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

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:

Perhaps liberals will overcome their conventional distaste for Justice 
Thomas and read his critique of how the majority got it wrong:


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.




(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 

(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.

Posted by Declan McCullagh on Jun 07, 2005 in category economics

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