The US Supreme Court ruled, on June 6, 2005, that no State is permitted to allow doctors to prescribe and control the use of marijuana for certain limited medical reasons, and that no State is permitted to allow patients to use marijuana for medical needs under state-controlled conditions and circumstances. The ruling struck down, in particular, the democratically passed law in California permitting the use of medical marijuana under a doctors orders and the States supervision, as well as the democratically passed laws of several other states that also allowed marijuana to be controlled and regulated for medicinal purposes. Is this judicial activism, or is that the wrong question?
As with many court decisions, the problems most people are faced with is that trying to figure out how judges reach their decrees on things like the Commerce Clause is a real yawner, and also the fact that most media outlets dont even bother to actually read multi-page court opinions and report on the quality of the legal reasoning. Thats a shame, because if any recent Supreme Court case ought to grab the attention of libertarians, this is the one. Simply stated, its not really about the medical use of marijuana, no matter how closely regulated by local authorities that use might be. It is instead about the fact that the Supreme Court has come down on the side of federal regulation of almost any possible human activity, and gives little respect (and indeed, very little ink) to the 10th Amendment.
The Supreme Courts medical marijuana decision in Gonzales v. Raich strikes down the laws of several States, passed either through voter referenda or by elected representatives, that, until the justices spoke, allowed the medical use of marijuana under controlled circumstances. But this case is not about whether or not the Supreme Court justices really care about whether or not Angel McClary Raich (one of the patients in the case) is prescribed medical marijuana; instead, the case is about the scope of the power of the federal government.
Do the Supreme Court justices really care about medical marijuana use in individual cases? No, I do not think that is the case. Instead, it is all about how far the Commerce Clause, written into the document meant to a Constitution meant to limit the power of government, allows the federal government to intrude into purely State and personal matters.
Consider what was the California medical marijuana law. If the purpose of such a law is not to allow recreational use of the drug, but instead to allow use only for certain bona fide medical needs, prescribed by licensed doctors and regulated by law enforcement, then one of two things must be true: either the law as written will be followed, or it will not be followed. If the law is abused by those seeking a loophole for recreational drug use, then the law will either be enforced or it will not be enforced. It seems to your author, who happens to be a social conservative, that such a situation is no different from a ban on all use, including legitimate medical use. Either the law will be followed, or it will not, and if it is followed and enforced in the case of medical use, then the nation is in little danger of horrible social consequences.
But lets take the argument between social conservatives and social libertarians out of the equation entirely by considering the following hypothetical: what if this case was not about marijuana at all, but instead the Court was discussing whether or not you (lets pretend youre really poor) may be permitted to grow wheat on your own land in order to make bread to feed yourself. The seeds and the wheat never cross a state line indeed it never leaves your property at all -- and is only used by you, for a legally permissible purpose (that is, to eat). Does the Commerce Clause of the US Constitution allow the federal government to criminalize your wheat-eating ways? Why, yes it does, the Supreme Court says. The Courts decision on medical marijuana cites often an earlier case from 1942 called Wickard v. Filburn. In that case a farmer grew wheat on his own land and with his own hands, and he and his family never did anything with that wheat except to use it as food. The Supreme Court in that case (utilizing bizarre economic theories) decided that Congress could prohibit Mr. Wickard from growing his wheat, because that behavior, even though confined completely to his own land, was part of commerce between the states.
For your information, the Commerce Clause (Article One, Section 8 of the Constitution) says that Congress has the power to make all Laws which shall be necessary and proper....to regulate Commerce with foreign Nations and among the several States. Against that backdrop, the 10th Amendment says: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. When you read those two portions of our founding document together, it would seem logical to resolve disputes over what constitutes interstate commerce in favor of the clause that says that what the Constitution doesnt specifically allow the federal government to regulate, the States and The People are free to decide for themselves. It seems that the 10th Amendment meant little to the Supreme Court in this case when it stated That the regulation ensnares some purely intrastate activity is of no moment. Elsewhere in the marijuana case, the Court showed its contempt for dissenters when it said It is beyond peradventure (doubt) that federal power over commerce is superior to that of the States to provide for the welfare or necessities of their inhabitants, however legitimate or dire those necessities may be. I suggest that it takes a very shallow view of the 10th Amendment for this Court to make such a sweeping statement of raw federal power for its own sake.
Ive been asked me if this is a case of judicial activism. The short answer is no, but I suggest it is the wrong question. It is not judicial activism in the sense that the Court followed its own earlier decisions which have the effect of granting more and more power, with each decision, to the federal government to the detriment of individual citizens and the States. In that sense, the Supreme Court is consistent. In another sense, it could be said that the Court is activist in that it ignores the plain meaning of the 10th Amendment in order to grant previously unforeseen powers to the government under the Commerce Clause. Either way, it is the wrong question. What we should really ask, instead of is this judicial activism? is whether or not the decision is a quality decision, that is, does it really make sense in the framework of the Constitution. Having read the entire decision several times in the past week, your author respectfully submits that it is not a well-reasoned opinion. Instead, it starts with the premise that there is no aspect of life that the federal government cannot regulate, and then works backwards.
