Paul Jacob

Want a depressing read, hot for summer? Try Justice John Paul Stevens's decision in Gonzales v. Raich. In that long document, the majority of the Supreme Court ruled against voter-enacted, state-defended medical marijuana and came down four-square for the dangerous, twisted, modern reading of our Constitution's Commerce Clause.

Want a more upbeat read, instead? Try any newspaper account of Wednesday's Senate confirmation of judicial nominee Janice Rogers Brown to the D.C. Circuit Court of Appeals. After fended-off threats of filibuster ? and the "nuclear option" to get around the filibuster ? the deed is finally done.

The two stories are connected, and not just because they deal with the judiciary. The connecting issue is limited government and the strict construction of the Constitution. Though the majority court came down against both notions, the minority did not. And Ms. Brown, now closer to a spot on the nation's highest court, would almost certainly side with the minority and against the federal government. Which brings me to my question:

Upon which side will conservatives and Republicans ultimately weigh in? Unlimited federal regulatory power, or state prerogatives and a federal government of enumerated (and thus limited) power?

Commerce Claws
At issue in Gonzales v. Raich was whether the state of California could, in effect, nullify federal law regarding a few citizens' use of a once commonly grown plant, hemp (cannabis, marijuana) according to criteria put into law by a voter-enacted initiative, Proposition 215, and later codified as the Compassionate Use Act of 1996. The idea was simple: enable seriously ill people to use the drug for medical purposes. To do this, doctors were exempted from criminal prosecution for prescribing the drug, and patients and primary caregivers were exempted from prosecution for cultivating and possessing the drug. The Supreme Court held that the Constitution's Commerce Clause did indeed grant Congress the authority to prohibit any cultivation and use of marijuana, even so far as to trump California law.


Paul Jacob

Paul Jacob is President of Citizens in Charge Foundation and Citizens in Charge. His daily Common Sense commentary appears on the Web and via e-mail.