George Will

WASHINGTON  -- With the parties warring over the composition of the federal judiciary, and with a Supreme Court vacancy perhaps impending, Americans should use the court's end-of-term decisions as whetstones on which to sharpen their sense of the ambiguities in the categories -- ``liberal,'' ``conservative,'' ``activist,'' ``practitioner of judicial restraint'' -- used when judges are discussed. Consider the case arising from the destruction, by agents of the Drug Enforcement Agency, of Diane Monson's home-grown marijuana plants, a case about which the court's two most conservative justices, Antonin Scalia and Clarence Thomas, disagreed.
Monson, and another woman using home-grown marijuana recommended by her doctors, sought an injunction against enforcement of the federal Controlled Substances Act. Both said they had a right to their plants under California's Compassionate Use Act.  Passed overwhelmingly by referendum in 1996, that act allows marijuana use by individuals whose doctors recommend it for the relief of pain or nausea. But this law -- 10 other states have similar ones -- runs contrary to the federal statute.

The two women argued against enforcement of that law, saying that the private use of home-grown marijuana has nothing to do with interstate commerce, hence Congress has no constitutional power to regulate it. On Monday the Supreme Court disagreed.

In a 6-3 ruling, the court held that Congress' claim to exclusive regulatory authority over drugs, legal and illegal, fell well within its constitutional power to regulate interstate commerce. This was predictable, given what the court said 63 years ago about an Ohio farmer's 239 bushels of home-grown wheat.

That, used for food, seeds and feed for livestock, was raised and used entirely on Roscoe Filburn's farm. None of it entered intrastate, let alone interstate, commerce. So Filburn argued that although the 239 bushels exceeded his production quotas under the federal Agricultural Adjustment Act, they were none of the federal government's business, and he refused to pay the stipulated penalty.

A unanimous Supreme Court disagreed, arguing that the cumulative effect of even minor and local economic activities can have interstate consequences. The court said even a small quantity of grain ``supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce.'' That said, clearly Congress' power under the Commerce Clause is vast enough to permit Congress to decide that the use of even home-grown marijuana can affect the interstate market.

George Will

George F. Will is a 1976 Pulitzer Prize winner whose columns are syndicated in more than 400 magazines and newspapers worldwide.
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