Roberts do? He may need to make it 6-3 to control who writes the opinion. Such strong numbers would be unfavorable enough on the surface that he might persuade her back to an even more tepid limitation. The concurring opinions that it would induce from Thomas, Alito, and Gorsuch would be entertaining reading, at least.
There's no way Roberts would vote to overturn this given his history of pretending a penalty directly remitted to the IRS for not carrying health insurance was not a tax for the whole ACA fiasco.
But Filburn must needs be overturned. The sovereignty of states depends on it.
Please suggest one, but ideally three, things that you think that overturning Wickard would lead to that would cause K, S & J to vote against doing so?
The federal civil rights act of 1964 is probably a good one. The clean air act is another. Probably others like consumer protection laws, healthcare regulations, safety laws (OSHA), etc. These are all based on the expanded powers from wickard v fillburn. If portions of these were challenged and overturned, I believe those justices would not view that as a good thing.
Isn't OSHA already unconstitutional under current implementation due to competing intelligible principles?
I agree they won't do it, but they absolutely should.
In Gonzales, O'Connor dissented and Scalia, who was too afraid of pulling the rug out from under the administrative state, issued a concurrence. So, surprises do happen.
Drugs were always a weird exception to what was otherwise pretty consistent jurisprudence on Scalia's part.
I was prepared to excuse his vote as an exceptional situation until Sebelius, when rather than revisit and fix his mistake in Gonzales he chose to embrace the affirmative mandate vs passive prohibition distinction nonsense, a deux ex machina fit for one purpose and one purpose only. Fool me once....
There's a good argument to be made that it was just good luck for Scalia's intellectual legacy that he died before the conservative supermajority on the court got rolling, because he was already well on his way to replacing principles with expediency: https://www.scotusblog.com/2026/03/justice-scalias-uncertain... Like the old saying goes, it's easy to criticize, much more difficult to offer constructive, durable solutions.
I call BS. Wickard is about, effectively, "police power" based on a broad interpretation of the scope of federal/interstate commerce.
As noted by other commenters, the concept of federal control of interstate commerce was intended to prevent states from interfering with trade between themselves and other states, and to create some "higher" authority for aspects of commerce that truly transcended state borders and control.
Most of what has happened in terms of programs and regulations fits very comfortably into that understanding. What doesn't, which I don't think is a lot, should probably go away anyway.
If you can use the commerce clause to prevent a guy growing wheat on his own property and feeding that crop in its entirety to his animals, there literally isn't an activity the federal government can't regulate.
Correct. I'm suprised sexual orientation hasn't been regulated by the same stupid logic. Clearly if you're not making babies you're effecting all kinds of interstate commerce.
That would also invalidate the civil rights act, as the (similar) 19th century CRA was already struck down because the 14th amendment binds against discrimination by public not private actors. The reason why the modern CRAs weren't also struck is because they rested on the laurels of Wickard v Filburn declaring the CRA (this time) is about regulating "interstate" commerce.
fixing the interstate commerce clause is one of those things that needs to be done eventually, but will likely never be done - even if just to "fix" it so everything remains the same but is based on simpler allocation of powers than through a "loophole".
John Roberts will find a way to screw it up.
That would be an improvement in the same spirit, as the modern CRAs are also unconstitutionally limiting over what one chooses to do with their own property. The scope should be limited to government-involved services and facilities, as those must serve all possible taxpayers. We live in a more connected, option-saturated information age where even bigots more often than not understand the utility of at least doing business politely and making nuanced exceptions. Egregious offenses are corrected by social pressure and business competition. The current regime of ambulance-chasing liabilities inserted into every organizational, contracting, and hiring process harms far more people of every race and sex than it helps.
>Egregious offenses are corrected by social pressure and business competition.
This doesn't work when bigots are willing to pay a premium for discriminatory services.
Also, do you feel the same way about the FHA and Title VII? Those also involve regulating what you can choose to do with your private property, but I don't want to assume that you don't consider housing and employment to be distinct from, say, hotels and grocery stores.
I think it should be repealed. It's legally baseless. How hard would it possibly be to get anti discriminatory Ammendments into the constitution? Surely at least 2/3 of reps are not that unfit.
Gonzales v. Raich (2005) is a pretty straightforward application of the precedent of Wickard v. Filburn, 317 U.S. 111 (1942) [0] rather than a novel, out-of-the-blue new interpretation of the Constitution.
[0] https://en.wikipedia.org/wiki/Wickard_v._Filburn
In Wickard v. Filburn, back in 1942, they said the same thing for wheat.
You say that like interstate commerce regulation was more egregious for wheat than it was for marijuana.
But Raich is significantly more egregious: the theory on which the government won Wickard v. Filburn, that private consumption of wheat could affect the interstate market for wheat, doesn't even apply, because there can be no interstate market in a substance that is illegal to trade.
>there can be no interstate market in a substance that is illegal to trade.
There is in fact an interstate market in many substances that are illegal to trade because laws against things do not make those things fail to exist.
No market that the federal government can recognize, tax or regulate
By making it illegal, it has already been regulated. The IRS also requires reporting and taxing all income, even that which was unlawfully gained.
Illegal commerce is still subject to taxation and regulation, famously so in the case of Al Capone.
Legally subject to. Practically, untaxed.
The reason marijuana is Federally illegal in the first place is because the commerce clause is interpreted to allow it.
Our companion case in the Sixth Circuit tees up the issue:
https://www.buckeyeinstitute.org/issues/detail/ream-v-us-dep...
See the opening brief.
Thank you for your work here. Overcoming the argument that a threat of prosecution doesn't create standing is a huge advancement for the cause of freedom-- in light of Babbitt the state never should have been arguing otherwise nor should the lower court have ruled that way but they were and that line of argument is protecting a lot of facially unconstitutional law.
I suspect that if that ruling was made, then many other drugs being made at home for personal use might become legalized, at least unless states decide to go and ban it too. Note that I am not taking a position here on if that's desirable.
That's arguing around the point.
If the law is broken, fix the law. Don't pervert logic to pretend that the existing law dictates what you want is correct.
If Roe v Wade is based on faulty logic, cool - overturn it. But it then becomes Congress's responsibility to replace it with the correct version.
The federal government isn't supposed to police people's personal behavior. "Federal" comes from "federation" as in, the group of states in the union. It's the job of the legislature to write the laws, the job of the judiciary to interpret the laws, and the job of the states to do these things for areas that don't rise to the level enumerated in the Constitution.
When you get it twisted, you end up with this tug-of-war where corrupt politicians try to put biased judges on the bench to mold the rules to their whims without actually having to pass them.
> If the law is broken, fix the law
If you follow that argument to its conclusion, you end up at: fixing the law requires amending the Constitution, and if the law for amending the constitution is broken, the remedy is revolution. Most participants prefer the current practice instead.
Maybe we could get enough support behind an amendment to amend the amendment process.
If anyone considers that outcome to be strange - that's how most things are supposed to be regulated. It's doubly specified in the wording of the constitution and 10A.
If one takes the opinion interstate commerce means buying, selling and transporting.
It's also how the current system works. Most drug convictions are based on state law. Federal drug prosecutions are 2% of the total. Every state has its version of controlled substances act.
Nothing much would change at all.
Yes, regardless of that specific case I'm hoping to see a series of Supreme Court decisions that will eviscerate federal government power over internal state affairs and restore the original intent of the 10th Amendment. Long live federalism.
It will be an interesting next decade or two on this topic. The federal government increased its power in part to coerce States to end Jim Crow, to broaden personal liberty (like with Roe v. Wade), establish a social safety net, and set minimum environmental protection standards. If we keep seeing federal power being used to compel a reduction in liberalism among the States, the sides supporting "state rights" seem likely to switch.
