Wednesday, June 08, 2005

Is it really about the pot?

Last night, my bride was reading my blog. "You're talking an awful lot about medicinal marijuana," she said.

"Yup," thought I.

But it's not about the pot. Really. Here's the Washington Post's take on it; they seem to agree it's not about the pot, but they say I have it all wrong.
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.
Point taken. It's not about the pot. Sometimes I wish it was.

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