Supremes rule against medical marijuana

Finn d'Abuzz wrote:

Mankind has always sought altered states of consciousness and I suspect we always will …Medical marijuana is something of a joke…..while I have no doubt that there are a handful of individuals who actually receive some sort of therapeutic benefit ………..The use of marijuana as well as any other drug, for purely personal enjoyment, should be legalized…will dry up, billions of dollars in tax dollars will be saved, and billions more in taxes will be gained….Take a fair portion of this saved money and spend it on educating children ….There is a legitimate argument that drug abuse is not truly a victimless crime,…Based on my experience and observations (admittedly not scientific), Pot is only a gateway drug for those who suffer with addictive personalities. …………Outlawing all of the substances and practices to which people have become addicted will not put an end to addictive personalities and they will find new substances and new practices.

The above is totally irrelevant to the constitutional question of whether or not Congress has been delegated authority to enter a state to forbid the growth, use and transportation of a specified agricultural product within a state’s borders and prosecute those who abide by state law, but ignore such federal legislation.

Finn d'Abuzz wrote:

Having staked out my position on the legalization of drugs, I have to agree with the Supreme Court's ruling.

The SC did not make drugs illegal, the legislature did.

And by what authority does Congress legislate to prosecute the people within a state’s borders who comply with state law concerning the growth and use of an agricultural product? Without such power being granted by the people to Congress, the Court would be aiding and abetting in the subjugation of the limited powers granted by the people to Congress. Why do you support the subjugation of our constitutionally limited system of government, a system in which folks in government are not free to impose their whims and fancies upon the people?

Finn d'Abuzz wrote:

…the American people, through their representatives, have endorsed it

The American people have not endorsed what you suggest until they do so via the prescribe manner as outlined in Article 5 of the Constitution, which is the adoption of a constitutional amendment delegating such power to Congress as they did via the 18th Amendment with regard to a particular subject matter, but was later repealed.

Finn d'Abuzz wrote:

One can only hope that the Feds will invoke this decision only when they perceive that there is significant illegal commerce taking place rather than when some poor soul wants to make his dying days a little less unpleasant by getting high.

Do you have any idea what was intended by the people in their grant of power to Congress to regulate commerce “among” [not within] the states?

Gonzalez (Ashcroft) v Raich is not about “medical marijuana“

To understand what the case was really about see:

A most formidable domestic enemy: the SCOTUS!

Make no mistake, the Supreme Court decision in Gonzalez (Ashcroft) v Raich is not about “medical marijuana“ or the use of drugs as portrayed by the establishment media. The case is about the unauthorized exercise of power by the rich and powerful via the federal court system and their undoing of the limited power granted by the people to Congress to regulate commerce among the states. What this case really boils down to is one simple question: What did those who framed and ratified our Constitution intend by granting power to Congress to regulate commerce among the states?

JWK

"The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation and foreign commerce. ... The powers reserved to the several States will extend to all the objects which in the ordinary course of affairs, concern the lives and liberties, and properties of the people, and the internal order, improvement and prosperity of the State."

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Has anybody else noted the wide gamut of opinion so far on this thread? And you can't lump the various opinions by the known ideology of the members posting either. I think we may have found a truly bipartisan or nonpartisan issue here.

in today's Boston Globe:

Quote:

This isn't a conservative-versus-liberal, Republican-versus-Democrat issue: Both parties are drug war parties. (It was the Clinton administration in the 1990s that decided to use federal authority to thwart new state laws legalizing medical marijuana: In 1996, Clinton approved a plan to subject doctors who prescribe the drug to federal prosecution.) It's hard to tell which side is more guilty of hypocrisy. What happened to the conservatives' commitment to the principles of states' rights and limited government? What happened to liberals' concern for the rights of defendants and to the right to privacy?

