Don't believe me? Read a sampling of the Establishment Press's own words.
The editorial board of The New York Times: The Court and Marijuana
We read the Supreme Court's decision on the medicinal use of marijuana with mixed emotions. We certainly wish that the Justice Department could be weaned from the gross misuse of the federal Controlled Substances Act that led to its campaign against the use of marijuana by terminally ill people in the 11 states where it is legal for doctors to prescribe it. But we take very seriously the court's concern about protecting the Commerce Clause, the vital constitutional principle that has allowed the federal government to thwart evils like child labor and segregation.The dissenters in the 6-to-3 decision, Justices Sandra Day O'Connor and Clarence Thomas and Chief Justice William Rehnquist, opened the door for conservatives who want to sharply reduce Congress's use of its power to regulate and protect interstate commerce. These conservatives want to turn the clock back to before the New Deal, when workers were exploited, factories polluted at will and the elderly faced insecure retirements.
[...]
We hope good sense prevails. And we hope that Justice Antonin Scalia, who seems to be campaigning for chief justice, remembers that he concurred with the majority this week the next time the court hears a federal-powers case on, say, air pollution.
The U.S. Supreme Court's refusal to allow state laws to protect medical marijuana users from federal prosecution seemed to be tied up in a somewhat arcane debate over the federal government's power to regulate interstate commerce.But was it really? Hold the court's support of Congress' power to impose drug laws up against the same court's rejection of Congress' power to impose laws through the Gun-Free School Zones Act and Violence Against Women Act. The court majority views the local use of a locally grown herb as of more interstate interest than guns in schools or domestic violence.
©1996-2005 Seattle Post-Intelligencer
THE SUPREME COURT'S decision Monday in the case of Gonzales v. Raich is a defeat for advocates of the medical use of marijuana, because the court ruled that federal drug laws can be enforced against patients even in states that would permit them to light up. But the true importance of Raich has nothing to do with drugs; it relates rather to the balance of power between the federal government and the states. The government's crusade against medical marijuana is a misguided use of anti-drug resources; that doesn't mean it's unconstitutional. A Supreme Court decision disallowing federal authority in this area would have been a disaster in areas ranging from civil rights enforcement to environmental protection.The Constitution's commerce clause, which provided the foundation for the court's ruling in this case, is the foundation of the modern regulatory state, underpinning since the New Deal huge swaths of federal law: worker protections, just about all federal environmental law, laws prohibiting racial discrimination in private-sector employment. Over the past decade, however, the court has tacked away from its most expansive vision of national power, emphasizing that the commerce power is not unlimited. The court said, for example, that Congress can't use the clause to legislate against sexual assaults or to regulate gun possession near schools. That made sense; without some outer bound of the commerce power, Congress would have authority over anything. But the court's recent reconsideration of the commerce clause carried dangers, too. Limit the legislature too much and Congress lacks the power to run a modern country whose national policy is necessarily more ambitious than it was in the 18th century.
The plaintiffs in Raich, patients who regard pot as essential medication for their conditions, contended that because their use of the drug is noncommercial and within a single state that tolerates medical marijuana, the federal government lacked the power to stop them. This may seem like an attractive principle, but consider its implications. Can Congress protect an endangered species that exists only in a single state and may be wiped out by some noncommercial activity? Can it force an employer who operates only locally to accommodate the disabled?
Justice John Paul Stevens, writing for the court, emphasized the critical principle that if Congress enacts a regulation aimed at "the interstate market in a fungible commodity" -- in this case drugs -- "[t]hat the regulation ensnares some purely intrastate activity is of no moment." Justice Antonin Scalia reached the same conclusion for slightly different reasons. The result is a six-justice majority that stands strongly against a revolutionary approach to commerce clause jurisprudence. While questions remain, the importance of this cross-ideological statement is enormous -- even if it means the Justice Department can continue harassing sick people.
© 2005 The Washington Post Company
This week, in the most important federalism decision of the year, the Supreme Court upheld Congress's power to ban the local cultivation and use of medical marijuana. Although the federal policy at issue may be open to question--we think Congress should reconsider its ban on the attempt by California and ten other states to allow medical marijuana in limited circumstances--the Supreme Court's deference to Congress's broad power to regulate the economy is an occasion to celebrate. Had the Court ruled otherwise, as a group of libertarian judicial activists urged, it would have encouraged a radical assault on Congress's power to regulate a host of issues, including crime and workplace safety. But the news was not all good: An unusual coalition of three justices--Sandra Day O'Connor, William Rehnquist, and Clarence Thomas--dissented from the ruling, suggesting that anti-regulatory forces on the Court remain strong.The 6-3 majority opinion in Gonzales v. Raich by Justice John Paul Stevens was an uncontroversial application of Supreme Court decisions that have been settled since the New Deal. In 1942, the Court upheld Congress's power to regulate wheat grown for personal consumption, on the theory that locally consumed wheat might reduce demand for wheat that crossed state lines. By the same logic, Stevens held for the majority, Congress could prohibit the use of marijuana grown for personal medical use, since it, too, might have a substantial effect on the national market for recreational pot.