Adding to that, if the supreme court continues to make realistic federal administration harder by tearing down executive rule making authority and requiring more explicit Congressional rule making (which can't scale in our current system), we'll continue to see less stable and predictable federal regulatory actions - which might further compel the states to step in...
But where will States raise the taxes to make this happen? While the federal government seems willing to do less (in terms of classic liberalism policies), it certainly isn't reducing its spending.
And how will States defend themselves from federal intrusion if they do start to claim more of their power - will we see armed stand-offs between national and state forces?
We’ve already seen states try and regulate outside their borders; TX with abortion as one example. How does a weaker federal government protect against this, or do you believe it should not? And how does this not devolve into 50 fiefdoms?
Another case based on interstate commerce: the US ban on racial segregation. The example given, iirc, was restaurant competition across state lines.
The interstate commerce clause is just craziness. It touches everything and gives justification to regulate nearly anything.
A lot of stuff does have interstate implications. Especially now that most corporations operate in an interstate fashion.
That said, I agree that it's overused. I personally think that the 9th amendment should be used in a lot of cases, like civil rights, instead of the interstate commerce law.
The supreme court, however, has basically decided that the 9th amendment doesn't really exist.
You could just as easily stuff most of those things under the "general welfare" clause if you do the same rigamarole of years and years of precedent hand-waving. We live in a post constitutional state. The constitution is just something worked to backwards so the guys who function as our priests/gods point to the document because that's the only way to feign some sort of legitimacy to our government.
Ultimately none of us signed the constitution and all of those people that did are dead. It is a religious artifact used by the whig -god people to argue they are right. Not something followed with faith to the historical context nor literal contract.
(edit: to below trying to compare bad-faith ICC to good-faith general welfare, you must apply similar levels of creativity and bad faith. Ban things through high or impossible to pay taxation. "Tax" behavior to force people to do something in a certain way, make very heavy penalties for not paying the tax, and also make it extremely difficult to buy the tax stamps (this is how they did drug control until they decided to use the new fraud of "interstate" commerce).
General Welfare Clause only applies to taxing and spending, though, not just general regulation (e.g., making drugs illegal or banning segregation).
For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars … But what would have been thought of that assembly, if, attaching themselves to these general expressions, and disregarding the specifications which ascertain and limit their import, they had exercised an unlimited power of providing for the common defense and general welfare? I appeal to the objectors themselves, whether they would in that case have employed the same reasoning in justification of Congress as they now make use of against the convention. How difficult it is for error to escape its own condemnation!
Federalist No. 41 https://avalon.law.yale.edu/18th_century/fed41.asp
I agree, from the other side of the aisle. The Constitution is merely a well-guarded piece of toilet paper now. Culture matters way more than legal documents in preserving a nation, and our culture has waned too significantly. I believe we've entered the "Byzantine" phase of America.
> Another case based on interstate commerce: the US ban on racial segregation.
Specifically the federal ban on private segregation. The states would still be able to ban it.
Moreover, is that the sort of thing you even want as an ordinary statute dangling precariously off of the commerce clause instead of making it a constitutional amendment to begin with?
I wouldn't be surprised if this one unironically goes given that Uber/Lyft are fully doing "women only" ride shares now.
Gen Z / Alpha have embraced X-"realism" and fully accept essentialism/reject "intersectionality". They're far more conservative/prudish than millennials, even at their young age.
> Gen Z / Alpha have embraced X-"realism" and fully accept essentialism/reject "intersectionality". They're far more conservative/prudish than millennials, even at their young age.
This does not meet up with my experience with them at all.
Just quick check, what percentage of onlyfans creators are Gen Z / Alpha vs other nonsense year demographics?
I think there's a selection effect there that makes it an unrepresentative sample.
First, Gen Alpha is in their teens, so it's kind of hard to say what is happening there or will happen.
Second, there is a growing divide between gen Z males that are skewing conservative in some ways. Their church/religious attendance is up, but overall attendance is still down.
Gen Z females that are the most liberal demographic in history.
The split is both political/social.
(US analysis)
>Their church/religious attendance is up
This was debunked, at least in the UK. Not sure about the US but I'll bet it's the same sham (church sponsored) statistics.
I think more of each generation is coming to realise that religion is an outmoded parasite.
The church certainly is, but religion isn't and will never be.
At this point I don't see any difference between the two. Modern religions are shaped (warped, really) by the larger organizations that control them.
Sure, the concept of "spiritual/non-scientific belief" isn't a parasite in and of itself, but even if the existing organized religions ceased to hold their sway, and people treated religion as a personal thing without centralized authorities, I still don't see an end to (for example) people trying to get their religious beliefs enshrined in law. That's parasite behavior.
If they reversed Gonzales v. Raich they'd be under a lot of pressure to reverse Wickard v. Fulburn, which would have such wide ramifications I just don't see the court doing it no matter how warranted.
That's really strange.. I grow tomatoes at home. Surely that would apply too?
Yes, it would. But there isn't currently a law limiting the amount of tomatoes one can grow especially for personal consumption. In 1938, the Agricultural Adjustment Act was passed. This law tried to control the prices of food by determining quotas for production. Filburn was allowed to grow ~11 acres of wheat. He went and grew 23 acres of wheat, setting aside the overproduction for personal consumption while taking that ~11 acres to market.
Many American treaties (with other nations) prohibit both/either parties from decriminalizing marijuana among other drugs.
Links:
discusses some of the treaties:
https://www2.nycbar.org/pdf/InternationalDrugControlTreaties...
History of illegalization of pot:
https://www.congress.gov/crs-product/R44782
These treaties are ancient and mostly irrelevant, especially outside the topic of hard drugs. Unless you're doing harm to the other nations, no one will do anything.
This paper is all the way from 2012. Since its publication, many countries have pushed the limits to far greater lengths than what it talks about. Canada remains a signatory to all the old 60s-80s treaties about drugs, but can you guess what the consequences were when we legalized cannabis in spite of all of them? No one cares about these.
It's not about decriminalizing marijuana - it's about the absurd assertion that the federal government can regulate what you do personally because "yadda yadda yadda…interstate commerce!"
Treaties can't legally do an end-run around the limits prescribed to the government in the Constitution.
The problem is if you say the government can’t regulate MJ, then all drug regulations fall apart.
On one hand you should have a right to buy whatever you want at 21( which should be the minimum enlistment age), but I’d be concerned about Billy selling homemade GPLs or whatever.
> The problem is if you say the government can’t regulate MJ, then all drug regulations fall apart.
No, that's not what's being said. If you grow your own plant for personal use, there's no need for the federal government to be involved. If you grow that plant and then try to sell it, then there's some commerce which does fall under some regulation (we'll leave the interstate nuances aside). Having the fed being allowed to say you cannot grow in your house is one step away from saying you are only allowed to perform missionary position (no other positions are allowed) between the hours of 7-8pm, but not at all on Sunday.
Okay. So if you decide to visit a friends house does him sharing still count as personal use ?
In many communities you have a guy who cooks plates of food and sells them. While technically this is illegal with out a permit, it’s usually tolerated.
I’m all for the legalization of everything for adults, but it’s a very complex issue. Education is the way here, not punishment
No one argues these things are not able to be regulated. Instead, per the 10th amendment, it must be left to state law since Congress does not have unlimited power and may only legislate where power has been granted to them by the constitution.
And before people say you are being hyperbolic, the government still regulates sex positions. Sodomy is illegal in 12 US states.
