Don't Let Me Stop You

What the heck, you'll do what you want anyway.

Medicinal Marijuana and the US Supreme Court

Posted by Dan Draney on June 9, 2005

The Constitution established specific powers for the federal government. The remaining powers were reserved to the states and the people. Since then the federal state has gradually, steadily usurped more and more of the powers of states and citizens. Sometimes the expansion of federal power is promoted by liberals, sometimes by conservatives.

The latest vehicle for increasing the power of the federal megastate is one beloved by liberals and conservatives alike. The “Drug War” is so important that if sick people were able to grow and use marijuana to alleviate their suffering, the very fabric of society would be ripped beyond repair. To prevent this calamity the Bush Justice Department has battled to overturn the will of a majority of Californians (and eight other states) on this issue.

By 6-3 the US Supreme Court has now ruled that the feds can overrule state laws on medicinal marijuana, based on its power to regulate “interstate commerce.” But if “interstate commerce” includes private parties growing and using medicinal marijuana in their own homes, what is not covered?

The ruling is available here (pdf format). The majority opinion, written by Stevens, also includes Kennedy, Souter, Ginsburg, and Stevens. Scalia wrote a separate, concurring opinion. O’Connor wrote the dissent with Rehnquist and Thomas. Thomas filed a separate dissent for one part.

As the Wall Street Journal wrote on today’s editorial page:

OpinionJournal: “We’ve never supported drug legalization, even in its ‘medical marijuana’ drag. Still, we can’t help but feel uneasy about the Supreme Court’s 6-3 decision Monday in Gonzales v. Raich, which held that the federal government can trump state laws permitting the possession and cultivation of small quantities of cannabis for purely personal use. As Justice Clarence Thomas wrote in his dissent: ‘If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything, and the federal government is no longer one of limited and enumerated powers.’ By ‘enumerated powers,’ Justice Thomas means the idea that the federal government can undertake only such activities as the Constitution explicitly permits. Hence the 10th Amendment, which reserves those powers not listed–such as criminal law enforcement–to the states.

[…] If, as Justice Antonin Scalia wrote in his majority concurrence, non-economic activities can be regulated so long as they are part of a ‘comprehensive scheme of regulation,’ there would appear to be no federal power the Commerce Clause couldn’t theoretically justify. […] Who knows what further intrusions into the rights of local polities the Raich decision may one day be used to justify?

Such stakes explain why many conservative legal scholars such as former Reagan Assistant Attorney General Douglas Kmiec and former Bush Solicitor General Charles Fried urged the court to recognize that federal powers shouldn’t extend this far. But Justices Scalia and Anthony Kennedy, who voted to limit federal powers in Lopez and Morrison, appear to have retreated from putting any restraint on Commerce Clause-based regulation. This was not a good decision for anyone who believes there are Constitutional limits on the federal leviathan.”

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