The whole article follows:

CATHY YOUNG
The medical pot hysteria
By Cathy Young | June 13, 2005

WITH EVERYTHING else going on in the world, it's good to know that the federal government is being vigilant when it comes to the really dangerous people: those unrepentant chronic-pain patients who viciously insist on using marijuana to relieve their suffering. Last week in Gonzales v. Raich, the Supreme Court ruled that federal drug laws supersede the laws several states have passed in recent years legalizing the production and use of marijuana for medicinal purposes. Apparently, the actions of a sick woman in California growing pot in her basement for her medical needs affect ''interstate commerce," which means that the Constitution says it's all right to bring in the feds.

The ruling is bad legal reasoning; commentators such as Boston University law professor Randy Barnett, who argued the case before the Supreme Court last November, point out that it directly contradicts several of the court's decisions in recent years narrowing the scope of federal powers. It is also bad moral reasoning. Whether you use personal autonomy or compassion as your standard, denying seriously ill men and women access to a drug that could help them is repugnant.

Moreover, as Dr. Sally Satel, a psychiatrist and resident scholar at the American Enterprise Institute, writes in The New York Times, research on therapeutic uses of marijuana has been held back by ideologically motivated restrictions.

All this is the latest example of how the war on drugs has addled our brains. Yes, drug abuse is a serious problem. But the demonization of illegal drugs -- even mild ones such as marijuana, which tens of millions of Americans have indulged in with consequences no worse than for legal intoxicants -- has created a climate that is just as dangerous.

The persecution of medical marijuana users is one example. Here's another: Under a congressional bill proposed by Republican Representative James Sensenbrenner of Wisconsin, if you are aware of any drug use or sale on a college campus or in a home with children and fail to report it within 24 hours, you will face a minimum two-year prison sentence. Maybe we could call it Uncle Joe's Law, since it has a distinct flavor of the Stalin-era Soviet Union where people could be imprisoned for failing to report political crimes. I'm not fond of Soviet parallels for the actions of democratic government, but this parallel does suggest itself. It's all the more galling since this proposed Draconian measure is not directed at terrorists who want to kill us, but at college kids who want a few hits of pot.

This isn't a conservative-versus-liberal, Republican-versus-Democrat issue: Both parties are drug war parties. (It was the Clinton administration in the 1990s that decided to use federal authority to thwart new state laws legalizing medical marijuana: In 1996, Clinton approved a plan to subject doctors who prescribe the drug to federal prosecution.) It's hard to tell which side is more guilty of hypocrisy. What happened to the conservatives' commitment to the principles of states' rights and limited government? What happened to liberals' concern for the rights of defendants and to the right to privacy?

The libertarian solution to this problem is to legalize or at least decriminalize drug use, at least for adults. There are solid arguments for this: In a free society, people should generally be able to decide what substances they put in their bodies. On a pragmatic level, decriminalization would take drug profits for organized crime and even terrorism out of the equation. The obvious counterargument is that it will lead to more drug abuse, since obtaining drugs will be far easier. But the most likely result would be a small increase in casual use: when drugs are illegal, it stands to reason that the kind of people who obtain them are also more prone to addiction. Drug prohibition is based on the idea that the diabolical power of drugs robs people of the ability to make choices. Yet, as Satel persuasively argued earlier this month at an American Enterprise Institute conference on neuroscience and morality, this isn't true: addicts can and do choose to quit.

Satel believes that marijuana should be treated no differently from alcohol, with generally tougher drunk driving penalties. However, she does not support drug legalization; for one, she told me, it is a political nonstarter that diverts attention from practical solutions (such as more emphasis on treatment rather than prosecution). That's almost certainly true. But maybe we should start by just saying no to drug hysteria. Then, in a saner climate, we can start thinking about solutions.

Cathy Young is a contributing editor at Reason magazine. Her column appears regularly in the Globe.
http://www.boston.com/news/globe/editorial_opinion/oped/articles/2005/06/13/the_medical_pot_hysteria/

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HofT wrote:

Another article - WSJ blames the decision on liberal judges:
_____________________________________________________________

"The Supreme Court's liberal bloc--Stevens, Ginsburg, Souter and Breyer--ensured Monday with the support of Justices Kennedy and Scalia that people sick from cancer treatment will have to think first about a house call from the federal drug police before using marijuana to relieve their symptoms. ...