Not the federal government, however.
There are specific prohibitions on certain categories of state laws, like granting titles of nobility, creating non-gold/silver currencies, etc. The federal government cannot constitutionally regulate sex positions, because anything not explicitly covered in the Constitution is reserved to the states, or the people. In that broad grant, however, the states individually can make or avoid making law on any topic.
As others have mentioned, the Supreme Court has frequently worked around the Constitution for reasons that made sense to them at the time, including the original ruling that this one overturns.
>The federal government cannot constitutionally regulate sex positions, because anything not explicitly covered in the Constitution is reserved to the states, or the people.
That being said, there's probably not a constitutional way to enforce laws regulating sex positions. Even if you don't agree that such laws are clearly discriminatory in intent (let alone impact), the privacy violations necessary to prove guilt "Beyond a reasonable doubt" almost certainly violate the Fourth Amendment, and any theory of harm would implicitly (if not explicitly) rest on religion.
This is all assuming you don't accept Griswold as a reasonable constitutional argument that pretty obviously would extend to the kinds of sex people have.
> That being said, there's probably not a constitutional way to enforce laws regulating sex positions.
Right, but until someone gets arrested for this, nobody has standing to challenge the constitutionality of the law itself. It is one of those unenforceable laws. Even biblical law required witnesses (never just one) before being able to prove adultery.
See also Griswold v. Connecticut.
I believe the original idea of the Constitution was that most things would be regulated at the state level.
This is pretty much already the case with marijuana, where it's illegal at the federal level, but in practice if it's legal in your state then it's legal.
"Pretty much" is doing quite a bit of work there. The feds ignoring marijuana use in states that have legalized or decriminalized it is the DoJ actively deciding not to prosecute MJ cases. They could absolutely send the FBI or whatever into a state with legalized marijuana and raid dispensaries and arrest people if they wanted to.
I'm convinced they don't do exactly that because they know it would ultimately result in the Supreme Court overturning Filburn.
> I’d be concerned about Billy selling homemade GPLs or whatever.
Would it be better with a BSD license?
Been samplin’ a little bit of Grandpa’s attribution clause, have we?
I looked at the actual decision [1] and didn't see Filburn mentioned once. I find that odd. Filburn [2] was a controversial and far-reaching decision that said that the Federal government's ability to regulate interstate commerce extended to people growing wheat on their own property for their own use. The rationale was that by growing wheat you weren't participating in the interstate wheat market. That seems like a wild interpretation to me but it's Supreme Court precedent at this point.
So I found this footnote:
> The government does not challenge the district court’s Commerce Clause analysis on appeal. Accordingly, any such argument is forfeited, and we do not address it.
That's interesting. Here's a legal analysis that does bring up the Commerce Clause and Filburn [3]. I really wonder why the government didn't raise this issue.
I knew just from the headline this was going to be a 5th Circuit decision, and it was. This is the same circuit that is perfectly fine to override "state's rights" for other issues.
[1]:https://www.ca5.uscourts.gov/opinions/pub/24/24-10760-CV0.pd...
[2]: https://en.wikipedia.org/wiki/Wickard_v._Filburn
[3]: https://www.yalejreg.com/nc/reviving-the-commerce-clause-one...
It's possible that the government thought that if they did try to challenge the Commerce Clause analysis, then the Supreme Court could have struck down Filburn. They'd much rather lose narrowly on this specific case than have Filburn reversed entirely.
SCOTUS did a pretty hilarious soft "strike down" of Wickard where they basically determined the gun free school zone act (GFSZA) violated interstate commerce clause. So congress just added "in interstate commerce" to the GFSZA and now it does the exact same thing even if there was no interstate commerce involved, and nothing involved ever crossed state lines or actually entered interstate commerce.
So SCOTUS basically solved this by saying the law had to say "in interstate commerce" but it is basically just there as a talisman to ward away challenges, a distinction without any difference as it becomes a tautology.
I don't agree that requiring a talisman is irrelevant-- ineptly drafted laws will lack them and fail more easily. The legislative effort to add it may not happen later, especially once judicial review has spoken negatively of the underlying constitutionality of the law.
It also is not of no effect-- it's an element of defense and people have escaped GFSZ act because the government failed to satisfy interstate commerce (and internet search suggests the some courts have taken it to mean that the presence of the gun in the school zone itself must have impacted interstate commerce, rather than just the gun's past purchase did). Every element the prosecution must prove at any level increases the marginal cost of prosecution and makes it less likely to be imposed on more marginal cases.
That seems like a pretty over-reaching interpretation. It makes sense in the context (needing to support federal economic control during WW2). But in some sense the economy is a dynamic system that touches and is touched by almost every decision we make. I made a pot of coffee this morning, should the federal government have the ability to decide whether or not I’m damaging the cafe market by not supporting my local cafe?
The entire 10th amendment is basically being ignored because interstate commerce policies and rulings. For that matter, the 1st, 4th and 5th aren't being upheld either.
nah, 3d printed firearms next.
The word "interstate" does not exist in the text of the Constitution.
There's arguably some merit to your position, but the argument that some case law is invalid because it doesn't meet the definition of a term defined in other case law is circular and incoherent.
It uses the phrase “regulate commerce between the states” which effectively has the same meaning.
No. It absolutely does not use that language, and it baffles me as to what would cause you to say that it does.
Please endeavor to say only true things. The truth matters.
You're working awfully hard to be pedantic without comparing the actual language:
> to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes"
https://en.wikipedia.org/wiki/Commerce_Clause
Decisions like this illustrate what a hollow farce the modern federal courts’ approach is to Constitutional governance.
To be clear, courts are not supposed to change policy or make new policy, they are just supposed to interpret the law as written.
So supposedly this ruling is “not a change in the law” but rather a discovery that actually the law has always been this way but oops, someone read it wrong 158 years ago and literally everyone has read it wrong for the ensuing 158 years.
Until now, when an unusually wise and discerning small group of people finally read things the right way.
I strongly support the substance of this decision, the ban was stupid overreach. But I also recognize that decades of agreeing with the substance of similarly silly “discoveries” has created a situation where federal judges have essentially infinite leeway to inject their own opinions into the law under cover of “wow, I finally discovered the correct interpretation” (no matter how tortured).
The decision 158 years ago that an activity could be banned through taxation was obviously in error.
With my respect for you as a person, I think your idea here is demonstrating both ignorance and cynicism to the way the law works.
This type of interpretation of law is by design.
When lawmakers write a law, it’s specifically the judicial branch’s job to interpret it, which is exactly what is happening here.
It’s also exactly how you describe by design: legislators can pass laws that say whatever they want. They can pass a law that says that all left-handed people are subject to a 50% income tax even though such a thing would clearly violate the constitution. Legislatures can make illegal laws just by having the votes to do so. The role of the judicial branch is to interpret the constitutionality of laws that are made.
Critically, a lawsuit has to challenge a law’s legality and constitutionality in order for it to be interpreted as unconstitutional. There also has to be a harmed party that shows they have standing to make that lawsuit.
It’s entirely possible that nobody brought this specific argument to a judge in the last 158 years. It’s also entirely possible that what is acceptable by reasonable people in society has changed over time, which can alter the interpretation of laws. That is normal, expected, and by design.
I think comments like yours unnecessarily demonize “activist judges” when this is the designed function of their role.
“They can pass a law that says that all left-handed people are subject to a 50% income tax even though such a thing would clearly violate the constitution”
I think that would be constitutional, but in conflict with other laws.
It would violate equal protection.
Someone forgot to tell Brett Kavanaugh.
