Medical marijuana: Supreme Court gets another one wrong
see: Court Rules Against Pot for Sick People (AP, 6/6/05)
http://news.yahoo.com/s/ap/20050606/ap_on_go_su_co/scotus_medical_marijuana_13
In yet another mistaken decision, the Supreme Court ruled 6-3 that the Federal Government can continue to abuse the Commerce Clause to regulate medical marijuana, overriding states’ laws allowing such use. The Feds can prosecute someone for using marijuana in a way which is specified as legal by state law.
The decision in Gonzales v. Raich is not only a defeat for Federalism (states’ rights) but for logic. The marijuana which the plaintiff was using was home-grown and not purchased from or sold to anyone. It was clearly not involved with any interstate commerce. Yet the court stuck with its insane methodology from decades past, ruling that the use of a product that is involved in interstate commerce anywhere must then always fall under the Commerce Clause.
The majority said that use of home-grown marijuana would effect supply and demand in the national market for the drug. It's truly an outrageous basis for a Supreme Court ruling and an open invitation to Congress to start regulating anything it wants to. Few things put our liberty and property rights at greater risk than this continuing misuse of the Commerce Clause.
It’s rather like arguing that the Feds should be able to prosecute someone for legally driving a car or legally owning a gun because someone else used a car or a gun in a Federal crime.
While I expect big government decisions from Justices Breyer, Ginsburg and the exceptionally disappointing Souter, it was particularly distressing to see Justice Scalia going along with the majority opinion in this case. The dissents were by Justices O’Connor, Rehnquist, and Thomas (who split from his role-model, Scalia, for the second time in as many weeks. In the interstate wine shipment case, Scalia ruled for Federalism and logic and Thomas against it.)
The Supreme Court continues its unfortunate and dangerous trend of “passive activism” by upholding laws which are clearly unconstitutional. On the rare occasion that they get it right lately (such as with interstate wine shipments) the vote is too close for comfort. The biggest case before the Court now, in my opinion, is Kelo v. New London, a major test of eminent domain. The Supremes’ recent performances give me little reason for optimism. It seems that liberty continues to recede and property rights continue to weaken as respect for the Constitution fades.
[As a general matter, our "war on drugs" is absolutely out of control, filling our jails with minor non-violent offenders and adding to the profit which major drug dealers earn and thus the violence they'd be willing to use to protect their business. It's time to decriminalize marijuana, and I say this as someone who has never tried marijuana or any other illegal drug.]
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Yours truly
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06/06/05 @ 06:11:08 pm
Wow! What kind of covert flunkey are you? You know perfectly well that the Raich respondents never argued that their facts were interstate commerce. So why are you saying they did?
The Raich lawyers--being stupid--simply argued that the Court should raise the level of scrutiny for the commerce clause. Any idiot could have told them the Court would not do that. Likewise, the moron lawyers in Kelo argue that the Court should raise the level of scrutiny for eminent domain. The Court isn't going to do that.
There is only one way to get the Court to raise the level of scrutiny for facts: that is, to argue that they are analogous to facts already in the Constitution to which a high level of scrutiny is accorded. In short, you have to argue that medical care (Raich) or housing (Kelo) are Constitutionally identical to protected speech, or freedom from involuntary servitude. That is the ONLY way it can be done, and the article below shows you exactly what tests you must meet in order to convince the Court. By the way, I contacted counsel in both cases, telling them they would lose unless they changed their argument. But both proved to be so invincibly stupid that they would rather pursue their losing arguments than win their cases for their clients.
The Raich lawyers now have a chance to present the correct argument in a petition for rehearing. But they're such cowards--as well as jackasses--that they won't do it.
Cheers,
John Ryskamp
Ryskamp, John Henry, "Kelo v. New London: Deciding the First Case Under the New Bill of Rights" . http://ssrn.com/abstract=562521
06/07/05 @ 05:06:12 am
The court checked out of reviewing commerce clauses effects a long time ago.
This was wrong, but this decision is consistent with established doctrine. The doctrine should be changed but the impact would be devastating.
Think about much that was passed on that basis. Start from new deal.
Heart of Atlanta Motel and Katzenbach v. McClung should be reversed. The supreme court SHOULD review what congress does and determine whether they have the power to do it -- check and balances and all that. But when that happens...the repercussions will be truly violent.
Minor nit...your use of the word "federalist" is incorrect. Justice Marshall, one of the greatest "federalist" jurists of all times would have supported an interpretation heightening power to the feds and away from state sovereings.