Liberalism to cancer patients: Drop dead."
http://www.opinionjournal.com/columnists/dhenninger/?id=110006804

This is really too funny. The "liberal bloc" on the supreme court does not form a majority, so it would be impossible for them to say "drop dead" to cancer patients without the vote of at least one of the court's conservatives. Now, I know Anthony Kennedy is regarded by some on the right as suspect after his opinion in Lawrence v. Texas, but no one, to my knowledge, has accused Antonin Scalia lately of being a liberal. This columnist, then, could just as easily have said: "arch-conservatism to cancer patients: drop dead."

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joefromchicago wrote:

HofT wrote:
Another article - WSJ blames the decision on liberal judges:
_____________________________________________________________

"The Supreme Court's liberal bloc--Stevens, Ginsburg, Souter and Breyer--ensured Monday with the support of Justices Kennedy and Scalia that people sick from cancer treatment will have to think first about a house call from the federal drug police before using marijuana to relieve their symptoms. ...

Liberalism to cancer patients: Drop dead."
http://www.opinionjournal.com/columnists/dhenninger/?id=110006804

This is really too funny. The "liberal bloc" on the supreme court does not form a majority, so it would be impossible for them to say "drop dead" to cancer patients without the vote of at least one of the court's conservatives. Now, I know Anthony Kennedy is regarded by some on the right as suspect after his opinion in Lawrence v. Texas, but no one, to my knowledge, has accused Antonin Scalia lately of being a liberal. This columnist, then, could just as easily have said: "arch-conservatism to cancer patients: drop dead."

I think the point was that ALL the liberal judges voted against legalizing medical marijuana, thus telling cancer patients to drop dead...

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Foxfyre wrote:

Has anybody else noted the wide gamut of opinion so far on this thread? And you can't lump the various opinions by the known ideology of the members posting either. I think we may have found a truly bipartisan or nonpartisan issue here.

in today's Boston Globe:

Quote:
The persecution of medical marijuana users is one example. Here's another: Under a congressional bill proposed by Republican Representative James Sensenbrenner of Wisconsin, if you are aware of any drug use or sale on a college campus or in a home with children and fail to report it within 24 hours, you will face a minimum two-year prison sentence.

this is how really bad stuff begins in a country. i doubt that this bill can pass as a standalone, but the way that bills get wrapped up together, it could make it through if it was attached to a bill for, let's say, funding for the new armored hummers needed in iraq.

one of the things that americans should demand, as a non-partisan issue, is that congress discontinue these kind of upside down deals when putting bills to a vote.

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McGentrix wrote:

I think the point was that ALL the liberal judges voted against legalizing medical marijuana, thus telling cancer patients to drop dead...

No, the columnist's point was a feeble attempt to make this into a simplistic, black-and-white, liberalism vs. conservatism issue. The presence of Scalia and Kennedy among the majority, however, belies the notion that this is purely a liberal or a conservative issue.

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Dtom writes
in today's Boston Globe:

Quote:

Quote:

Quote:
The persecution of medical marijuana users is one example. Here's another: Under a congressional bill proposed by Republican Representative James Sensenbrenner of Wisconsin, if you are aware of any drug use or sale on a college campus or in a home with children and fail to report it within 24 hours, you will face a minimum two-year prison sentence.

this is how really bad stuff begins in a country. i doubt that this bill can pass as a standalone, but the way that bills get wrapped up together, it could make it through if it was attached to a bill for, let's say, funding for the new armored hummers needed in iraq

.

I think that a constitutional amendment should be passed prohibiting bundling, and especially burying, unrelated issues into funding bills or any bills and all votes by every elected official should be on the record--no sneaky voice votes to hide your position on controversial issues. If every senator and congressman had to vote staight up or down on everything, we would see a lot less pork trucked out of Washington and we just might restore some integrity to the process. And it would nip in the bud a 'tattle tale bill' that requires laymen to make professional judgments that could destroy reputations or even livelihoods.

