“When men have a fight and hurt a pregnant woman, so that she suffers a miscarriage, but no further injury, the guilty one shall be fined as much as the woman’s husband demands of him, and he shall pay in the presence of the judges. But if injury ensues, you shall give life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, stripe for stripe.”

As it is not the topic at hand, we will leave aside for the moment the fact that this passage clearly prescribes different standards of legal protection for the born and unborn.

Miller explains that talionic law was not a criminal system, but rather a tort system that assigned the property rights equal to the tort to the victim of the tort. From the interview:

Your book argues that we often use the term “eye for an eye” to describe a harsh kind of justice from the past. But talionic societies could be said to put a higher value on human life and the human body than we do. They were much more committed to finding the exact worth of body parts and lives. So, let’s say you poke out my eye…

Then, instantly, my eye becomes yours. To get the value exactly right, we say an eye is worth an eye. You have a right to my eye. Now you can say to me, “I’m going to take your eye.” Then I’m going to say, “Hey, what would you be willing to accept instead?” It becomes an initial bargaining position.

If you want victims to be more highly valued and you want real, adequate compensation, this is how to do it. Now if I offer you what some lousy insurance company says your eye is worth — say, $100,000 — you’ll say, “No way! I would never have let you take my eye for that.” Instead, you can be sure I’ll put the same value on not losing my eye that you would have put on yours, and I will pay you that amount to keep my own eye. How about $5 million? Let’s start there. And we’ll bargain it out.

The efficiency is incredible. Rather than having lawyers argue before a judge or jury as to the extent of harm caused by a tort, they used a system that, by simply assigning property rights, accurately determines the proper value of the restitution. Lower transaction costs and efficient allocation– Coase would be proud.

Some of Miller’s comments, such as his disparagement of what he sees as modern society’s inability to accurately value the lives of individuals, aren’t entirely convincing. Overall, however, the interview is worth reading. The insight offered into the economics of law through his comparison of the modern tort system with the talion is worth Salon’s Site Pass system.

News accounts have suggested the program vacuums up vast amounts of communications and sifts through them for possible links to terrorists. Gen. Michael Hayden, the nation’s No. 2 intelligence official, rejected that, saying on Sunday that the NSA first establishes a reason for being interested in the calls or e-mails. 

“This isn’t a drift net over Lackawanna (N.Y.) or Fremont (Calif.) or Dearborn (Mich.), grabbing all communications and then sifting them out,” Hayden said of three U.S. cities with sizable Muslim populations.

There are two problems with this passage. First, the news reports haven’t suggested that the program involves scanning large volumes of communications, they’ve explicitly stated it. Second, the passage is terribly uncritical of the General’s statement. For a sampling of what good reporting looks like, turn to the Christian Science Monitor:

On Jan. 23, former NSA director Gen. Michael Hayden, in an appearance at the National Press Club, said that the program “is not a drift net over Dearborn or Lackawanna or Fremont, grabbing conversations that we then sort out by these alleged keyword searches or data-mining tools.” 

The implication is that this eavesdropping is analogous to old- fashioned FBI mob wiretaps, in which law enforcement first identifies a target person or number, and only then affixes alligator clips to a phone line somewhere to listen in.

But it’s possible that General Hayden has just chosen his words carefully, some experts say. Given the NSA’s massive size, and the dire nature of the terrorist threat, it would be surprising if the agency had not tried to develop cutting-edge techniques that old gumshoes might not recognize.

NSA has had the ability to do automatic speech and voice recognition for at least a decade, says John Pike of GlobalSecurity.org. It may have the technical capability to essentially monitor all electronic communications crossing US borders.

The key here may be what Hayden meant when he said “grabbing conversations.” Having phone and e-mail traffic flow though NSA computers may be one thing. A computer identifying something that might be important, such as a combination of phrases that could indicate a sleeper cell communication, and pulling it out, is another.

The difference is obvious– The Christian Science Monitor, instead of reading into the General’s words and assuming them to be a flat denial, took the General for what he said and considered how his words might be intentionally misleading. It’s not unlikely that the General is simply repeating a phrase that is carefully crafted to be literally true but highly misleading. It certainly wouldn’t be the first time this has happened.

Q: All right, then. Why don’t you tell me why in the world the Bush administration would engage in this if it’s probably illegal and they could just get warrants anyway?

