Posted 10:29 AM by Robert

On Dope III

Suppose I spend my weekends manufacturing meth amphetamine from common cold remedies in my basement lab and providing it to school kids from a sidewalk stand in front of my house.

Do the editorial writers at the Wall Street Journal and all the other critics of Gonzales v. Raich really want to spend their time explaining why the federal government cannot stop me from doing that because the Commerce Clause is not that broad? Do they want to explain to the public why a 60-year-old Supreme Court precedent had to be over ruled to get to that result?

Or would those critics prefer explaining in detail why the "interstate commerce component" of my little operation is just so much more substantial than the interstate commerce component of the Raich operation involving people who grow dope in their back yard and provide it to people having a doctor's prescription? Is the fact that my cold remedy base came through channels of interstate commerce supposed to make the difference - but the commercial fertilizer used by the dope growers is not enough "interstate contact?" Does the fact that my customers are children and not adult cancer patients make my operation "interstate commerce?" Or perhaps it's the doctor's prescription that does the trick? And, then again, perhaps the difference would have something to do with the California law that explicitly approves of medical marijuana (but not meth amphedimines) - so that the federal prohibition on such marijuana use would be valid in, say, Utah, but not good in California? A kind of 21st Century "nullification doctrine?" Is that how the Constitution works in the minds of these critics?

I'm just dying to know.

UPDATE: It's interesting to observe that Justice Thomas' dissent makes no attempt to distinguish Wickard whatsoever. In fact, the only mention of Wickard in that dissent is this: This Court has regularly entertained as-applied challenges under constitutional provisions, see ... Wickard v. Filburn, 317 U. S. 111, 113-114 (1942). His dissent would over rule Wickard sub silentio. At least he is honest and coherent - if subtle.

On the other hand, Justice O'Connor's attempt to distinguish Wickard is an embarrassment. Marijuana is California's largest cash crop - and plenty of it is grown on land somebody calls "home." Her assertions to the contrary are just bizarre and lacking in common sense, and she slides embarrassingly between references to "home grown marijuana" and "medical marijuana" - almost as if she thinks they're more or less the same thing, as in this frenzied passage:

There is simply no evidence that homegrown medicinal marijuana users constitute, in the aggregate, a sizable enough class to have a discernable, let alone substantial, impact on the national illicit drug market--or otherwise to threaten the CSA regime. Explicit evidence is helpful when substantial effect is not "visible to the naked eye." See Lopez, 514 U. S., at 563. And here, in part because common sense suggests that medical marijuana users may be limited in number and that California's Compassionate Use Act and similar state legislation may well isolate activities relating to medicinal marijuana from the illicit market, the effect of those activities on interstate drug traffic is not self-evidently substantial.

Among many things missing from her analysis is any explanation of why "medical marijuana" or even "home grown marijuana" (whatever that is) are entitled to the kind of special consideration that, for example, is denied to the class of all dope that one specific person, personally grows in his back yard. She admits that no person could argue that the federal government is bereft of authority over his stash just because he and it, alone, do not substantially affect interstate commerce. So why do the classes of "medical marijuana" or even "home grown marijuana" somehow have special dignity entitled to be considered on their own? She never says.

It is probably no accident that the Wall Street Journal editorial noted above praises Justice Thomas' dissenting opinion, but does not even mention that of Justice O'Connor. The less said about that mess, the better.

Those of us who desire sharp restrictions on Wickard should be sleeping better that Justice O'Connor did not prevail. If she had succeeded on the pale arguments she present in her dissent, those who seek to expand liberal control of the federal courts would have been handed a powerful weapon: Don't let conservatives put people on the federal courts who will write opinions like Justice O'Connor's indefensible effort in Raich. That argument alone could make the difference in control of the Senate.