As long as citizens of every political persuasion are content to allow the judges to have the final word on all policy decisions, sooner or later they will get around to taking away your voice on some issue that you care about. That is why this case should be a wakeup call to libertarians on how well the most powerful branch of our government is functioning.
As with many court decisions, the problems most people are faced with is that trying to figure out how judges reach their decrees on things like the Commerce Clause is a real yawner, and also the fact that most media outlets dont even bother to actually read multi-page court opinions and report on the quality of the legal reasoning. Thats a shame, because if any recent Supreme Court case ought to grab the attention of libertarians, this is the one. Simply stated, its not really about the medical use of marijuana, no matter how closely regulated by local authorities that use might be. It is instead about the fact that the Supreme Court has come down on the side of federal regulation of almost any possible human activity, and gives little respect (and indeed, very little ink) to the 10th Amendment.
The Supreme Courts medical marijuana decision in Gonzales v. Raich strikes down the laws of several States, passed either through voter referenda or by elected representatives, that, until the justices spoke, allowed the medical use of marijuana under controlled circumstances. But this case is not about whether or not the Supreme Court justices really care about whether or not Angel McClary Raich (one of the patients in the case) is prescribed medical marijuana; instead, the case is about the scope of the power of the federal government.
Do the Supreme Court justices really care about medical marijuana use in individual cases? No, I do not think that is the case. Instead, it is all about how far the Commerce Clause, written into the document meant to a Constitution meant to limit the power of government, allows the federal government to intrude into purely State and personal matters.
Consider what was the California medical marijuana law. If the purpose of such a law is not to allow recreational use of the drug, but instead to allow use only for certain bona fide medical needs, prescribed by licensed doctors and regulated by law enforcement, then one of two things must be true: either the law as written will be followed, or it will not be followed. If the law is abused by those seeking a loophole for recreational drug use, then the law will either be enforced or it will not be enforced. It seems to your author, who happens to be a social conservative, that such a situation is no different from a ban on all use, including legitimate medical use. Either the law will be followed, or it will not, and if it is followed and enforced in the case of medical use, then the nation is in little danger of horrible social consequences.
But lets take the argument between social conservatives and social libertarians out of the equation entirely by considering the following hypothetical: what if this case was not about marijuana at all, but instead the Court was discussing whether or not you (lets pretend youre really poor) may be permitted to grow wheat on your own land in order to make bread to feed yourself. The seeds and the wheat never cross a state line indeed it never leaves your property at all -- and is only used by you, for a legally permissible purpose (that is, to eat). Does the Commerce Clause of the US Constitution allow the federal government to criminalize your wheat-eating ways? Why, yes it does, the Supreme Court says. The Courts decision on medical marijuana cites often an earlier case from 1942 called Wickard v. Filburn. In that case a farmer grew wheat on his own land and with his own hands, and he and his family never did anything with that wheat except to use it as food. The Supreme Court in that case (utilizing bizarre economic theories) decided that Congress could prohibit Mr. Wickard from growing his wheat, because that behavior, even though confined completely to his own land, was part of commerce between the states.
For your information, the Commerce Clause (Article One, Section 8 of the Constitution) says that Congress has the power to make all Laws which shall be necessary and proper....to regulate Commerce with foreign Nations and among the several States. Against that backdrop, the 10th Amendment says: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. When you read those two portions of our founding document together, it would seem logical to resolve disputes over what constitutes interstate commerce in favor of the clause that says that what the Constitution doesnt specifically allow the federal government to regulate, the States and The People are free to decide for themselves. It seems that the 10th Amendment meant little to the Supreme Court in this case when it stated That the regulation ensnares some purely intrastate activity is of no moment. Elsewhere in the marijuana case, the Court showed its contempt for dissenters when it said It is beyond peradventure (doubt) that federal power over commerce is superior to that of the States to provide for the welfare or necessities of their inhabitants, however legitimate or dire those necessities may be. I suggest that it takes a very shallow view of the 10th Amendment for this Court to make such a sweeping statement of raw federal power for its own sake.
Ive been asked me if this is a case of judicial activism. The short answer is no, but I suggest it is the wrong question. It is not judicial activism in the sense that the Court followed its own earlier decisions which have the effect of granting more and more power, with each decision, to the federal government to the detriment of individual citizens and the States. In that sense, the Supreme Court is consistent. In another sense, it could be said that the Court is activist in that it ignores the plain meaning of the 10th Amendment in order to grant previously unforeseen powers to the government under the Commerce Clause. Either way, it is the wrong question. What we should really ask, instead of is this judicial activism? is whether or not the decision is a quality decision, that is, does it really make sense in the framework of the Constitution. Having read the entire decision several times in the past week, your author respectfully submits that it is not a well-reasoned opinion. Instead, it starts with the premise that there is no aspect of life that the federal government cannot regulate, and then works backwards.
As long as citizens of every political persuasion are content to allow the judges to have the final word on all policy decisions, sooner or later they will get around to taking away your voice on some issue that you care about. That is why this case should be a wakeup call to libertarians on how well the most powerful branch of our government is functioning.