A: Because they’re not telling us the extent of the program– and they couldn’t get warrants for what they’re doing. They’re intercepting a large fraction of phone calls and screening them with computers that are searching for particular phrases or patterns. If a match comes up, the tip is passed along to others who can follow up on it. This method could, in theory, catch a terrorist who is under the radar. The vast majority of what comes up will be the conversations of innocent citizens, though…

That’s my guess, at least.

Surprise, surprise… Today’s Washington Post is carrying this revelation:

Fewer than 10 U.S. citizens or residents a year, according to an authoritative account, have aroused enough suspicion during warrantless eavesdropping to justify interception of their domestic calls, as well…

The Bush administration refuses to say — in public or in closed session of Congress — how many Americans in the past four years have had their conversations recorded or their e-mails read by intelligence analysts without court authority. Two knowledgeable sources placed that number in the thousands; one of them, more specific, said about 5,000.

The program has touched many more Americans than that. Surveillance takes place in several stages, officials said, the earliest by machine. Computer-controlled systems collect and sift basic information about hundreds of thousands of faxes, e-mails and telephone calls into and out of the United States before selecting the ones for scrutiny by human eyes and ears.

Successive stages of filtering grow more intrusive as artificial intelligence systems rank voice and data traffic in order of likeliest interest to human analysts. But intelligence officers, who test the computer judgments by listening initially to brief fragments of conversation, “wash out” most of the leads within days or weeks.

The Post article is worth reading, it offers a more textured view of the situation than anything else published thus far.

In the interview, Mr. Specter said that he wanted a fuller explanation as to how the Justice Department asserts that the eavesdropping operation does not conflict with the 1978 Foreign Intelligence Surveillance Act, which set strict and “exclusive” guidelines for intelligence wiretaps. 

The operation was approved by President Bush, to allow the National Security Agency to conduct wiretaps on Americans’ international communications without a court warrant. Mr. Specter said his view was that the operation “violates FISA – there’s no doubt about that.”

He also questioned why the administration did not go to Congress or the intelligence court to seek changes in the process before moving ahead on its own with the classified program after the Sept. 11 attacks.

While I disagree with him on some issues, I must say that Arlen Specter is one of the good ones.

The Secret NSA Wiretapping Program FAQ
(With extra Alito’s-confirmation-is-today tie-in)

Q: Okay, so what happened?

A: The short-but-sweet version is that the Bush administration has been wiretapping calls between people in the United States and people overseas without consulting the Foreign Intelligence Surveillance Court, which was established by the Congress for the specific purpose of providing judicial oversight of these activities.

Q: Wow, a secret intelligence court? When did that happen?

A: The law (the Foreign Intelligence Surveillance Act, or FISA) was passed in 1978. It’s Title 50, Subchapter 36, Title I (§1801-§1811) of the U.S. Code. You can read it all here.

Q: President Bush says that the program is legal. Is it?

A: We can’t be sure unless the Supreme Court rules on the matter, but it’s probably unconstitutional. The Congressional Research Service, a non-partisan research arm of the Library of Congress, reviewed [PDF] the administration’s arguments for the constitutionality of the program and concluded that, while they could not say for sure because the details of it have been kept secret, they could find no basis in law for the President’s actions.

Q: Other than the memo from the Congressional Research Service, do we have reason to believe that some sort of illegal activity occurred?

A: Yes. Even NSA officials had concerns about the legality of the program. From the December 16, 2005 New York Times:

Several senior government officials say that when the special operation began, there were few controls on it and little formal oversight outside the N.S.A. The agency can choose its eavesdropping targets and does not have to seek approval from Justice Department or other Bush administration officials. Some agency officials wanted nothing to do with the program, apparently fearful of participating in an illegal operation, a former senior Bush administration official said. Before the 2004 election, the official said, some N.S.A. personnel worried that the program might come under scrutiny by Congressional or criminal investigators if Senator John Kerry, the Democratic nominee, was elected president. 

In mid-2004, concerns about the program expressed by national security officials, government lawyers and a judge prompted the Bush administration to suspend elements of the program and revamp it.

Q: What are the consequences for using information gathered without a warrant?

A: Interesting that you should ask. Under §1809,

A person is guilty of an offense if he intentionally… discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by statute… An offense described in this section is punishable by a fine of not more than $10,000 or imprisonment for not more than five years, or both. 

Q: Would each instance count as a single offense? That would mean a maximum possible sentence of tens of thousands of years in prison!

A: That’s an interesting point. I don’t know.

Q: Could this law be used to hold President Bush responsible for his actions?

A: Strictly in theory, yes. However, to see that happen while Bush was in office, you’d need a federal prosecutor to be told by his boss to prosecute both the prosecutor’s boss and his boss’s boss. That’s not going to happen.

