For the Benefit of Supernatural Rabbit Scribe

Okay, I'll admit it. I'm just not very worried about the result in the recent Supreme Court decision on medicinal marijuana. The case is Gonzales v. Raich, 2005 WL 1321358 (U.S. 2005), for those of you with Westlaw or LexisNexis or something.

Let's start with first principles. The main issue in this case is not marijauna use, but federal power (although it's possible that Scalia signed the majority opinion just because of the marijuana aspect - I honestly haven't read anything other than the cnn.com summary). And the official SobekPundit rule of federal power is this: leave it up to the states unless there is a very important reason not to. Prominent examples include military, foreign policy, and international trade. In every case, the question is, should the federal government be involved in this?

Regardless of the answer, I need to point out for Scribe's benefit that the official SobekPundit rule is not very influential on the Supreme Court. The Interstate Commerce Clause, if I recall correctly, is governed by the "substantially affects" test. And yes, Scribe is right to point out that if the only test is "no more than an instant from the interstate market," there really isn't much (if anything) that doesn't qualify. But Scalia's articulation, however horrifying, is functionally no different from what we've had for the past 70 years or so. "Substantially affects" covers almost everything. About the only thing I can think of, off the top of my head, that doesn't substantially affect commerce, is a high school student carrying a gun at a high school in the middle of Texas. See United States v. Lopez, 514 U.S. 549 (1995). And even then, four out of five thought Lopez was engaged in interstate commerce when he brought a gun to school.

So in other words, while I sympathize with Scribe's shock at the broad liberties taken by Congress and the Court, it can hardly be said that Raich represents a radical expansion of federal power or some new encroachment by the government - it's the same old encroachment we've been living with.

You may be interested to know who voted how in Lopez and Raich, for comparison purposes, because it's the same set of nine on the bench.

Justices who think carrying a gun to school is interstate commerce:
Souter
Stevens
Ginsburg
Breyer

Justices who don't:
Rehnquist (wrote the majority opinion)
Scalia
Thomas
O'Connor
Kennedy

Justices who think growing marijuana for personal use without leaving the state is interstate commerce:
Stevens (wrote the majority opinion)
Scalia
Souter
Ginsburg
Breyer
Kennedy

Justices who don't:
Rehnquist
O'Connor
Thomas

Con Law is wacky that way.

Okay, with all that out of the way, I'll get to the other question about the case, the one that the case isn't about, but which it's really about. Should Congress be able to use the federal police power to prevent the personal production and use of marijuana for medicinal purposes?

Actually, let me drop that last clause, the part about medicinal purposes, because I honestly think it clouds the issue. By injecting emotional stories of personal suffering into the debate, we're really shifting the discussion from "Does Congress have the power to..." to "Should Congress..." And clearly they are separate questions, so let me stick with the first one, because we're dealing with a Supreme Court opinion, and they are only supposed to (ha ha!) review the constitutionality of the laws, not the wisdom of the laws.

So, should Congress be able to use the federal police power to prevent the personal production and use of marijuana? No, probably not. The Constitution says, "The Congress shall have Power ... to regulate Commerce with Foreign Nations, and among the several States..." (Art. 1, sec. 8, para. 3). The goals served by this clause are obvious to me in light of my European Union courses. If individual states can set up protectionist tarrifs and barriers to protect local business, the economy of the whole is hurt. It's easier to dominate a market, stifle competition, limit growth, and discourage innovation when you can use a combination of monopoly and government power to be the 900-pound gorilla. If a federal power can prevent interstate balkanization, the economy of the whole is more likely to flourish.

But of course with locally produced and consumed marijuana, that goal is quite moot. You can't move weed from one state to another anyway, so there's no competition or economy concern.

And as far as federal concern for the prevention of the international drug trade, which the federal government has clear authority to address, that concern is in no way addressed by criminalizing intrastate production and consumption (indeed, it may be an ironic and beneficial side-effect if intra-state growth lowers street prices to the point where international producers can no longer sell their wares on the streets of California).

As a personal matter, I doubt I would have voted for a state law to legalize medicinal marijuana. But I also would accept the results of the vote regardless of my personal views, and I don't favor using federal power to overturn duly enacted state laws. If the citizens of California (or any other state) want to use the ballot box to their own detriment, they have that right.

Conclusion
Under existing federal jurisprudence, there's simply nothing shocking or noteworthy about Gonzales v. Raich. But that case doesn't pass the SobekPundit test.