How so? Left handed people aren't human. Just like how criminals aren't treated like normal humans with equal rights.
Seriously though, I don't think it technically violates anything given that we do have a set of humans (criminals) that we treat unequally. Culturally we believe theft and murder gives us the right to treat such people who do such things unequally and we've encoded that into law. It is simply another culture shift to interpret left handedness as the same thing.
I mean the example is absurd but it's a valid example. Maybe a more realistic example is pronoun usage and the forced recognition of multiple genders other than two. Taken to the extreme we would have to accept that anyones made up gender is real and we will be forced to recognize their beliefs that these things exist.
In CA you can already get this classified as harassment and get fired from your workplace.
And just to be clear I agree with the whole made up gender and pronoun thing. If you want me to refer to you with they instead of she or he that's fine, but the point is that all of this is clearly culture/opinion based and none of it is a universal right because what is "universal" is ALSO an opinion.
The left handed tax law could be passed and declared unconstitutional almost instantly under a challenge brought by any individual that referenced the equal protection clause of the 14th amendment, to any federal court. if the government appealed it at all, the appeals court would agree with the lower court, if the government appealed it again, the Supreme Court would also agree with the appeals court and lower court, and it would be a phenomenal waste of time.
That's the only validity of the example.
Nothing occurring in the court system matches the angst of people that view recent appointments and decisions to be invalid. Anything overturned only affected the day to day life because there was never an actual federal law passed at all. The courts are operating much closer to how people imagine them, than in prior times, despite people believing the opposite is occurring. Media.
Didn't go that way for brown people with accents did it.
You're missing the philosophical principle that the more laws you have the wider the breadth of the domain that laws can interpret becomes, and that laws generally accrue. This is not by design, and there are jurisdictions which explicitly curtail this by having sunset laws.
The overwhelming use of civil instead of common law by the world would beg to differ that there is any consensus on this.
I agree with a lot of the advantages of common law that can sort of legislate through precedent. But it does make it basically impossible to be on notice of what is illegal and what isn't, particularly in the modern world where not only are there hundreds of thousands of law and thousands of pages of federal "regulations" bound as law but you also have to know all the precedent and asterisks to the interpretations to know what is actually illegal.
The power of the judiciary to "interpret" the constitution was a huge chink in the armor of the Constitutional order. A handful of unelected judges can effectively amend the constitution via simple majority, but can only be "overruled" by the people if there is extremely broad opposition (as a constitutional amendment requires 2/3 of both houses)--which is, of course, a total inversion of the democratic-republican principles which brought our country into being. The practical effect is that, while the people have some limited democratic control over the government, control of the state has been wrested away from them by the Judiciary. This was fine so long as the Judiciary saw themselves as honest arbiters of the constitutional order, but the moment the Judiciary began to see themselves as architects rather than mere arbiters, the constitutional order was at an end.
The check elected officials have on this is to pack the courts. This is what FDR threatened to do to get through (at the time unconstitutional, now magically "not") a bunch of popular legislation.
The size of the Supreme court is not defined in the Constitution. So, packing the court is not unconstitutional. It is dishonest and shady as hell. But, the only check on the power of each branch are the other two branches that don't desire to be sidelined by one branch growing more powerful. All three branches are supposed to be in contention for power within the bounds of their interpretation of the Constitution. It is the duty of the other two branches to deem an action of the third branch as unconstitutional.
But, the system has been broken over time. Congress abdicated the majority of their power to the executive and somehow judicial became the official arbiters of constitutionality.
Only if it could be done in an apolitical way, which seems impossible in the current political climate. The legitimacy of the US Federal Government depends on the perceived continuity of the (now mythical) constitutional order. If one party or the other packs the court without bipartisan support for their nominees in the Senate, it would be denounced by the other as an authoritarian end-run around the constitution--as a revolutionary rather than a mere procedural act. IMO this would be more likely to foment disunion than it would be to restore the bygone constitutional order.
The fabrication of legitimacy is indeed the main task of the supreme court.
However violence is another way to project legitimacy. Putting someone away for life or drone striking a goat farmer provides real legitimate proof of power.
The government is much stronger than it was 100 or 200 years ago. So perhaps it can dispense with appearances of judicial legitimacy using the currency of violence. It's not clear they need to continue with the fiction of an impartial court to hold their grasp; like a space ship they can jettison that hallowed out rocket having already safely been placed into orbit.
FDR is written about phenomenally in US history books for reasons that don't seem to match the reality of what happened. We can separate foreign policy wins from domestic policy losses, just like we do now.
The now-heralded New Deal was getting torn apart by the Supreme Court, program after program for half the decade. And the remaining parts of the New Deal still exist on shaky constitutional ground if you really look at how much of an abberation they are and how they survived. Spoiler alert, for things that remain its nearly impossible to get standing in Federal Courts to question them and the people that could get standing aren't interested and benefit from them.
FDR threatened to pack the courts, just like modern presidents and party constituents demand.
It was actually very partial that the FDR-era Supreme Court backed off from that threat. So to consider our current Supreme Court to be the aberration is inaccurate, it is even more autonomous.
Everything I look at gives me the opposite conclusion of the public discourse, except when I'm in very small legal circles.
Isolating yourself to small legal circles can unfortunately open yourself to the vulnerability of mistakenly appealing to the authority of legal training that has specifically been tailored for success in the system we're in, which may optimize for coming to conclusions that help you win cases rather than optimizing for some other analysis. Looking at the bigger picture is an entirely different skill set than having legal training to be a good lawyer, so I think it's folly to place in special stake in "small legal circles" for this and in the worst case, might usher you into an echo chamber built out of practical adaptation.
If I wanted a healthy view I might include those with legal backgrounds but they would only be a small selection of the landscape of ideas to draw from, I certainly wouldn't place special stock in the "legal" community.
I'll watch out for that. But ultimately I do want my view of the world to be the law of the land, which means "win cases", specifically reflecting my view and my currently obscure arguments. My observation is that populist arguments are the ones that fail because they don't understand the mechanisms and obscurity.
A now-less-obscure view is based on the observation that the New Deal used a completely novel and expansive view of the interstate commerce clause that completely subjugated the states and essentially created a parallel nation overlaying the collection of states - what was called the Federal government for practicing federalism was now only nominally federal, as Congress now only grants exceptions for state autonomy just to retain support on occasion. Despite how disruptive it would be to review this arrangement, this 100 year use of the interstate commerce clause is completely on shaky constitutional ground
The entire federal agency apparatus could be Thanos-snapped out of existence, just like the 1930s Supreme Court was doing
(I don't want that specific thing to happen, and I don't see the alternate federal authority for most of the agencies and their regulations if it were to happen, so that would be very disruptive)
I don't view the New Deal changes in constitutionality as prevailing through some from of reasoning of arguments per se, just projection of power. Projection of power is unlikely to be changed through lawfare. Usually it is not relinquished without violence. The violence that set the stage for consolidation of federal power, IMO, was in large part the civil war (removal of secession as a check on federal power, IMO the most powerful check states had) but of course also the concerns from the aftermath of WWI.
The fact the ICC was used is the least consequential part of the whole thing. That's just what was picked by the whig-gods to present legitimacy to the projection of power. Could have just as well been a proclamation from god under some other system. If the ICC expansion non-sense is struck out of some kind of convenience for some matter they are attending to, I don't think it changes much, just means the priest will utter some other magic phrase.