Q: What about the challenge that the ACLU has brought?

A: It’s a nice P.R. move, but it has little chance of success. The trick here is that to bring a legal case, one has to have standing. The government will argue that it cannot confirm nor deny that any individual was under surveillance, and it will do so by invoking national security concerns. If the courts accept this line of reasoning, nobody could actually establish that they have standing to bring suit. Thus, it would be a surprise to see the case before the Supreme Court. How it would fare before the new court would be another matter entirely, particularly given Alito’s fondness for broad executive powers.

Q: Some people (Gen. Hayden of the NSA in particular) have said that President Bush had to do the warrantless surveillance because the “probable cause” standard in FISA is too high. Is this the case?

A: There are a few issues with this argument. The first is that FISA does not prevent surveillance of suspected terrorists or of individuals in contact with terrorists at all. All it requires is that the government have probable cause to believe that the people are, in fact, terrorists before they start tapping their phones. The second is that if the President finds the law to be inadequate, there’s a solution for that. It’s called Congress, sometimes known as the legislative branch– a part of the balance of powers. The third issue is that the Bush administration already rejected a proposal in June 2002 to lower the evidentiary standard. So this argument is pretty weak, at best.

Q: Couldn’t we miss valuable information while waiting for a warrant from a FISA court?

A: No. FISA allows the Attorney General to authorize surveillance first and ask for permission from the court up to three days later. Specifically, under §1805 (f), the Attorney General “may authorize the emergency employment of electronic surveillance if a judge… is informed by the Attorney General or his designee at the time of such authorization that the decision has been made to employ emergency electronic surveillance and if an application… is made to that judge as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance.”

Q: Vice President Cheney says that the warrantless wiretapping program “has helped to detect and prevent possible terrorist attacks against the American people.” Isn’t this a good justification for the program?

A: No, on two counts. First, even if the program had prevented terrorist attacks, it is not at all clear that it being carried out without judicial oversight helped prevent these attacks. FISA would not have prevented wiretapping of the individuals in any of the cases we know about–and there’s no reason to believe that it would have prevented any wiretapping that has proved useful in any investigations we don’t know about. So yes, wiretapping can be a useful tool–but to point this out is to distract from the fact that it’s being done without any sort of oversight, oversight which would not impede its usefulness. Second, it’s unclear that the Vice President’s claims are entirely accurate. From the January 17, 2004 New York Times:

The law enforcement and counterterrorism officials said the program had uncovered no active Qaeda networks inside the United States planning attacks. “There were no imminent plots – not inside the United States,” the former F.B.I. official said. 

Some of the officials said the eavesdropping program might have helped uncover people with ties to Al Qaeda in Albany; Portland, Ore.; and Minneapolis. Some of the activities involved recruitment, training or fund-raising.

But, along with several British counterterrorism officials, some of the officials questioned assertions by the Bush administration that the program was the key to uncovering a plot to detonate fertilizer bombs in London in 2004. The F.B.I. and other law enforcement officials also expressed doubts about the importance of the program’s role in another case named by administration officials as a success in the fight against terrorism, an aborted scheme to topple the Brooklyn Bridge with a blow torch. Some officials said that in both cases, they had already learned of the plans through prisoner interrogations or other means.

So it’s unclear as to how useful the program has actually been, and in any case, it being a useful program doesn’t justify it being done illegally. The whole point of warrants is to protect citizens’ rights– yes, it would certainly be expedient if I could tell an officer about the bag of marijuana that you keep in your sock drawer and he could just burst into your house and seize it, but we make officers get warrants because our founders believed that the right to privacy was worth protecting, particularly as a safeguard against tyranny:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. 

Q: President Bush has said, “You know, it’s amazing that people say to me, ‘Well, he was just breaking the law.’ If I wanted to break the law, why was I briefing Congress?” How open was the President with Congress about the details of this plan?

A: The extent to which Congress was informed is not fully known. What we do know is that President Bush wasn’t briefing Congress as a whole, or even the entirety of either the House or Senate intelligence committees. So it is misleading to say that he was “briefing Congress.” It is also not known whether the full extent of the program was disclosed to these members of Congress, however, enough information was disclosed that at least one Senator expressed concerns about the program. From the December 16, 2005 New York Times:

After the special program started, Congressional leaders from both political parties were brought to Vice President Dick Cheney’s office in the White House. The leaders, who included the chairmen and ranking members of the Senate and House intelligence committees, learned of the N.S.A. operation from Mr. Cheney, Lt. Gen. Michael V. Hayden of the Air Force, who was then the agency’s director and is now a full general and the principal deputy director of national intelligence, and George J. Tenet, then the director of the C.I.A., officials said. 