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Foxfyre wrote:

Dtom writes
in today's Boston Globe:

Quote:
Quote:

Quote:
The persecution of medical marijuana users is one example. Here's another: Under a congressional bill proposed by Republican Representative James Sensenbrenner of Wisconsin, if you are aware of any drug use or sale on a college campus or in a home with children and fail to report it within 24 hours, you will face a minimum two-year prison sentence.

this is how really bad stuff begins in a country. i doubt that this bill can pass as a standalone, but the way that bills get wrapped up together, it could make it through if it was attached to a bill for, let's say, funding for the new armored hummers needed in iraq
.

I think that a constitutional amendment should be passed prohibiting bundling, and especially burying, unrelated issues into funding bills or any bills and all votes by every elected official should be on the record--no sneaky voice votes to hide your position on controversial issues.

yep. one of the worst i've ever heard was how a bill relieving the taxes on tackle boxes got rolled into an unrelated and much more important bill. couldn't swear to it, but i think it was the first 87b supplemental. ya see how it was a shoe-in to pass, right ?

now here's the truly weird part. the tackle box was exactly like the box that the same company sells as a organizational box for screws, nuts & bolts, nails etc. in fact it is the same box with a different package. as i recall, the idea was that sportsman were unfairly taxed for buying a tackle box while construction and home owners were not taxed in the same way. or some such nonsense. i forget where it was but i keep thinking it was like idaho or missouri. one of those heartland states...

when they interviewed the senator, he was incredibly earnest about the importance of the issue.

yeah. as if... Laughing

edited for even worse than usual spelling and typing...

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Joe - justice Kennedy as you say is borderline, the other 4 are guaranteed liberals; could you please explain here Scalia's reasons for joining that unlikely crew? If you read the entire thread you know that I, for one, cannot understand Scalia's reasoning on that one. That would however make if 5 liberal-leaning justices plus 1 (Scalia) so your idea this is a conservative decision must surely be prima faciae wrong!

Thanks in advance.

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joefromchicago wrote:

McGentrix wrote:
I think the point was that ALL the liberal judges voted against legalizing medical marijuana, thus telling cancer patients to drop dead...

No, the columnist's point was a feeble attempt to make this into a simplistic, black-and-white, liberalism vs. conservatism issue. The presence of Scalia and Kennedy among the majority, however, belies the notion that this is purely a liberal or a conservative issue.

While I agree with you that this shouldn't be a partisan issue, why is it that all the liberal justices voted against it? Do none of them believe in federalism?

(one more!)

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HofT wrote:

Joe - justice Kennedy as you say is borderline, the other 4 are guaranteed liberals; could you please explain here Scalia's reasons for joining that unlikely crew? If you read the entire thread you know that I, for one, cannot understand Scalia's reasoning on that one. That would however make if 5 liberal-leaning justices plus 1 (Scalia) so your idea this is a conservative decision must surely be prima faciae wrong!

Thanks in advance.

I will have to read the opinions more closely. I'll get back to you with an answer.

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McGentrix wrote:

While I agree with you that this shouldn't be a partisan issue, why is it that all the liberal justices voted against it? Do none of them believe in federalism?

Sure, they believe in federalism. They just have a different notion of it from that of Scalia, Kennedy, O'Connor, and Rehnquist. Everybody, on the other hand, has a different notion of federalism from that of Thomas.

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joefromchicago wrote:

McGentrix wrote:
While I agree with you that this shouldn't be a partisan issue, why is it that all the liberal justices voted against it? Do none of them believe in federalism?

Sure, they believe in federalism. They just have a different notion of it from that of Scalia, Kennedy, O'Connor, and Rehnquist. Everybody, on the other hand, has a different notion of federalism from that of Thomas.

