It’s a Crazy Mixed up World…Gonzales v. Raich

The medical marijuana case handed down yesterday is politically fascinating for a number of reasons...

You have the entire left leaning side of the Supreme Court bench crushing the dreams of the lefty drug legalization crowd joined by moderate Kennedy and conservative Scalia departing from the rest of his conservative collegues in joining the majority opinion (and who write a concurring opinion).

You also have none other than conservative icon Clarence Thomas supporting the right of people to “pass the duche” (for purely medical purposes of course) writing his own dissent and also joining O’Connor and Rehnquist in dissent.

Why this topsy turvy decision, with liberal justices pulling the bong out of the hands of the medically ill, and most of the conservative justices (save Scalia) arguing for a hashish heaven in California?

In essence you have the policy issue and the Constitutional issue moving at cross currents and creating some interesting results. You have several important issues layered upon one another….

1. First, you have the obvious policy issue of whether or not people should be allowed to use marijuana for medical purposes. Liberal left wingers and conservative libertarians are allies on this issue.
2. Second, you have the policy issue of what role the Federal government should play in the drug war and whether the war on drugs is damaged by states passing their own laws that contradict federal law on this issue.
3. Third, you have the larger Constitutional issue of national governmental power and whether or not the Commerce power of Congress extends to the regulation of the economy (in this case Marijuana).

While I haven’t as yet the whole 79 page decision, what I have skimmed shows that the Court was at least trying to step beyond the policy issue and tackle the deeper Constitutional issues. Witness the following from the majority opinion (remember this is the all the liberal judges Stevens, Breyer, Ginsburg, Souter, joined by Kennedy and Scalia):

“The case is made difficult by respondents’ strong arguments that they will suffer irreparable harm because, despite a congressional finding to the contrary, marijuana does have valid therapeutic purposes. The question before us, however, is not whether it is wise to enforce the statute in these circumstances; rather, it is whether Congress’ power to regulate interstate markets for medicinal substances encompasses the portions of those markets that are supplied with drugs produced and consumed locally.”

Refreshing language from the Court that brought us Lawrence v. Texas, Roper v. Simmons and other great hits, where the court seems preoccupied with their vision of justice and not the Constitutionality of the case before them. Here the Court says that no matter how much they sympathize with those wanting to use medical marijuana, they cannot allow California and other states to violate the will of Congress and Federal law.

So why are the left leaning justices acting as the tools of the “evil”
drug enforcement arm of the “feds?”

This is due to the stakes. For left leaning justices, the very foundation of National governmental power is at stake in these types of cases. The “Commerce Clause” has furnished the authority for Congress to erect the entire Federal regulatory state. If the liberal justices on the Court are not about to undue the authority of Congress to regulate pretty much whatever it wants just to provide pot to ailing cancer patients. The stakes are just too high.

In terms of precedent the case seems very straight forward. The majority relied on well established precedent namely Wickard v. Filburn 1942, which was vitually identical to this case if you substituted the word “majrijuana” for the word “wheat.” The dissent relied upon U.S. v Lopez and U.S. v. Morrison. However, in Lopez (I haven’t read Morrison) the Court, while placing limits on Congressional commerce power, explicitly did not overrule its Wickard precedent.

At the heart of all of this is the fact that the Constitution was altered during the New Deal era. However, this alteration was not recorded in the Constituitonal Text. Congressional power to “To regulate commerce with foreign nations, and among the several states, and with the Indian tribes” was altered. The Supreme Court decided, with pressure from FDR and Congress to begin interpreting this phrase as if it read, “Congress has the power to regulate the economy of the United States.”

Over 70 years of precedent and dozens of Federal agencies, and probably millions of lines of federal regulations have been predicated upon this alteration to the Constitution. Now if the American people wanted Congress to wield this power then they could have amended the Constitution via Article V and added that power to Congress legitimately. While there would still be plenty of court cases to be interpreted on these issues, at least the text of the Constitution would not be at obvious variance with reality.

James Madison argued that at some point established precedents gain a legitimacy over time and should not be overturned. My guess is that the commerce clause jurisprudence falls into this category. However, the cognitive dissonance that results from such muddled jurisprudence that increasingly does not square with the text of the Constitution should be example “A” of why it is best to secure alterations to the Constitution by established means and not with a wink and a knod to the established means of amending the Constitutional text…