Posted on 06/08/2005 5:18:12 AM PDT by OESY
We've never supported drug legalization, even in its "medical marijuana" drag. Still, we can't help but feel uneasy about the Supreme Court's 6-3 decision Monday in Gonzales v. Raich, which held that the federal government can trump state laws permitting the possession and cultivation of small quantities of cannabis for purely personal use.
As Justice Clarence Thomas wrote in his dissent: "If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything, and the federal government is no longer one of limited and enumerated powers." By "enumerated powers," Justice Thomas means the idea that the federal government can undertake only such activities as the Constitution explicitly permits.
Hence the 10th Amendment, which reserves those powers not listed--such as criminal law enforcement--to the states. President James Madison, the Constitution's primary author, famously vetoed a highway bill in 1817: "The legislative powers vested in Congress are specified and enumerated in the eighth section of the first article of the Constitution, and it does not appear that the power proposed to be exercised by the bill is among the enumerated powers...."
We didn't support the California medical marijuana ballot initiative at issue in Raich. But a clear majority of Californians did. Just because an issue is "important" doesn't mean it should be a matter for federal law....
Such stakes explain why many conservative legal scholars such as former Reagan Assistant Attorney General Douglas Kmiec and former Bush Solicitor General Charles Fried urged the court to recognize that federal powers shouldn't extend this far. But Justices Scalia and Anthony Kennedy, who voted to limit federal powers in Lopez and Morrison, appear to have retreated from putting any restraint on Commerce Clause-based regulation. This was not a good decision for anyone who believes there are Constitutional limits on the federal leviathan.
(Excerpt) Read more at opinionjournal.com ...
Clarence Thomas for Chief Justice!
This decision will forever taint Scalia's reputation. This is also the Thomas's finest hour.
Did Scalia have a brain fart on this one? I don't get it. This ruling was outrageous in it's reach. What has become of federalism?
If anyone can find any activity that isn't "economic" under this ruling, and therefore falls under the commerce clause, I'll consider them a total genius.
Bending down, picking up a piece of gravel and handing that piece of gravel to another person is now subject to the Commerce Clause and Federal Regulation.
Gifting a tomato from your garden to a neighbor, now subject to the Commerce Clause and Federal Regulation.
etc., etc.,
I'm also concerned about Scalia's appearant about face on states' rights. I think that it's fair to say that the 10th amendment is the least understood and most often ignored of the Bill of Rights. Having said that, I'm still confused as to why the DEA simply will not reschedule Marijuana to Schedule II (i.e. place it on the same level as cocaine, meaning that a doctor can prescribe it under certain circumstances). Although there will more than likely be some unscroupulous doctors out there who will over-prescribe dope, the mechanisms are already in place to track prescriptions and abuse thereof, case in point the recent rash of Oxycontin prescription abuse.
The way I read this, eating the tomato yourself is covered. Insane.
Gotta love his reasoning. To paraphrase, "Just cause it ain't interstate commerce, doesn't mean it ain't interstate commerce".
Good point. All I can say is, ?
Thanks for posting. Interesting discussion bump.
"This decision will forever taint Scalia's reputation. This is also the Thomas's finest hour."
Ditto to that. I can't believe Scalia was willing to mangle the constitution just to reach the result he wanted in this one case. You stick with the constitution whether you like the result or not. Otherwise, to stay with the marijuana example, if the feds legalize marijuana, perhaps the federal courts will strike down all state ANTI-marijuana laws as violative of the commerce clause.
The usurpation of state sovereignty continues with only three justices opposed. Bush nominees to the S.C. MUST be willing to enforce the 9th and 10th amendments.
"What has become of federalism?"
Answer: we have become enamored with 'contracts', mediated by law, instead of "Covenants" mediated by God.
In short, the secular humanists are winning, because most folks don't know the latin connection to the word federal which connects to the word covenant.
Most folks, instead are watching either PBS, NASCAR, or Porn.
With so many liberals paying attention to this case, I hope that Thomas leading the fight for their rights might do us some good in the long run over getting the left to understand that strict constructionism is not just for conservatives. This case is potentially the weapon that takes the edge off of the radical left, just a tad, over judicial picks.
Don't count on it. Not even a 'tad'. The left are ruthless.
It has been for a long time. Look up a decision called Wickard v. Filburn, a 1940s era case. A Carolina farmer who raised crops on his own farm with Carolina seed to feed to his livestock that he ate himself was subject to price controls justified under the Commerce Clause. IIRC, The rationale was that him doing that "affected" interstate commerce because if he didn't do it he would potherwise be forced to buy feed that "might" have traveled in interstate commerce. Unbelievable. I thought the Court had been retreating from that kind of stuff, but apprently not.
That's my take too. I've been trying to point out to people how utterly horrid this ruling is. It's really difficult to get people to forget the "pot" aspect of this and think rationally.
Justice Thomas' first paragraph in his dissent boils it all down to the bare essence. Kudos to the clerk who wrote it.
I, too, have been using tomatoes as an example. Strange because I hate the things. Yuck! :-)
ping
"The way I read this, eating the tomato yourself is covered."
Exactly!
You can't grow wheat (or tomatoes) for your own use, to use the seeds, because that will affect someone who sells seeds somewhere else.
Growing your own pot cuts down on the Interstate Commerce because you won't buy it from Mississippi if you can grow it in Kentucky. Isn't that what was said, more or less?
actually I see this more as a medical regulation than a marajuana legalization.
A state can not legalize a drug that the FDA has not allowed.
This was the same situation.
If they had OUTRIGHT legalized the pot then they might have had a stronger case.
Either way pot should not be legalized.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.