But the only “federalism” which is constitutionally authorized is that which is written into our Constitution and was succinctly described by Madison in Federalist Paper No. 45:

"The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation and foreign commerce. ... The powers reserved to the several States will extend to all the objects which in the ordinary course of affairs, concern the lives and liberties, and properties of the people, and the internal order, improvement and prosperity of the State."

In addition, this “federalism”, one of limited and defined powers agreed to and granted to Congress by the people, was intentionally guaranteed by the 9th and 10th Amendments to the Constitution of the united States.

Liberal public servants as well as conservative public servants have attempted to [and have] subjugated our constitutionally mandated "federalism" . . . each for their own personal reasons which are irrelevant to the meaning and purpose of federalism.

JWK

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JWK, Thanks for the education on "federalism." From what I've been reading about the current supreme court justices and how they came to their decision on the restriction of marijuana based on "interstate commerce," it seems to me they have overstepped their legal mandate. Since most 'legal' use of marijuana is home-grown for personal use, I don't see how the supremes can justify regulating marijuana use - for medical purposes.

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Not marijuana, but another over-ruling by the supremes.

From the NYT:

June 14, 2005
Supreme Court Rules for Texan on Death Row
By LINDA GREENHOUSE
WASHINGTON, June 13 - The Supreme Court overturned the 20-year-old murder conviction of a Texas death-row inmate on Monday on the ground that the jury selection had been infected by racial discrimination.

It was the court's second decision in three years on behalf of the inmate, Thomas Miller-El, who is black, and the justices' second rebuke of the federal appeals court that handled his case. The decision itself made no new law; instead, it reflected the judgment of the 6-to-3 majority that the lower courts' refusal to remedy a failure in the criminal justice system now required correction at the highest level.

Justice David H. Souter's majority opinion, noting that "the very integrity of the courts is jeopardized" by racial bias in jury selection, examined aspects of the selection process in unusual detail and concluded that the state's "attempt at a race-neutral rationalization" for what occurred "simply fails to explain what the prosecutors did."

When the evidence is "viewed cumulatively," Justice Souter said, "its direction is too powerful to conclude anything but discrimination." The case was the latest of several recent Supreme Court decisions to express concern about the quality of justice being meted out by the state courts in Texas and by the federal courts that oversee the cases when inmates raise questions of federal law.

In Mr. Miller-El's 1986 trial in the death of a clerk during a robbery at a Holiday Inn in Dallas in 1985, the prosecution used its peremptory strikes to remove 10 of 11 black potential jurors, providing explanations that the Supreme Court found "incredible." Under the writ of habeas corpus that the Supreme Court granted, Texas will now have to retry or release him.

In a dissenting opinion, Justice Clarence Thomas complained that the majority had permitted itself to be "swayed" by Mr. Miller-El's "charges of racism." He said that "on the basis of facts and law, rather than sentiments, Miller-El does not merit the writ."

Justice Thomas noted that the 1996 federal law defining the federal courts' jurisdiction to grant habeas corpus to state prison inmates required an inmate to show that the state court had based its decision on "an unreasonable determination of the facts in light of the evidence presented in the state court proceeding."

Mr. Miller-El "has not even come close to such a showing," Justice Thomas said. He was joined in his opinion by Chief Justice William H. Rehnquist and Justice Antonin Scalia.

Justice Souter's majority opinion was joined by Justices John Paul Stevens, Sandra Day O'Connor, Anthony M. Kennedy, Ruth Bader Ginsburg and Stephen G. Breyer.

Justice Breyer wrote a concurring opinion to urge the court to rule that peremptory jury challenges should no longer be permitted. Such challenges, which permit each side to remove jurors without explanation, "seem increasingly anomalous in our judicial system," Justice Breyer said. He added that despite the Supreme Court's effort of decades to eradicate bias from jury selection, "the use of race- and gender-based stereotypes in the jury-selection process seems better organized and more systematized than ever before."