I don't think it does demonstrate that at all, it would demonstrate that if there was a prior court challenge were it was found to be constitutional. but there was not, this was the first court challenge, hundreds of millions of people, maybe over a billion over the last 150 years never thought to take it to federal court
one person finally did, and this decision matches what a lower court found in 2024, this is a pattern of consensus actually. the government (executive and legislative branch) is losing, while the judicial branch has complete consensus
this would actually be the worst example of anxiety about a fictionally different modern federal court, and seems more so to be an example of not knowing how they work at all
one suggestion that I've seen in other democracies is that a law passed by the legislature can be sent for constitutional review immediately by the President, instead of simple sign or veto. In the US system, all laws can be passed and it takes someone challenging it, and of the people that challenge the law they have to find a way to have "standing" - as in, prove how they were affected by the law - which is a huge risk if the law has a penalty you have to risk being affected by. That's how we have a massive nearly infinite set of laws that have never been challenged.
Missed in the previous discussion: methanol is irrelevant. Grain based ferments have essentially zero methanol.(And methanol risk is a function of its concentration relative to ethanol — the treatment for methanol poisoning is… ethanol!) even fruit based fermentations with significantly higher pectin concentrations only produce trace methanol, and it’s not all that well concentrated in a distillation due to azeotropes (which also says that throwing out the heads doesn’t help that much).
Methanol poisoning stories in the news almost exclusively result from people trying to sell denatured or industrial alcohol. The biggest risk in home distilling is fire.
> the treatment for methanol poisoning is… ethanol!
My grandpa drank a shot of schnapps every night and called it his medicine. I thought it was a euphemism but apparently he was actually taking an antidote prophylactically. You can't be too careful. He never once got methanol poisoning.
Was his doctor Dr. McGillicuddy?
> even fruit based fermentations with significantly higher pectin concentrations only produce trace methanol
From https://actamedicamarisiensis.ro/wp-content/uploads/2015/08/...
> Only 18% of the tested 56 samples met UE regulation regarding methanol content of alcoholic beverages (0.4% in alcoholic drinks containing 40% ethanol). The highest concentration of 2.39% was found in a plum brandy. Plum brandies contained significantly higher amounts of methanol than brandies made from other fruits (0.91 vs 0.52%, p = 0.01)
> Methanol poisoning stories in the news almost exclusively result from people trying to sell denatured or industrial alcohol
Pretty sure this was a relic of prohibition right? The feds would contaminate ethanol with methanol to keep people from drinking it, but then they hurt a bunch of people and never faced any consequences...
> Pretty sure this was a relic of prohibition right? The feds would contaminate ethanol with methanol to keep people from drinking it
We still do this now. We don't do it because alcohol is illegal, we do it because we levy higher taxes on non-poisonous alcohol, and if someone decides to drink the poisoned alcohol, they deserve what they get.
No going to the gas station and getting blitzed on ethanol fuel on a Saturday night.
More like solvents at the hardware store
During the covid period, the price of hand sanitizer, which is thickened alcohol, rose to exceed the price of drinkable alcohol.
Several beverage factories proposed to rework themselves to produce sanitizer instead, which would have been good for everyone.
But they couldn't, because federal law would have required them to poison the sanitizer, which would have contaminated their machinery so badly that they would have been unable to switch back to producing drinkable alcohol afterwards.
So - even if we ignore the idea that intentionally poisoning people is wrong - there was a serious cost to the legal regime, one that still exists.
Are there any benefits?
> But they couldn't...
This is false. Several breweries and distilleries started producing sanitizer basically overnight [0]. The requirement to add denaturing components to alcohol was suspended during the pandemic specifically to allow it [1].
[0] https://www.smithsonianmag.com/smart-news/distilleries-aroun...
[1] https://www.ttb.gov/laws-regulations-and-public-guidance/pub...
I swear there was one cheap sanitizer brand that smelled like tequila. Figured this is what they were doing.
> the treatment for methanol poisoning is… ethanol!
I looked this up, it is directionally correct but if you are in a hospital setting they have better options https://www.ncbi.nlm.nih.gov/books/NBK482121/
> even fruit based fermentations with significantly higher pectin concentrations only produce trace methanol
Would using pectinase to break it down first reduce the risk?
It would make it worse, by making the pectin available to be fermented!
Ah I see.
As someone living in the Balkans, home brewing is a national passtime for every nation around. When every family has its own recipe for brewing alcohol, killing ourselves would've been achieved many centuries ago if it was a real concern. Methanol is an issue when some dumbshit decides to cell chemically produced trash on industrial scale instead of buying the expensive ingredients.
almost every year there is a news story of some Western tourist visiting another country dying from bootleg methanol alcohol
As I said, this happens when someone tries to sell illegally produced trash created not by brewing but with sugar, chemical essence, and whatever they've mistaken for ethanol. The tax on alcohol creates a black market and some people taking part in it are either dumb or lazy and those are the cases you hear about.
Raised and addressed in an earlier post on an earlier article on HN https://news.ycombinator.com/item?id=47736298#47737600
I did mention all of that. When the same topic came up a few days ago.
Was it missed or intentionally downplayed/ignored because people came into the discussion with priors that they were eager to maintain?
Seems like these sorts of "yes it could be unsafe in theory but the reality of physics and incentives make this mostly irrelevant" type things get missed far too often certain parts of the internet to be coincidence.
That said, the fact that it dropped on a weekend did it no favors the first time around.
Speaking as a brewer, I can tell you that tons of people who should know better actually believe the methanol thing and will even quote some sciency words to make their argument. I think its a case of bad information coming from black market distilling being propagated uncritically. People who know better (licensed distillers) have no incentive to argue against it.
Also, this line is quite funny on its own because while understand what she actually meant, it can be very easily reinterpreted as "only actions committed out-of-home should be crimes; murdered someone in your home? welp, our hands are tied, have a nice day".
I think the point is that murder is handled by the states, not Congress. This is about what the federal government can do, not all government.
Murder can be federal crime if it involves:
And in some locations, the federal government holds exclusive jurisdiction, so they better enforce these laws :)
This is the question I'd love to see asked to people running for President. Name something you think the States can do that the Federal government is prohibited from doing.
The answer isn't something we should accept as an opinion, though. For example, laws prohibit the federal government from (direct) involvement in elections.
I think you are confused. The constitution explicitly grants Congress the right to pass laws regulating federal elections:
The law is something we made up... Of course you can criminalize anything, that's the whole point of the law!
Sure. But by the text of the constitution (the thing we made up) Congress does not have the power to criminalize “anything,” but only things in specific areas. Everything else is left to state law.
So make an "amendment" then. You've got a bunch already
That always shuts constitutionalists up
Reposting my comment from the last thread:
For those wondering, the opinion[0] doesn't address the Commerce Clause power (and Wickard and Raich) becaue the government abandoned that argument. See footnote 5.
The Commerce Clause issue is raised in our other case[1] that's now pending before the Sixth Circuit.
(I argued both cases.)
[0] https://www.ca5.uscourts.gov/opinions/pub/24/24-10760-CV0.pd...
[1] https://www.buckeyeinstitute.org/issues/detail/ream-v-us-dep...
Bought and rigged up a 'hand sanitizer plant' about five months into COVID. Populated the thing with thermocouples, load cells and automation with nodered on raspberry pi and a bunch of esp32s flashed with tasmota doing sensing and control. Everything talked over mqtt. Great little architecture and having it highly automated allowed me to focus on the parts that were less easily controlled for.
Dashboard: https://imgur.com/a/so7iZJX
Sanitizer run: https://imgur.com/a/iWDlNfb
Quite a lot of fun actually.