In a welcome development, the majority included Justices Antonin Scalia and Anthony Kennedy, two leaders of the so-called federalism revolution on the Rehnquist Court. In other cases, which this magazine has criticized, Scalia and Kennedy have voted to strike down congressional regulation of guns in schools and violence against women.
Unfortunately, three other champions of states' rights--O'Connor, Rehnquist, and Thomas--endorsed a reckless judicial activism. In her dissenting opinion, O'Connor's contempt for Congress converged with her devotion to states' rights...[...]
In his dissent, Thomas said that courts should take it upon themselves to decide whether congressional regulations are "appropriate" and "plainly adapted" to executing powers explicitly listed in Constitution. Thomas's logic would uproot more than a century of Supreme Court cases, including the 1942 wheat case, and could paralyze the government's effort to enforce myriad regulations, including environmental and labor laws. As Stevens pointed out, Thomas's reasoning would also call into question Congress's power to regulate the possession and use of pot for recreational purposes, an activity that all states now prohibit.
Happily, the Constitution in Exile movement has had a rocky few weeks before the Supreme Court. On May 23, in Lingle v. Chevron, O'Connor, writing for a unanimous Court, rejected the libertarian claim that a Hawaii commercial rent-control law violated the Fifth Amendment's protections for private property. But the fact that O'Connor, Rehnquist, and Thomas remain committed to aggressive judicial oversight of Congress's power to regulate the economy suggests that conservative judicial activism is not defeated; it still has powerful allies. Which is why the views of Supreme Court nominees about the Constitution in Exile should be a central question in the confirmation battles to come.
Copyright 2005, The New Republic
Before you get indignant at the Supreme Court, however, think about how you might have reacted in the reverse situation. Suppose Congress did as we asked and enacted a federal law allowing compassionate use of marijuana. And suppose that California continued to arrest doctors and patients under its own drug laws, which had no such exception. Would you have said: "Well, that's federalism for you?" Or would you have found the arguments of the majority in this case, Gonzales vs. Raich, strangely compelling?The commerce clause authorizes the federal government to regulate trade within the U.S. and abroad. For decades, during and after the New Deal, this clause became the all-purpose authority for anything the federal government wanted to do, or to prevent individual states from doing. Sometimes this was a stretch. The 1964 Civil Rights Act, for instance, was justified constitutionally by the need to regulate interstate commerce.
Federalism and the commerce clause bring out the hypocrite in all of us. If you're against some government policy, you tend to believe that the problem would be better handled at the state level. If you're for it, you believe that it is one of the nation's core functions and must be addressed nationally. There are enough contradictory Supreme Court declarations to allow either case to be made.
In the tired arguments of the last century about the courts and the Constitution, it has usually been liberals with ambitious national agendas favoring a strong commerce clause that clears away the underbrush of state laws in their path. Meanwhile, conservatives have defended the sanctity of "states' rights." When the issue is the medical use of marijuana, the siren song of states' rights tempts liberals and libertarians, while more mainstream conservatives are happy — on this occasion — to see the jackboots of Washington come stomping on the prerogatives of Sacramento. Thus Gonzales vs. Raich is an excellent litmus test of intellectual integrity.
Chief Justice William H. Rehnquist and Justice Clarence Thomas pass the test. They dissented from Monday's ruling on the grounds that the federal government has no right to force its drug policy on the state of California. We want to pass the test too. Given how many policies this page has happily urged the federal government to impose on … well, Alabama and Mississippi and South Carolina, if not California, that clearly means supporting the court's decision.
Copyright 2005 Los Angeles Times
But, there it is, people. As clear as any mainstream American statist could have put it. Without the Commerce Clause (or the insane degree to which it has been stretched to fit the statists' goals), the "modern regulatory state" would have no Constitutional justification. A significant amount of the federal intervention in our lives would probably not exist and whatever did would not be nearly as aggressive and extensive as it is now.
This is one of those scenarios where I almost wish I was a vocal activist who campaigned and tried to influence agents of the state to change it's policy and laws and interpretations. Had Raich gone the other way, it would have delivered a very important and necessary blow to the federal government's powers. Of course, I'm not one of those people because I think reform, in the long run, is nearly impossible and a certain drain on our short-term interests.
I feel roughly the same for the upcoming Kelo vs. New London case regarding eminent domain. Hope, because I want the state to get a solid kick in the nuts. Resignation, because I'm convinced it won't do much because the state always finds a way to expand.
On the other hand, if I were a true limited government activist, these losses would hurt even more. It must be infuriating to Constitutionalists and the like to see the offspring of their beloved Founding Fathers do such blatantly wrong things. I wonder if they understand that it is the very nature of such an entity and the people that populate it to laugh in the face of voluntary restraint.
NYT link from Radley Balko.
UPDATED 6/10/2005 3:15pm
The Supreme Court Rules Itself Subject to Congress
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