The history of this case, Miller-El v. Dretke, No. 03-9659, paralleled the court's modern effort to deal with race and jury selection. Mr. Miller-El was tried, convicted and sentenced to death shortly before the Supreme Court made the rules more favorable for defendants seeking to attack as racially motivated the prosecution's use of peremptory challenges. That 1986 decision, Batson v. Kentucky, applied retroactively to Mr. Miller-El because his case was then still on appeal.

Under the Batson ruling, a prosecutor whose use of peremptory challenges raises an inference of discrimination has to provide an explanation, which the judge can either accept as "race neutral" or reject as a pretext for discrimination. The state trial court in Texas, reviewing the selection of Mr. Miller-El's jury on instruction from the Texas Court of Criminal Appeals, found the prosecutors' explanations "completely credible and sufficient." The state appeals court affirmed that finding in 1992.

Mr. Miller-El then turned to the federal courts, pressing his claim of racial discrimination by filing a petition for a writ of habeas corpus, which the federal district court in Dallas denied in 2000. The next year, the United States Court of Appeals for the Fifth Circuit, in New Orleans, ruled that he was not entitled to file an appeal.

That decision was overturned by the Supreme Court in 2003, over the solitary dissent of Justice Thomas. Writing for the majority in Miller-El v. Cockrell, Justice Kennedy said that while Congress, in tightening the standards for habeas corpus, had instructed federal courts to defer to the state courts, "deference does not by definition preclude relief." The evidence of discrimination was substantial enough to require the appeals court to give Mr. Miller-El a hearing, the justices said.

At that hearing, the Fifth Circuit adopted Justice Thomas's dissenting view of the case and found Mr. Miller-El not entitled to habeas corpus. In most cases, that would have been the end of the road; it is rare for the Supreme Court to give an inmate a second chance at an appeal.

But Seth P. Waxman, a former solicitor general who had been handling the case on a pro bono basis, told the justices that by ignoring the Supreme Court majority, the Fifth Circuit's decision "undermines this court's supervisory authority" and needed the court's attention once again. When Mr. Waxman argued the new appeal last December, he urged the court to "step back and look" at the evidence over all, which is what the majority did.

Justice Souter compared white and black jurors who had expressed similar views on the death penalty during initial questioning; the whites were retained and the blacks removed. The prosecution's reasons for the different treatment, he said, "are so far at odds with the evidence that pretext is the fair conclusion, indicating the very discrimination the explanations were meant to deny."

The court issued a second ruling on Monday on race and jury selection. The question in Johnson v. California, No. 04-6964, was how much evidence of possible discrimination must be presented to invoke the Batson decision's requirement of a race-neutral explanation.

The California Supreme Court had required evidence that discrimination was "more likely than not" the reason for the peremptory strike. But Justice Stevens, writing for the 8-to-1 majority on Monday, said that this standard was too onerous. It was sufficient to have "an inference" of discrimination at this initial stage, he said.

Justice Thomas was the lone dissenter.

In another criminal-law case, the court ruled unanimously that inmates facing placement in a "supermax" prison are entitled to due process to guard against mistakes. Reviewing Ohio's procedures for making such placements, including a hearing at which an inmate can testify, the court said in an opinion by Justice Kennedy that inmates' rights were adequately protected. The case was Wilkinson v. Austin, No. 04-495.

Finally, the court refused without comment to take up a challenge by Jose Padilla to his continued detention in a military brig in Charleston, S.C., as an enemy combatant. Lawyers for Mr. Padilla, a United States citizen arrested in Chicago and held since May 2002, had sought to bypass the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., which has scheduled a hearing for July 19.

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joefromchicago wrote:

Everybody, on the other hand, has a different notion of federalism from that of Thomas.

This would be consistent, of course, with my hypothesis that Thomas is the only one whose notion is right, while the other judges' notions are just different shades of "wrong". Razz

More seriously, I'm looking forward to your take on the opinions, which one you find the most persuasive, and why.

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HofT wrote:

Joe - justice Kennedy as you say is borderline, the other 4 are guaranteed liberals; could you please explain here Scalia's reasons for joining that unlikely crew? If you read the entire thread you know that I, for one, cannot understand Scalia's reasoning on that one.