It is not clear how much the members of Congress were told about the presidential order and the eavesdropping program. Some of them declined to comment about the matter, while others did not return phone calls.

Later briefings were held for members of Congress as they assumed leadership roles on the intelligence committees, officials familiar with the program said. After a 2003 briefing, Senator Rockefeller, the West Virginia Democrat who became vice chairman of the Senate Intelligence Committee that year, wrote a letter to Mr. Cheney expressing concerns about the program, officials knowledgeable about the letter said. It could not be determined if he received a reply. Mr. Rockefeller declined to comment. Aside from the Congressional leaders, only a small group of people, including several cabinet members and officials at the N.S.A., the C.I.A. and the Justice Department, know of the program.

Q: President Bush has said, “These are not phone calls within the United States. This is a phone call of an al Qaeda, known al Qaeda suspect, making a phone call into the United States.” How extensive is this program?

A: The program is designed to only intercept conversations in which one or both ends of the conversation are outside the United States. It has, apparently by accident, intercepted a small but unknown number of purely domestic communications. From the December 20, 2005 New York Times:

But in at least one instance, someone using an international cellphone was thought to be outside the United States when in fact both people in the conversation were in the country. Officials, who spoke on condition of anonymity because the program remains classified, would not discuss the number of accidental intercepts, but the total is thought to represent a very small fraction of the total number of wiretaps that Mr. Bush has authorized without getting warrants. 

The fact that the few purely domestic conversations intercepted without a warrant were by accident is a good thing, as the case law is entirely settled in this area. In United States v. United States District Court, 407 U.S. 27, the Supreme Court unanimously held that,

[W]here practical, a governmental search and seizure should represent both the efforts of the officer to gather evidence of wrongful acts and the judgment of the magistrate that the collected evidence is sufficient to justify invasion of a citizen’s private premises or conversation… These Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillances may be conducted solely within the discretion of the Executive Branch… Official surveillance, whether its purpose be criminal investigation or ongoing intelligence gathering, risks infringement of constitutionally protected privacy of speech. Security surveillances are especially sensitive because of the inherent vagueness of the domestic security concept, the necessarily broad and continuing nature of intelligence gathering, and the temptation to utilize such surveillances to oversee political dissent. We recognize, as we have before, the constitutional basis of the President’s domestic security role, but we think it must be exercised in a manner compatible with the Fourth Amendment. In this case we hold that this requires an appropriate prior warrant procedure. 

Extra Alito-Confirmation-Day Bonus

As a result of U.S. v. U.S. District Court, a man named Keith Forsyth sued Nixon’s attorney general, John Mitchell, over conversations of his that had been illegally wiretapped. The case, Mitchell v. Forsyth, 472 U.S. 511, was argued in 1985. According to an article in the Los Angeles Times, Samuel Alito, then a Reagan administration lawyer, stated that he did not question that the attorney general should have absolute immunity from civil lawsuits stemming from decisions made while in office, but encouraged the solicitor general to argue the case on different grounds for tactical reasons. Forsyth won the case.

Q: All right, then. Why don’t you tell me why in the world the Bush administration would engage in this if it’s probably illegal and they could just get warrants anyway?

A: Because they’re not telling us the extent of the program– and they couldn’t get warrants for what they’re doing. They’re intercepting a large fraction of phone calls and screening them with computers that are searching for particular phrases or patterns. If a match comes up, the tip is passed along to others who can follow up on it. This method could, in theory, catch a terrorist who is under the radar. The vast majority of what comes up will be the conversations of innocent citizens, though.

So Bush is doing this because he thinks the program might help, and he places this small chance that it might over the implications it has for civil liberties. He hasn’t asked for Congressional or judicial review of the program because he doesn’t want details of the program known, and he has a definite contempt for the other branches of government, anyway.

That’s my guess, at least.

Perhaps Arlen Specter’s previous comments that Sandra Day O’Connor might be persuaded to return as the Chief Justice are the best sign of hope. I’m more than a little apprehensive about the future direction of the court otherwise.

