420
Founder
Reviled by "progressive" observers as an "affirmative action" appointee ( does that mean "unqualified"? ) and the weakest member of the Supreme Court, Justice Clarence Thomas wrote a dissenting opinion in last week's medical marijuana case that should jolt fair-minded critics back to reality.
As many as 11 states have passed laws allowing doctors to prescribe marijuana for pain control in patients suffering from debilitating illnesses. But Congress claimed that its power to regulate interstate commerce also permitted it to prohibit the local cultivation and use of the drug for such patients.
By a vote of 6-3 in Gonzales vs. Raich, the Supreme Court agreed that Congress has such power and that its judgment must prevail. The reason is that the 1942 Wickard vs. Filburn decision allowing Congress to regulate the wheat grown by a farmer for use on his own farm is binding precedent.
Not so, Thomas argued.
Along with all eight of his colleagues, Thomas agreed that Wickard does confirm Congress' plenary power over our country's commercial activity. But he, like fellow dissenters Sandra O'Connor and William Rehnquist, thought that Congress must not be allowed to regulate non-economic activities simply because they might have economic implications.
To rule otherwise, they argued, "is tantamount to removing meaningful limits" on the power of the national government.
In our constitutional system, states enjoy a general "police power" to legislate for the health and safety of the population. But our national government may exercise only "enumerated powers" that are spelled out in the Constitution's text.
Civil libertarians, especially, should keep this fundamental distinction in mind. It is fine to defend individual rights. But equally important is the need to limit the national government to its constitutional powers.
Thomas is an old-fashioned jurist who first looks to the original precedent -- the Constitution's text -- and only then to judicial interpretations of that text.
So in the Raich case, he began his analysis of Congress' power to regulate interstate commerce by noting that Raich's locally grown marijuana never crossed state lines and had no demonstrable effect on interstate commerce.
Only then did Thomas turn to judicial precedents. Appropriately, he looked to the first landmark decision interpreting Congress' limited power to regulate the nation's economic life. McCulloch vs. Maryland ( 1819 ) was written by Chief Justice John Marshall, arguably the most formidable legal mind in the court's history.
Marshall wrote that only legislative acts "plainly adapted" to a specifically enumerated constitutional power can pass constitutional muster. That requires, Thomas wrote 186 years later, that if Congress may regulate local cultivation of marijuana, it must show that its regulation bears an "obvious, simple, and direct relation" to commerce that crosses state lines. Congress utterly failed to do that, Thomas added.
In the medical use case, Raich did not challenge Congress' power to regulate drug trafficking. She merely challenged Congress' Controlled Substances Act ( CSA ) as applied to herself.
Thomas argued that Raich's locally grown marijuana might be "regulable" if she were merely a member of "a large class ( local growers and users of marijuana )." But she also belongs "to a distinct and separable subclass ( local growers and users of state-authorized, medical marijuana ) that does not undermine the CSA's interstate ban."
Thomas noted that in two more recent decisions, the Supreme Court held unconstitutional a pair of laws regulating "non-economic activity" despite far-fetched assertions that the laws were necessary to regulate interstate commerce.
If, Thomas wrote, the court can strike down "entire portions of the United States Code" in those two cases, it is "implausible" that "it cannot engage in the more restrained practice of invalidating particular applications of the CSA that are beyond Congress' power."
Ask them and their doctors: Marijuana helps some patients. Congress disagreed. And by siding with Congress, Thomas argued, the court's majority effectively authorized Congress to regulate such non-commercial activities as "quilting bees, clothes drives, and potluck suppers," should it so desire.
Thomas is a formidable jurist.
Pubdate: Tue, 14 Jun 2005
Source: Ft. Worth Star-Telegram (TX)
Copyright: 2005 Star-Telegram, Fort Worth, Texas
Contact: letters@star-telegram.com
Website: https://www.star-telegram.com/
As many as 11 states have passed laws allowing doctors to prescribe marijuana for pain control in patients suffering from debilitating illnesses. But Congress claimed that its power to regulate interstate commerce also permitted it to prohibit the local cultivation and use of the drug for such patients.
By a vote of 6-3 in Gonzales vs. Raich, the Supreme Court agreed that Congress has such power and that its judgment must prevail. The reason is that the 1942 Wickard vs. Filburn decision allowing Congress to regulate the wheat grown by a farmer for use on his own farm is binding precedent.
Not so, Thomas argued.
Along with all eight of his colleagues, Thomas agreed that Wickard does confirm Congress' plenary power over our country's commercial activity. But he, like fellow dissenters Sandra O'Connor and William Rehnquist, thought that Congress must not be allowed to regulate non-economic activities simply because they might have economic implications.
To rule otherwise, they argued, "is tantamount to removing meaningful limits" on the power of the national government.
In our constitutional system, states enjoy a general "police power" to legislate for the health and safety of the population. But our national government may exercise only "enumerated powers" that are spelled out in the Constitution's text.
Civil libertarians, especially, should keep this fundamental distinction in mind. It is fine to defend individual rights. But equally important is the need to limit the national government to its constitutional powers.
Thomas is an old-fashioned jurist who first looks to the original precedent -- the Constitution's text -- and only then to judicial interpretations of that text.
So in the Raich case, he began his analysis of Congress' power to regulate interstate commerce by noting that Raich's locally grown marijuana never crossed state lines and had no demonstrable effect on interstate commerce.
Only then did Thomas turn to judicial precedents. Appropriately, he looked to the first landmark decision interpreting Congress' limited power to regulate the nation's economic life. McCulloch vs. Maryland ( 1819 ) was written by Chief Justice John Marshall, arguably the most formidable legal mind in the court's history.
Marshall wrote that only legislative acts "plainly adapted" to a specifically enumerated constitutional power can pass constitutional muster. That requires, Thomas wrote 186 years later, that if Congress may regulate local cultivation of marijuana, it must show that its regulation bears an "obvious, simple, and direct relation" to commerce that crosses state lines. Congress utterly failed to do that, Thomas added.
In the medical use case, Raich did not challenge Congress' power to regulate drug trafficking. She merely challenged Congress' Controlled Substances Act ( CSA ) as applied to herself.
Thomas argued that Raich's locally grown marijuana might be "regulable" if she were merely a member of "a large class ( local growers and users of marijuana )." But she also belongs "to a distinct and separable subclass ( local growers and users of state-authorized, medical marijuana ) that does not undermine the CSA's interstate ban."
Thomas noted that in two more recent decisions, the Supreme Court held unconstitutional a pair of laws regulating "non-economic activity" despite far-fetched assertions that the laws were necessary to regulate interstate commerce.
If, Thomas wrote, the court can strike down "entire portions of the United States Code" in those two cases, it is "implausible" that "it cannot engage in the more restrained practice of invalidating particular applications of the CSA that are beyond Congress' power."
Ask them and their doctors: Marijuana helps some patients. Congress disagreed. And by siding with Congress, Thomas argued, the court's majority effectively authorized Congress to regulate such non-commercial activities as "quilting bees, clothes drives, and potluck suppers," should it so desire.
Thomas is a formidable jurist.
Pubdate: Tue, 14 Jun 2005
Source: Ft. Worth Star-Telegram (TX)
Copyright: 2005 Star-Telegram, Fort Worth, Texas
Contact: letters@star-telegram.com
Website: https://www.star-telegram.com/