I dont need to see stuff like this. I have too many hobbies already
I had a load cell under the collection jar that would adjust heat input (via PWM to SCR) to achieve a steady output rate (dW/dt) via outer PID loop, then lower the heat to just below boiling when it got to 700mL to keep it hot but pause output. It'd play a tone, I'd swap in a new jar then resume ignoring the whole thing. (I'm lying, I'd sit glued to that thin little stream of sanitization precursor teeter on breaking up the entire time.)
I stopped messing with it right before starting to measure/vary water supply through the condenser coils so I could more directly manage reflux ratio. Also had planned a float/load cell to calculate specific gravity.
All sorts of little side quests and fun mix of art/science to get into.
You know, if any of those other hobbies start to lose their lustre. :)
(for real though, the nodered on pi controlling a squadron of esp32 workers over wifi/mqtt was really nice, in case you would have any use for such a thing in any domain)
Have you tried putting the sanitizer in ultrasonic bath with charred oak chips? Asking for a friend.
Haha I actually have a bag of chips but never bought a bath large enough to be worthwhile. Started going down the juniper/citrus/rosemary/coriander/etc route instead.
The best liquor I ever had was by a state police detective who had been home distilling since he was 12. It was made from rye and corn, but tasted like peaches.
I think it is kind of magical to witness the process. I only experimented a few times, and never aged it, so every was very sharp. The best was a sharp brandy made from a bottle of wine I bought. The worst was using a leftover keg of beer, which bittered the copper pipe, so everything after tasted like gin.
I would recommend people try it. You can make one out of copper pipe from a hardware store, a few fittings and a pressure cooker. Be safe, of course, and remember that ethanol is used as a preventative for methanol poisoning :)
The best I’ve ever done was a double distilled Spanish box wine we picked up for 1eur/l. The wine was undrinkable, but the brandy was sooooo smooth.
Next best was cheap tokaij furmint, distilled once and then mixed back into some of the undistilled wine. Basically the same thing as pineau de charante, but Hungarian and on the kitchen table.
I'm not sure if it extends to box wines or Spanish wines, but my main complaint of bottom-shelf wines in the US is that they're pure sugar/acid/alcohol with almost no extra flavors and pretty bad distributions of the main components (especially being far too sweet). A small pattern I'm noticing in your description is the presence of sugar in the distillation inputs. Assume I know nothing about distillation; is that relevant?
> A small pattern I'm noticing in your description is the presence of sugar in the distillation inputs. Assume I know nothing about distillation; is that relevant?
Sugar should be completely removed by a proper distillation setup (although a lazy setup can allow some "contamination" with sugars).
To me, the refractive index of hot ethanol makes it sparkle like a diamond when leaving the still.
I don't drink anymore, but man I loved distilling. It's like magic.
I know a few cops who moonshine. It's a natural part of my neck of the woods, and it's wonderful.
The substantial issue is not "unconstitutional" or "revenue", but instead "corporate protectionism". The elephant in the room.
There are certainly concerns about home distillation. The question is whether We address those concerns uniformly or whether protections of "tax revenue" is really protection for corporate interests.
We live in a time of toxic corporatism. Not all corporations are toxic, but those who prioritize their interest over the common good are indeed toxic. Everyone has the right to use nicotine and smoke cigarettes. You can buy them - if old enough - anywhere. But the use of cigarettes is toxic. As are vapes. But some corporations believe that their wealth is worth all the early deaths and health costs that a lifetime of smoking brings.
It is the behavior of these corporations that is the issue here. Those who take the Friedman Doctrine to toxic extreme. The courts have promoted these greedoconomy by enacting United vs FEC and other anti-democratic policies. In contravention of their duty.
Corporate interest have become so powerful that we have become a corpocracy rather than a democracy.
Jeff Bezos has "Democracy dies in the dark" as the motto of the Washington Post. Democracy dies with the Friedman Doctrine and United vs FEC. Thanks Jeff and to all of the other corporate overlords.
It's been way too long since I've taken a political science course, but does this mean that the ban is struck down for the entire country, or just the area that the 5th Court of Appeals covers?
The ruling only has binding precedent in the 5th Circuit, other circuits aren't bound to follow it. Formerly this kind of ruling would come with a nationwide injunction to force the issue but now that those are severely curtailed by the Supreme Court it's only binding to the courts under the jurisdiction of the 5th circuit.
Decisions in other circuits can be very persuasive to other circuits but they're not required to agree the same way a Supreme Court ruling is binding. Circuit splits are moderately common and usually trigger a review by the supreme court if an appeal wasn't filed for the earlier decisions.
Nationwide injunctions are a very recent legal innovation -- as in, extremely rare until the 2000s, and uncommon until the 2010s.
They were not how this situation was handled for nearly all of the existence of the United States.
https://en.wikipedia.org/wiki/Nationwide_injunction
Seems like a perfectly valid one. If the government is violating the constitution or a persons rights why should there be suits all across the country to get that recognized? Especially when the question isn't on something with a lot of particularized tests that's sensitive to the exact case, eg 4th amendment law? Why should rights be so dependent on someone in my particular part of the country having sued?
> If the government is violating the constitution or a persons rights why should there be suits all across the country to get that recognized?
Because one judge in one county shouldn't be defining the laws for the whole country? Sure it's great when they issue a ruling you like, but what about when it's a ruling that you don't. If it's a knife-edge situation then letting several judges rule and having the supreme court sort it out is the right thing; if there's an obvious right answer then every court will rule the same way and it doesn't matter.
> Why should rights be so dependent on someone in my particular part of the country having sued?
Your rights are always dependent on your willingness to sue to defend them. It's nice if someone else does the legwork and sets the precedent, but you shouldn't depend on that.
It's rarely down to one judge in one county though, most are entered pending appeal and the appeals court can immediately put the injunction on hold or in cases like this the first injunction might come from a circuit court who's far from one judge, by the time it gets to a circuit it's gone through multiple judges and some cases are heard by a bank of judged instead of just one.
> Your rights are always dependent on your willingness to sue to defend them. It's nice if someone else does the legwork and sets the precedent, but you shouldn't depend on that.
I don't have a spare million sloshing around even if I could get granted standing for various things I would like to defend. It's not just a problem of willingness.
On the other side, why should one crazed/corrupt judge in some state which has nothing to do with me be able to infringe on my freedoms and make my life worse? Worse, why is it possible to jurisdiction shop for the single bad actor and impose your will on the entire country?
You're not wrong, but (like most issues in a 350M-person country) it's complicated. The system is tailored to some expected level/type of corruption and bad actors. If you expect that the government is basically fine and that out of 50M people per region surely somebody will file suit if the issue is important then the current system makes a lot of sense. You get judges with more knowledge and awareness of your local issues, anything important still gets addressed, and you're resilient to some degree of random bad judges and bad actors. If those expectations are out of whack then you get worse outcomes.
In reality, the world is complicated enough that even boiling down the lists of judges and whatnot to that simple of a description is misleading at best. Neither solution is anywhere near optimal by itself. So...what next?
Yeah it's a definite mixed bag and maybe the solution is to require them to be approved by at least a multijudge panel at the circuit level before going in to place. In effect that basically already happened though, the normal pattern was for injunctions to be stayed for a few weeks pending the appeal and the appeal court would be able to extend that stay if they believed it was flawed or unjustified. The characterization of it being "one crazed judge" doesn't really hold up to the pattern of their actual use, and where judges didn't put in a stay the appeals court could as well.
Only the 5th court of appeals. However if you get caught elsewhere your lawyer will have a good appeal grounds just because your area will need to decide if they agree. If all areas eventually agree it probably never will get to the supreme court. Once several different courts hear this and make a decision if they disagree the supreme court jumps in reading all the logic of everyone below them to try to find a real answer. (It doesn't always work this way, that is the textbook ideal way, but the real world is often different).
