Charles Krauthammer

WASHINGTON -- Justice Thomas: ``Dope is cool.''

     Justice Scalia: ``Let the cancer patients suffer.''

     If the headline writers characterized Supreme Court decisions the way many senators and most activists and lobbying groups do, that is how they would have characterized the Supreme Court decision this week on medical marijuana in California. It was ruled illegal because the federal law (prohibiting it) supersedes the state law (permitting it). Scalia agreed with the decision. Thomas dissented.

     In our current corrupted debates about the judges, you hear only about results. Priscilla Owen, we were told (by the Alliance for Justice), ``routinely backs corporations against worker and consumer protections.'' Well, in what circumstances? In adjudicating what claims? Under what constitutional doctrine?

     The real question is never what judges decide, but how they decide it. The Scalia-Thomas argument was not about concern for cancer patients, the utility of medical marijuana or the latitude individuals should have regarding what they ingest.

     It was about what the commerce clause permits, and even more abstractly, who decides what the commerce clause permits. To simplify only slightly, Scalia says: Supreme Court precedent.  Thomas says: the Founders, as best we can interpret their original intent.

     The Scalia opinion (concurring with the majority opinion) appeals to dozens of precedents over the last 70 years under which the commerce clause was vastly  expanded to allow the federal government to regulate what had, by the time of the New Deal, become a highly industrialized country with a highly nationalized economy.

     Thomas' dissent refuses to bow to such 20th-century innovations. While Scalia's opinion is studded with precedents, Thomas pulls out founding-era dictionaries (plus Madison's notes from the Constitutional Convention, The Federalist Papers, and the ratification debates) to understand what the word commerce meant then. And it meant only ``trade or exchange'' (as distinct from manufacture) and not, as we use the term today, economic activity in general. By this understanding, the federal government had no business whatsoever regulating privately and medicinally grown marijuana.

     This is constitutional ``originalism'' in pure form. Its attractiveness is that it imposes discipline on the courts. It gives them a clear and empirically verifiable understanding of constitutional text -- a finite boundary beyond which even judges with airs must not go.

Charles Krauthammer

Charles Krauthammer is a 1987 Pulitzer Prize winner, 1984 National Magazine Award winner, and a columnist for The Washington Post since 1985.

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