Thomas Sowell

 Courts that go in for nuanced applications of the law can produce a lot of 5 to 4 decisions, with different coalitions of Justices voting for and against different parts of the same decision.

 A much bigger and more fundamental problem is that millions of ordinary citizens, without legal training, have a hard time figuring out when they are or are not breaking the law. Nuanced courts, instead of drawing a line in the sand, spread a lot of fog across the landscape.

 Justice Clarence Thomas cut through that fog in his dissent when he said that the people involved in this case "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."

 Instead of going in for fashionable "nuance" talk, Justice Thomas drew a line in the sand: "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."

 In short, the kinds of limitations on the power of the national government created by the Constitution are being nuanced out of existence by the courts.

 Ironically, this decision was announced during the same week when Janice Rogers Brown was confirmed to the Circuit Court of Appeals. One of the complaints against her was that she had criticized the 1942 decision expanding the meaning of "interstate commerce." In other words, her position on this was the same as that of Clarence Thomas -- and both are anathema to liberals.

Thomas Sowell

Thomas Sowell is a senior fellow at the Hoover Institute and author of The Housing Boom and Bust.

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