Note that unless you think nothing of spending 20 million dollars on lawyers this is probably not something that you want to fight.
Appeals court decisions generally only apply to their own jurisdiction. But they obviously hold a lot of weight when cited in others.
Prior to this year, the entire country. Today, thanks to SCOTUS shenanigans, it likely only applies to the states involved in the lawsuit, LA. But who knows, hard to keep up with the game of calvinball the SCOTUS is playing.
You seem to be confusing precedent-setting decisions with nationwide injunctions.
Probably though the old pattern was that the plaintiffs would request and the Circuit would issue a nationwide injunction with the ruling when finding that a law in full unconstitutional.
Now we have the weird situation where the constitution is more patchwork because you have to get rulings in all the Circuits or wait for one case to make it all the way to the Supreme Court.
No, that was never the old pattern. Nationwide injunctions were unheard of until very recently -- as in, within the past 10-20 years.
https://en.wikipedia.org/wiki/Nationwide_injunction
Your own source says they've been common since 1960
It doesn’t say that. It says that the D.C Court of Appeals issued one in 1963, and then quotes the DOJ as saying “ nationwide injunctions remained ‘exceedingly rare’ for a few decades after 1963[,]” notwithstanding one issued by a district judge in New York in 1973.
Regardless of what you think about nationwide injunctions, your original assertion that “prior to this year,” a decision by a federal appellate court would apply the entire country is categorically false.
Previous discussion: https://news.ycombinator.com/item?id=47736298
Wasn’t great. Would love a second attempt focused on distilling not individualist v collectivist or immigration.
(Except for relevant connections around sharing your creations with neighbors and/or internationally inspired novel spirits.)
I am not really a fan of liquor, but I do like the idea of having skills which are universally valuable.
If you air dropped me into a random village in Africa I doubt I could 'code for cassava' but I could almost certainly make a living if I knew how to set up a basic pot still and safely create booze.
You could sanitize and disinfect with that alcohol! You could also make extracts of any plants nearby that were useful. Whiskey and vanilla beans are sufficient to make vanilla extract!
Sub saharan africa already has a very large informal distilling network (especially of bananas), a niche largely reserved for women in many regions (not sure for what the reason is for that exactly).
Probably because it involves some form of cooking, which is a feminine-coded skill.
Historically, brewing, fermenting, and distilling are all "wife chores", probably because of the feminine-coding you mention... until it becomes highly profitable, at which point men take it away.
Wine has always easy to trade. Mead and ciders, ditto.
Beer/ale, prior to preservative hops, doesn't keep long enough to be viable for intercity trade. The acceptance of hops in a communities' drinkers coincides with a gender change in brewers (documented in PhD dissertations and books).
Distillation always results in a shelf-stable product; ergo it quickly becomes male dominated in a cash society (even supplanting cash in colonial America!).
The US refused to defend the Commerce Clause, so the circuit court did not consider it, though the Commerce Clause precedent would have likely demanded a different result.
This is circuit split engineering by the administration, meant to allow the Supreme Court to overrule its precedent on the Commerce Clause or whatever.
Might as well plug this recent Criminal Podcast episode: https://thisiscriminal.com/episode-358-the-formula-3-27-2026
TLDL: During prohibition, US government required adding 5% methanol to industrial alcohol, hoping that this would stop bootleggers from selling it as liquor. It was sold anyway, resulting in many deaths.
To be fair, we still add 5-10% methanol to industrial alcohol. But also a bunch of bitterants to discourage use.
Are adding it or just distill both because it's cheaper?
Yeast microbes make ethanol, not (much) methanol.
Adding. That majority of things we ferment and distill will not produce anywhere close to 5-10% methanol.
To make it poisonous enough that the tax men leave you alone.
So cheaper in a circuitous way.
As I understand it, this only applies to the three states in that district, all of which also have statewide bans against it.
My state (Missouri) has the most lax home distilling state laws in the nation, which allow residents to produce up to 500 bottles per year. Well, at least theoretically, since the federal ban takes precedence.
Great - but this will only until home distilling becomes popular in which case they will find a new reason to prohibit it. A company will produce a home-distilling gizmo with a fancy screen and app to go with it. They will raise some few $M's and have news articles written. Probably there will be a subscription consumable of some kind. Then there will be some bad press and they will make it illegal and the fancy home distiller will become useless do to a lack of software updates.
> Then there will be some bad press and they will make it illegal
Can't have the workers getting sozzled all day, there's work to be done
I had no idea this was even a law!!! Where do I turn myself in?
The post '86 machine gun ban relies on basically the exact principle overturned here.
Yes, it'd be interesting if this gets appealed and the SC gets to take a look at if $0 tax stamps are allowable under the tax and spending clause.
Yeah, moonshine is ok but Tommy Gun isn’t? It’s roaring twenties y’all!
Tally ho!
Homebrewing beer and wine was illegal at the federal level until 1978, and the sky didn't fall when that changed. Distilling is the same kind of personal-use activity — the main difference is that the law just never caught up. Good to see the courts pushing this forward.
Wrong thread. You probably meant to post here: https://news.ycombinator.com/item?id=47755629
If you have a stock pot, a steel bowl that is large enough to sit on top of the stock pot, and a Pyrex measuring glass, you can start distilling now.
Put the glass in the center of the pot. Fill the pot with not enough mash to float the glass. Top the pot with the bowl. The condensate will form on the bowl and run towards the bottom center of the bowl, where it will drip into the glass.
I was able to distill a few bottles of home made apple wine that I had screwed up some additional flavorings on. It took a couple of hours for 3 or 4 bottles.
You'll have to do your own research on the finer details of making this work. I figured it out from first principles in the middle of doing it, so it's not that hard. Hell, people have been distilling for centuries, before they even knew what caused fermentation. Anything pre-Industrial Revolution peasants could do, I should be able to figure out in my modern house full of power tools. I'm not here to teach you how to do this, just inform that it's possible with equipment you likely already have.
> I was able to distill a few bottles of home made apple wine that I had screwed up some additional flavorings on. It took a couple of hours for 3 or 4 bottles.
My grandfather used to make something called Apple Jack using a method known as freeze distillation. He'd put fermented cider (widely available in rural New York) in a cask and place it out in the barn on a really cold night. The water would freeze, but the alcohol would not and could be tapped.
https://easygenie.org/blogs/news/cider-and-apple-jack-an-ame...
Done out West in the apple-growing states as well!
So "the water freezes, the alcohol does not," is not actually how freeze-distillation works. The entire batch freezes solid. You then let the block melt and collect the first meltings. If you start off with a 5% ABV solution, freeze it, and then melt off half of it, you'll end up with two halves where one is maybe 7% ABV and the other is maybe 3% ABV. You will need to reprocess those halves to further concentrate (yes, both halves, you want the alcohol from the 3% portion, too, but you have to do them separately or you're back to where you started) with your level of efficiency being limited primarily by your patience and how cold your freezer can get. Probably not cold enough to get above 20% ABV [0].
One problem with freeze-distillation is that it's more like removing watery alcohol and taking everything else than it is like in boil distillation where you're trying to remove alcoholic water and leave everything else behind. So you still need to make multiple runs to get the ABV up, but boiling will remove impurities, whereas freezing will concetrate them.
[0] IDK, that's just a guess, I'm not inclined to look it up. I'm not writing a reference guide here.