The five-member majority said, in effect, that there was no difference between what Raich did in growing marijuana and what Roscoe Filburn did in growing wheat. So Gonzales v. Raich necessarily had the same outcome as Wickard v. Filburn. Scalia, in his concurrence, said that his position was "more nuanced" than that of the majority. He put more emphasis on congress's authority under the "necessary and proper" clause to enact legislation designed to regulate commerce. Ultimately, however, he pretty much came to the same conclusion as Justice Stevens: growing marijuana is just like growing wheat:

Not only is it impossible to distinguish "controlled substances manufactured and distributed intrastate" from "controlled substances manufactured and distributed interstate," but it hardly makes sense to speak in such terms. Drugs like marijuana are fungible commodities. As the Court explains, marijuana that is grown at home and possessed for personal use is never more than an instant from the interstate market--and this is so whether or not the possession is for medicinal use or lawful use under the laws of a particular State.Frankly, I'm not sure how Scalia's opinion is any more "nuanced" than the majority's opinion; Scalia's separate opinion, thus, may be more the result of Scalia's idiosyncratic temperment than of his unique viewpoint.

HofT wrote:

That would however make if 5 liberal-leaning justices plus 1 (Scalia) so your idea this is a conservative decision must surely be prima faciae wrong!

Calling Kennedy a "liberal" is really quite laughable, but then there are those who claim that anyone to the left of Tom DeLay is a liberal. In any event, my point was that calling this a "liberal" opinion, because it was supported by the four "liberals" on the supreme court, is about as valid as calling it a "conservative" opinion because Scalia also voted with the majority.

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Thomas wrote:

This would be consistent, of course, with my hypothesis that Thomas is the only one whose notion is right, while the other judges' notions are just different shades of "wrong". More seriously, I'm looking forward to your take on the opinions, which one you find the most persuasive, and why.

I posted this on another thread:

The problem, as I see it, is not with Wickard, it's with the commerce clause. "Commerce" is a rather elastic concept. If it simply means "trade," then I would agree that Wickard and Raich should have been decided differently. But then the constitution doesn't say "interstate trade," it says "interstate commerce." And "commerce," I would argue, has a broader meaning than merely "trade."

I think the supreme court in Wickard was correct in noting that purely local "commerce" can have interstate effects, and that congress's ability to regulate interstate commerce would be severely compromised if it could not reach such local activities. Roscoe Filburn argued that the extra 239 bushels of wheat that he produced on his farm went to feeding his family and his livestock, and thus would never have entered the market anyway. What he failed to note, however, was that those 239 bushels of wheat represented 239 bushels that he did not purchase in the market; multiplied many times over, the depressive effect on the interstate commerce in wheat would have been just as severe as if the wheat had been sold on the open market.

Imagine if the court had ruled otherwise in Wickard. Congress exercises its power to regulate interstate commerce in wheat, but it has no power to regulate local activities like Roscoe Filburn's production of wheat in excess of his quota as long as the excess is used intrastate. Since wheat is fungible, and the wheat under the quota is indistinguishable from the wheat exceeding the quota, all the other Filburns in the state would do likewise. The market would then be flooded with wheat in excess of the combined state quota, since every farmer would sell quota wheat and consume excess wheat, rather than being both a seller and consumer of quota wheat. In other words, farmers would no longer compete with other wheat purchasers in the market; the resulting decline in demand would depress prices, which would, in turn, undermine the national quota system.

Now, for the diehard libertarian, this is an excellent result. I don't plan to argue in favor of price controls or quotas on commodities, but I do think that the result that I've outlined above is inconsistent with the notion of a single, uniform interstate market envisioned by the authors of the constitution. As such, congress must have some ability to regulate local commercial activities that have a significant impact on interstate commerce; otherwise, its power is, in large part, purely illusory.

