I have read Gonzales v. Raich. And I’m not happy, either with the decision, or with my (usual) hero Antonin Scalia, who wrote an unconvincing concurrence. But I’m more and more impressed with Clarence Thomas.
Almost no case disturbed me in law school as much as Wickard v. Filburn. To me, this decision held more potential for totalitarianism than any other.
Wickard ruled that the federal government may put a quota on how much food a citizen can grow for personal use on his own property. You know: like they did in Communist Russia. The theory was that the government has the right to control the supply and demand of goods on the open market. Allowing citizens to grow their own food would reduce demand for that food on the open market, creating undesirable surpluses.
When the government can tell you how much food you can grow for your own use, there’s little it can’t do. It would be difficult to imagine a more serious infringement on personal liberty.
The Supreme Court had a golden chance to overrule Wickard v. Filburn today, and it declined to do so. Apparently the parties did not even ask the Court to do so, and no Justice even discussed the possibility. To the contrary, in ruling that the federal government may limit citizens’ right to grow marijuana on their own land for their own personal consumption for medicinal purposes, the Court relied heavily on Wickard, cementing its ignominious place in our constitutional jurisprudence. That’s a shame. The biggest shame is that my favorite justice, Antonin Scalia, concurred with this decision.
As I read the decision, the basic theory is this: the federal government may limit purely personal cultivation and consumption of marijuana, because what is personal today could easily become commercial tomorrow. Once marijuana is grown, it can be easily sold to others. This will create a supply for a good that the federal government wants to eradicate entirely. As Justice Scalia explains in his concurrence:
Drugs like marijuana are fungible commodities. As the Court explains, marijuana that is grown at home and possessed for personal use is never more than an instant from the interstate market—and this is so whether or not the possession is for medicinal use or lawful use under the laws of a particular State.
Ergo, the government has the right to control such personal cultivation. My new hero Clarence Thomas has an excellent riposte to this argument:
[U]nder the CSA [Controlled Substances Act], certain drugs that present a high risk of abuse and addiction but that nevertheless have an accepted medical use— drugs like morphine and amphetamines—are available by prescription. 21 U. S. C. §§812(b)(2)(A)–(B); 21 CFR §1308.12 (2004). No one argues that permitting use of these drugs under medical supervision has undermined the CSA’s restrictions.
If getting morphine by prescription doesn’t undermine the federal government’s drug laws, why does carefully limited cultivation of marijuana for medicinal purposes pose such a threat?
In my view, Justice Thomas has it exactly right:
Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. 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.
. . . .
If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison’s assurance to the people of New York that the “powers delegated” to the Federal Government are “few and defined,” while those of the States are “numerous and indefinite.” The Federalist No. 45, at 313 (J. Madison).
My only problem with Thomas’s opinion is that he doesn’t argue that Wickard must be overruled.
I don’t like Justice O’Connor’s concurrence as much as I like Thomas’s, but I agree with this sentiment:
Relying on Congress’ abstract assertions, the Court has endorsed making it a federal crime to grow small amounts of marijuana in one’s own home for one’s own medicinal use. This overreaching stifles an express choice by some States, concerned for the lives and liberties of their people, to regulate medical marijuana differently. If I were a California citizen, I would not have voted for the medical marijuana ballot initiative; if I were a California legislator I would not have supported the Compassionate Use Act. But whatever the wisdom of California’s experiment with medical marijuana, the federalism principles that have driven our Commerce Clause cases require that room for experiment be protected in this case.
I entirely agree — and I did vote against Proposition 215. I think it cynically provides potheads an end run around the marijuana laws. If we’re going to legalize narcotics, let’s do it in a straightforward manner.
If you disagree with me, and you support medicinal marijuana, then take a cue from Justice Stevens’s language (quoted earlier by the Angry Clam) and write your Congresscreature. When it comes to the alleged benefits of medicinal marijuana to very ill people, the blame (if blame is to be assessed) for removing that option lies with Congress, not with the Supreme Court. If you want the law to change, Congress is where you should go.
But ultimately, this decision is not about medicinal marijuana; it’s about the power of the federal government. However you feel about medicinal marijuana, we should all agree that it’s not a good idea to give the federal government the power to do any damn thing it wants to.