Just telling you how my father remembered it. Not sure how big the cask or barrel was, but if time and temperature are controlled, how will that affect the rate of ice formation inside the cask? What happens to the remaining unfrozen liquid in terms of ABV?
Do not drink, fight the calories.
Have a beer for that news!
It'll be interesting to see how many people get methanol poisoning from trying their hand at it without doing the research properly. That being said, so long as it's for private or non-profit use, I don't really see the harm here.
>It'll be interesting to see how many people get methanol poisoning from trying their hand at it without doing the research properly.
If you're into home brewing or distilling, the first and only comment people completely unfamiliar with the process say is something about going blind because of methanol. It's disappointing because the process is so rich with history and really interesting problems to solve but the zeitgeist is completely poisoned by prohibition-era propaganda.
Yes, it's exhausting.
Methanol is only ever a tiny portion of the fermented output and that's only with grain fermentation. There's nowhere near enough to blind anyone. Fruit or sugar fermentation does not produce any methanol. In that case the unwanted contaminate is ethyl acetate, which is less harmful but still ruins the drink. It gives bad whiskey its burn and causes hangovers.
In both cases the procedure is the same: run the still very slowly at first to increase reflux, pulling off the "foreshots" until contaminants are gone. In the process the still head temps will stabilize as the various low boiling trace compounds are eliminated.
Then one runs the still at a normal rate, collecting heads, middle, and tails, and blending those according to one's skill to get the desired product.
The middle jars are the clearest and cleanest alcohol, but the heads and to an extent tails contain aspects of the flavor and lots of good alcohol. Whatever isn't used for final blending will be collected and recycled back through the still in the next batch.
Properly distilled moonshine is very clean and smooth, like drinking water. No burn and no hangover. If it burns the tongue or gives a hangover, that's because it was not distilled to the highest standards. Most commercially available alcohol isn't.
Badly distilled moonshine is 100% a product of prohibition and would not exist for long in a free market, because drinkers won't tolerate it.
In this very comment section an earlier post claimed the opposite (that specifically grain fermentation did not produce the big M), and sounded just as knowlegable and plausible to the lay-ear.
The person you're responding to is incorrect, fruit fermentation produces methanol: https://pmc.ncbi.nlm.nih.gov/articles/PMC8125215/
The primary mechanism of methanol production during fermentation is from pectin degradation. Grain contains considerably less pectin than fruit, so grain fermentation produces less methanol than fruit.
Unless they try to make booze from woodchips, they'll be fine. Using fruit or grains or potatoes makes it really hard to end up with enough methanol to be dangerous.
Probably none. Unless someone is intentionally adding methanol to it.
This is what actually happened. Methanol was put into industrial ethanol to prevent people making drinkable booze out of it. It was required. It was the prohibition era version of spraying Agent Orange on a cannabis crop.
Probably zero. The problem with methanol comes when distilling big batches. Then you can have it accumulate in the beginning.
I dunno, I tried making some myself when I was quite young and I can still see. Don't know what I did wrong / right...
[dupe] https://news.ycombinator.com/item?id=47736298
they also need to strike down the state laws restricting collection of rainwater on you own property.
how...uh...explosive...are home stills?
They're a significant fire hazard which is why ATF regulations for stills require them to be located at least 100 feet from a residence.
I live in a city with 2 distilleries. You can smell when they're dealing with the mash because everyone in town can smell it. Also, we all get some black mold (not the really bad one) all over our siding which I think is some byproduct of the fermentation step.
My father worked in the oil business. As a chemical engineer, he was brewing his own moonshine (Poitín [pronounced 'poh-cheen'] in Ireland, Sidiki [means 'friend'] in Arabic language countries) since he was in university. In Saudi Arabia, there were frequent home fires in the western-expatriate communities. Newspapers reported them as "unattended cooking pot" fires. It happened several times per year in the Ras Tanura community they last lived in.
Thanks for sharing your comment. I was skeptical about your claim that black mold would be a consequence of living near a distillery, but in fact, it is. It is called Whiskey Fungus and is related to the aging of the spirits.
https://en.wikipedia.org/wiki/Baudoinia
Yep, that's it. They all look the same with a human eyeball. Or I need better eye glasses.
> The fungus can be removed from buildings using high pressure water jets, bleach, etc. According to a report from the Kentucky government, it has not been shown to cause anything other than cosmetic effects thanks to its mode of nutrition via the carboniferous atmosphere, rather than the decay of building materials in general.
It reaches higher up the siding than I can reach with household cleaners. It makes the house look dirty. Which I really don't care about, since most folks in the neighborhood have the same schmutz on their homes. It doesn't seem to like cement, so sidewalks & foundations aren't affected (that I can see).
Crikey. My dad (and just about every other westerner) used to brew sid down the road in Dhahran, I never heard of fires from it.
I would say: not explosive. I've seen a decent number of setups, and I can think of three areas where you could be concerned with safety (not necessarily where you should be):
1. Most use propane burners (the exact thing you'd use for homebrewing which is already legal and safe, and also similar to what some large turkey fryers use) which can be risky, but some are electric (120v or 240v).
2. Stills are an open system insofar as there is a way for pressure to escape - if you're goofing things up, you might vaporize and not recondense your ethanol (eg, because you have the heat way too high and/or aren't doing a good job of cooling down the vapors), and it's possible for that vapor to start on fire. I've seen it happen, and it's certainly a spectacle but wasn't particularly dangerous.
3. The distillate itself (ie, ethanol) is usually pretty potent, especially the foreshots and heads. Let's say 70%+. Especially as it's coming out, it's still prone to evaporation, and you could have a combustible/explosive risk here, but I've never seen this to be an actual problem.
Not explosive, but still a potential fire hazard, especially if a still gets way too hot (coolant system fails) and alcohol vapors escape. The risk becomes extremely minimal when using an electric still.
With an electric boiler, risk of fire is essentially zero. But if it did boil over due to cooling system failure, something else in the room (a spark from a relay, etc) might cause an explosion. This is why runs always need to be human attended and monitored, unless it is truly a bulletproof well tested setup that is designed for automated operation.
The ultimate alcohol boiler for small runs is an electric water heater. They have an inert glass coating on the inside, and as long as all plastic is removed and fittings are replaced with lead-free copper then it's safe.
You can match the heating element to the still head and always be assured of running it at exactly its maximum speed. Both heating elements can be used to speed up initial heating of the contents before dropping down to one element for the run.
Get a short, stubby water heater for best results. Then you can set your receiving pot and other stuff on top, like it's a table. Most painless and trouble free distilling experience ever.
Nixon and McCaw wrote a great book on distilling and they also sell a fine copper wool packed column that, at full length with extension, will support 1500W continuous boiler power. The stainless pot they sell as a boiler is good to get started with and works as a great receiving pot for the water heater boiler. If you upgrade the bottom water heater element to 6000W (normally 4500W in most heaters) and run it at 120V (half voltage), that drops it down to 1/4 power or 1500W, so a perfect match.
Truth! I converted my still to electric and would never go back to gas now that I know how easy the conversion is. Also uses air cooling so that almost no water is wasted.
they're really not. they're generally not a pressure vessel, and even when I've had leaks of ethanol, the fire went out immediately after being removed from heat.
today's home stills are usually plug-in resistance heated chambers with a still head, and are very high quality. my flame-out was from a pot still that was sealed with flour and water, not a modern still.
less than a meth lab
Big beer head Kavanaugh and Kegseth are probably jumping for joy.
A win against the over-application of the interstate commerce clause that benefits everybody! Quick, how can we make this partisan?
Doesn't apply to beer anyways.
I admit I posted this to just find a reason to dunk on this admin.