On the Kelo v. City of New London case regarding eminent domain, it appears that the majority of justices trust that local governments can make decisions for private parties better than the private parties themselves. While some application for eminent domain can be found in large-scale projects to create public infrastructure, which are both clearly in the public service and highly vulnerable to the “holdout problem”, the willingness of the court to undermine private property rights by interpreting eminent domain in this way– allowing private to private transfers for commercial development– is unsettling. If a mere boost in the tax rolls is enough “public benefit”, razing someone’s home so that a larger and more valuable (and thus more taxable) one can be built could be justified.

A better test would be to allow invocation of eminent domain only if market-based solutions could not succeed.In any free-market transfer of property, the utility of the property to the buyer must be greater than (or equal to) the utility of the property to the seller. When these utilities are reflected in prices, this means that the maximum price the buyer is willing to offer must be greater than (or equal to) the minimum price the seller is willing to accept. If the transaction occurs at any price between these two, both buyer and seller are better off– one paid less than the property was worth to him, the other received more than it was worth. When eminent domain is invoked, however, the seller is given what is considered the “fair market value” of the property, which may be less than the value of the property to him, and usually is, otherwise eminent domain need not have been invoked. In a private-to-private transfer, this means that the buyer receives the maximum possible benefit, while the seller is actually harmed.

This way of doing business can have negative consequences for the public good, however, which is why eminent domain does have some use. If one were to try to build a highway without use of eminent domain, one would likely encounter the holdout problem: if all the necessary properties but one are sold to the builder, the marginal value of the final property is extraordinarily high– the owner of a lot consisting of an outhouse and a tire fire could hold out for millions of dollars, as a highway that reaches no destination but a tire fire is essentially worthless. In private developments, this can be addressed through a unanimity clause: each of the private property owners is presented with an offer, each of which is contingent on the unanimous acceptance of the offers by all property owners. In this situation, no individual owner could hold out hoping that the marginal value of his land would rise– he would either take the (hopefully generous) offer or leave it. Given the choice, unanimous acceptance would be likely. The problem with this approach in terms of projects that directly benefit the public good (pipelines, roads, power lines, etc.) is that unanimity clauses don’t scale well– the transaction costs of attempting to administer such a program with thousands of potential buyers would be prohibitive, and a single irrational property owner could prevent anything of public benefit from ever being built. Thus, eminent domain is only appropriate in such cases as this, when the free-market cannot provide a solution.

One of the best discussions can be found over at The Becker-Posner Blog; Gary Becker’s take is here, Richard Posner’s is here. Commentary on the “holdout problem” and further discussion can be found over at Knowledge Problem.

The Grokster ruling, despite the whining over at BoingBoing, makes sense. Grokster differs substantially from Sony in the Betamax case in that Grokster built a business model around illegal activity (file sharing), which Sony did not. It is true that Grokster, like Sony’s Betamax, offered some potential for legitimate use. However, Grokster was a profitable enterprise only as a result of rampant copyright infringement, unlike the VCR industry. To expect that the Supreme Court would adopt a theoretical legal use as the standard to establish a shield from liability is preposterous.

Worthy of note is Tyler Cowen’s take on “Why economists should feel conflicted about the Grokster ruling”, which makes an interesting point. However, Cowen’s argument (which, to be fair, is a book excerpt that was not written to address the Grokster ruling specifically) fails somewhat in that it considers what Cowen believes to be “deeper issues”, which basically consist of an argument for the public good of file sharing, while ignoring the fundamental issue of private property rights. While Tyler may be right about an overall efficiency gain from filesharing, he’s arguing for a solution that is puzzling from an economic perspective. Why should the record companies, who hold property rights, have those property rights eroded and lose some of the value of their property simply because it might produce an overall gain in efficiency? An argument that is fundamentally economic in nature but suggests an erosion of private property rights for a rather ethereal bit of efficiency is somewhat suspect.

Dahlia Lithwick’s commentary on the Ten Commandments rulings is classic, and does a good job of undercutting the notion that these cases are somehow “landmark” in anything other than the topic of the dispute.

Finally, on the Court’s refusal to hear Judith Miller and Matthew Cooper’s appeal in the Valerie Plame case, it would still be quite interesting to know what, if anything, Robert Novak has told prosecutor Robert Fitzgerald, and whether Fitzgerald has fully pursued Novak’s involvement. Hopefully the White House leak will be named and subjected to trial, as revealing the identity of an undercover CIA agent is inexcusable.