The surprising thing about Raich, as one commentator has noted, is not that the supreme court upheld Wickard, it's that Rehnquist and O'Connor, who have supported Wickard in the past, now believe that congress has less authority to regulate marijuana than it has to regulate wheat.

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joefromchicago wrote:

The five-member majority said, in effect, that there was no difference between what Raich did in growing marijuana and what Roscoe Filburn did in growing wheat. So Gonzales v. Raich necessarily had the same outcome as Wickard v. Filburn.

I don't understand the "necessarily". In Wickard, the tradeoff was between the federal government's powers to regulate commerce against Wickard's right to grow as much wheat as he wants. In Raich, the tradeoff was between the federal government's power to regulate marijuana production, Raich's right to grow weed, and California's power to regulate its own marijuana production. I can see that the issue is the same from the US's point of view, but the other side of the tradeoff is different, so why would the outcomes "necessarily" be the same?

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Thomas Sowell agrees with you, Thomas. I love Sowell's commentary that generally cuts through all the sh** and gets right to the point.

June 14, 2005
The High Cost of Nuances
By Thomas Sowell

The Supreme Court's recent decision saying that the federal government can prosecute those using marijuana for medical purposes, even when state laws permit such use, has been seen by many as an issue of being for or against marijuana. But the real significance of this decision has little to do with marijuana and everything to do with the kind of government that we, our children, and our children's children are going to live under.

The 10th Amendment to the Constitution says that all powers not granted to the federal government belong to the states or to the people.

Those who wrote the Constitution clearly understood that power is dangerous and needs to be limited by being separated -- separated not only into the three branches of the national government but also separated as between the whole national government, on the one hand, and the states and the people on the other.

Too many people today judge court decisions by whether the court is "for" or "against" this or that policy. It is not the court's job to be for or against any policy but to apply the law.

The question before the Supreme Court was not whether allowing the medicinal use of marijuana was a good policy or a bad policy. The legal question was whether Congress had the authority under the Constitution to regulate something that happened entirely within the boundaries of a given state.

For decades, judges have allowed the federal government to expand its powers by saying that it was authorized by the Constitution to regulate "interstate commerce." But how can something that happens entirely within the borders of one state be called "interstate commerce"?

Back in 1942, the Supreme Court authorized the vastly expanded powers of the federal government under Franklin D. Roosevelt's administration by declaring that a man who grew food for himself on his own land was somehow "affecting" prices of goods in interstate commerce and so the federal government had a right to regulate him.

Stretching and straining the law this way means that anything the federal government wants to do can be given the magic label "interstate commerce" -- and the limits on federal power under the 10th Amendment vanish into thin air.

Judicial activists love to believe that they can apply the law in a "nuanced" way, allowing the federal government to regulate some activities that do not cross state lines but not others. The problem is that Justice Sandra Day O'Connor's nuances are different from Justice Antonin Scalia's nuances -- not only in the medical marijuana case but in numerous other cases.

Courts that go in for nuanced applications of the law can produce a lot of 5 to 4 decisions, with different coalitions of Justices voting for and against different parts of the same decision.

A much bigger and more fundamental problem is that millions of ordinary citizens, without legal training, have a hard time figuring out when they are or are not breaking the law. Nuanced courts, instead of drawing a line in the sand, spread a lot of fog across the landscape.

Justice Clarence Thomas cut through that fog in his dissent when he said that the people involved in this case "use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana."

Instead of going in for fashionable "nuance" talk, Justice Thomas drew a line in the sand: "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."

In short, the kinds of limitations on the power of the national government created by the Constitution are being nuanced out of existence by the courts.

Ironically, this decision was announced during the same week when Janice Rogers Brown was confirmed to the Circuit Court of Appeals. One of the complaints against her was that she had criticized the 1942 decision expanding the meaning of "interstate commerce." In other words, her position on this was the same as that of Clarence Thomas -- and both are anathema to liberals.
http://www.realclearpolitics.com/Commentary/com-6_14_05_TS.html

Copyright 2005 Creators Syndicate

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