In medical marijuana case, Supreme Court says everything is interstate commerce [econ]

[David Farber <dave () farber net>]

Begin forwarded message:

From: Declan McCullagh <declan () well com>
Date: June 6, 2005 11:05:26 PM EDT
To: politech () politechbot com
Subject: [Politech] In medical marijuana case, Supreme Court says  
everything is interstate commerce [econ]


This might seem like unusual fare for Politech, but it's really not that
far afield. Today's decision in Gonzales v. Raich hints at how the  
Supreme Court would rule on other cases dealing with federalism. It  
also shows the lack of respect that six of the current Supreme Court  
justices have for the plain text of the Constitution:
http://straylight.law.cornell.edu/supct/html/03-1454.ZS.html

Perhaps liberals will overcome their conventional distaste for  
Justice Thomas and read his critique of how the majority got it wrong:
http://straylight.law.cornell.edu/supct/html/03-1454.ZD1.html

Background:
http://lsolum.blogspot.com/archives/2005_06_01_lsolum_archive.html

Below is GMU law professor David Bernstein's take, excerpted. It's  
worth reading. He's being diplomatic: another way to say it is that  
we live during a time of rule by men and women on the bench and in  
Congress, each governed by personal whims and predilections and  
fears. The rule of law, with a federal government properly limited by  
constitutional dictates, no longer exists.

-Declan

---

http://volokh.com/archives/ 
archive_2005_06_05-2005_06_11.shtml#1118075289

(1) The five-member majority of the Court simply does not take  
federalism seriously. Justice Stevens writes that Congressional  
factual findings are required when there is a "special concern such  
as the protection of free of speech." Apparently, however, the  
Constitution's limitations on federal power--critical by any measure  
to the American system of government--are not a "special concern," or  
even especially important.

(4) There are essentially two strategies for those who are concerned  
with civil liberties for limiting the government's ability to abuse  
the rights of the public. One is the standard ACLU strategy of being  
a liberal supporter of broad government power, and then insisting  
that the government respect individual rights, especially  
constitutional rights, when using that power. The other strategy,  
followed by libertarians, is to try to limit the government's general  
power to begin with because the government cannot abuse power it does  
not have. The drug war provides a least one example of the  
superiority of the libertarian strategy. The drug war has run  
roughshod over the civil libertarian accomplishments of the Warren  
Court, leading to a weakening to various degrees of the First,  
Second, Fourth, Fifth, Sixth, and Eighth amendments, not to mention a  
huge increase in the prison population, and the denial of the basic  
right to use relatively innocuous recreational drugs, even for  
medicinal or health purposes. Far better to have denied the federal  
government the power to regulate intrastate use of and sale of drugs  
to begin with, as, I recall, Justice Van Devanter advocated on  
Commerce Clause grounds way back in the "dark ages" of the 1920's.

(5) I was both amused and angered by Justice Stevens's paean to the  
democratic process as the appropriate avenue of relief for advocates  
of medical marijuana at the end of his opinion. Every Justice who  
joined Stevens's opinion voted to prohibit states from regulating  
homosexual sex in Lawrence and [if they were on the Court at the  
time] voted to limit the government's power to regulate abortion in  
Casey. Why was the democratic process not the appropriate avenue of  
relief for the victims of overzealous government regulation in those  
cases? It seems we do to some extent live under a system where the  
personal preferences of the Justices, having nothing to do with the  
history, text, or logic of the Constitution, dictate when the Supreme  
Court will or will not intervene to overturn particular regulations.
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