It will also be interesting to see whether Miller talks or takes the prison sentence to protect her administration source. The reason this is particularly interesting is that she is the same reporter who (perhaps inadvertently) bolstered the administration’s case for war with her now-discredited reports of weapons of mass destruction in Iraq. Miller has had a very successful career overall, her reporting on the WMD issue aside, and much of this success has been due to her cultivation of anonymous sources. However, this reliance on confidential sources was what allowed Ahmed Chalabi to manipulate her into publishing false claims about WMDs, and it is what had her found in contempt of court for refusing to speak to Fitzgerald. The WMD debacle embarrassed her publisher; it remains to be seen whether she will be willing to suffer more personally in her pursuit of a story.

There are two fundamental problems with the Supreme Court’s opinion in Gonzales, both of which grant Congress unnecessary powers: the principle of aggregation is misapplied, and aggregation is implicitly recognized as being relevant to federal legislation but not state legislation.The Court recognizes Gonzales as being substantially similar to an earlier case, Wickard, in which a farmer was producing more than his allowed quota of wheat and consuming the excess on his own farm. The farmer argued that because his personal consumption was non-commercial and intrastate, it did not fall under Congress’ jurisdiction. The Court disagreed, stating that,

“even if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.”

By recognizing that individual actions, taken in aggregate, could substantially undermine Congress’ ability to legislate, the Court appropriately clarified the powers of Congress to regulate interstate commerce in Wickard. It is not a great logical leap to see that thousands of small farmers, all producing in excess of quotas and consuming the excess themselves, thereby eliminating their demand for wheat from the interstate market, would have an effect on prices.

The fundamental difference between Wickard, which was decided primarily along these lines, and Gonzales is that the activity in Wickard had a clear aggregated effect on interstate commerce. In Gonzales, the activity of the marijuana growers and medical users did not have any effect on interstate commerce either in the individual case or the aggregate. The Court’s opinion is based on the idea that the respondents in the case could have sold the marijuana on the interstate market, and that “the diversion of homegrown marijuana tends to frustrate the federal interest in eliminating commercial transactions in the interstate market in their entirety.” The court thus holds that the respondents’ activity falls under Congress’ purview and that the state law does not shield the respondents because, had they violated state laws by committing an act that they did not commit, the aggregate of this imaginary activity would frustrate the federal interest.

To be fair, Wickard does mention the possibility that wheat could have been drawn into the interstate market, but it is generally agreed that this is not the point that decided the case. Unfortunately, the mention of this possibility created a precedent that has been liberally applied by the current court. Now Congress’ jurisdiction can be interpreted as extending to any individual’s action that could theoretically lead to another action, legal or no, that could, if performed by many people, affect interstate commerce. It is hard to imagine something that doesn’t fall into this category.

In addition to this misapplication of aggregation, there exists another problem with the Court’s decision. If we are to embrace a legal principle, we should do so without prejudice; the Court fails to do this with respect to aggregation. The Court recognizes that individual activities, taken in aggregate, can have a substantial effect on interstate commerce, and uses this idea to expand the scope of federal regulation. It fails to recognize, however, that individual activities, taken in aggregate, can also have no effect on interstate commerce. If a state law is structured such that the sum of all activities in the state exert no influence on interstate markets, then those activities should fall outside Congress’ jurisdiction, despite the fact that some individual activities may have such an influence.

The problem is that the Court recognizes aggregation and the supremacy clause as separate concepts that, when taken together, are sufficient reason to consider the respondents’ actions in Gonzales under federal, rather than state, law. By doing so, the Court fails to make the distinction that the concepts are in fact interrelated. If the state law is structured such that the aggregate effect on interstate commerce sums to zero, then aggregation should not be considered as reason for invocation of the supremacy clause. Given the demand for medical marijuana, the law in a state can be structured such that the production of medical marijuana is carefully regulated and monitored so as to produce no excess that could be diverted and that patients are paying a sum equal to the black market value of the marijuana so that there exists no incentive for patients to divert supply. Under such a circumstance, there would be no net effect on interstate commerce, thus rendering that state’s experiment a legitimate one under our Federal system. As the opinion of the Court contains no such nuance, it fails to properly capture the spirit of our Constitution and further diminishes the power of the States.

The Court’s opinion contains a further error, this one somewhat ironic. If in fact the medical marijuana patients in California are generally not exerting an actual effect (as opposed to the theoretical effect the Court considered) on interstate commerce, the Court’s opinion will likely be counterproductive. As the ruling recognizes the federal government’s interest in reducing supply and demand on interstate drug markets to zero, this ruling, which will cause consumers of medical marijuana to participate in the black market, will achieve the inverse of the desired effect. It’s well-known that the drug trade is driven by demand; the Court’s disregard of this fact has produced an absurd ruling.