Who's really for limited government?

Posted: Jun 12, 2005 12:00 AM

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.

In his majority decision, Justice Stevens restates the worst elements of modern jurisprudence. Even if an activity is local and may not be regarded as commerce, "it may still," says the Court, "whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce." Of course, "substantial" does not mean what an economist might expect it to mean ? that is, that if producing the good in question would then change the general price level for that good in some other state. Nope. Nothing as common-sensical as that. Any conceivable effect counts as "substantial." And, with this hyper-loose interpretation of the Commerce Clause, Congress may do pretty much anything.

There's nothing new here, of course. Ever since the court backed FDR's insane agricultural policy on the grounds of the Commerce Clause, our federal government has operated without much of a limit.

Justice Sandra Day O'Connor ? along with fellow-Republican appointees William H. Rehnquist and Clarence Thomas ? dissented from the decision. She wrote that though the effect of California's law on interstate commerce in marijuana was "plausible," she did not think the case had been substantiated. Stevens dismisses her argument. The fact that "the national and international narcotics trade has thrived in the face of vigorous criminal enforcement efforts suggests that no small number of unscrupulous people will make use of the California exemptions to serve their commercial ends whenever it is feasible to do so." In other words, the majority court presumes that some marijuana users who by law cultivate marijuana will disobey the law and grow more than legal, and that the mere existence of guilty persons nullifies the rights of innocent persons.

Bye-bye, innocent until proven guilty.

Unsurprisingly, the majority Court was not particularly interested in the medical details. "We have never required Congress to legislate with scientific exactitude. When Congress decides that the 'total incidence' of a practice poses a threat to a national market, it may regulate the entire class." Down to the last dying cancer patient, apparently.

Reasonable Dissent
If manna were to fall from the heavens, and were it to possess an intense psychoactive effect, our government would still try to prohibit it under the rubric of "the war on drugs." This war is not in essence about commerce. It's not truck and barter and price levels that concerns drug warriors. It's the fact that some people are getting hedonistic pleasure and doing themselves varying degrees of harm in the process. If manna were the source of such dangerous pleasures, the government would make it illegal to pluck if off the ground.

You know it, I know it, and our judges know it. But, because the "Commerce Clause" of the Constitution gives the federal government its slimmest of excuses to regulate drug use, that's how it's done. We live in a strange world. It's as if our leaders were on drugs.

Not everyone agrees with the status quo excuses, of course. Sandra Day O'Connor still holds to something like the original view of the Constitution:

Relying on Congress' abstract assertions, the Court has endorsed making it a federal crime to grow small amounts of marijuana in one's own home for one's own medicinal use. This overreaching stifles an express choice by some States, concerned for the lives and liberties of their people, to regulate medical marijuana differently. If I were a California citizen, I would not have voted for the medical marijuana ballot initiative; if I were a California legislator I would not have supported the Compassionate Use Act. But whatever the wisdom of California's experiment with medical marijuana, the federalism principles that have driven our Commerce Clause cases require that room for experiment be protected in this case.

Justice Thomas, in his separate dissent, goes further:

Respondents Diane Monson and Angel Raich 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. 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.

Thomas continues in this vein, referencing his own past concurring decisions, "founding-era dictionaries, Madison's notes from the Constitutional Convention, The Federalist Papers, and the ratification debates" . . . as well as a scholarly article entitled "The Original Meaning of the Commerce Clause." He clearly explains that California's medical marijuana law created a separate class of users and growers ? none commercial, by the founders' own language. And then he gets to a killer argument: "We normally presume that States enforce their own laws . . . and there is no reason to depart from that presumption here: Nothing suggests that California's controls are ineffective." And in light of this, state's law should, by good federalist principles, trump the federal government's apparent "interest" in prosecuting every marijuana user and grower, no matter what.

Though commerce really isn't the issue, power and rights are, as Thomas suggests: "Congress presented no evidence in support of its conclusions, which are not so much findings of fact as assertions of power."

Justice Stevens worries about the "sweeping implications" of Thomas's argument. Why, by Thomas's rationale, "any federal regulation (including quality, prescription, or quantity controls) of any locally cultivated and possessed controlled substance for any purpose" might be rendered null and void. How shocking. And how unsurprising to note that Stevens worries not at all about the sweeping implications of an unlimited federal government. (As I often remark in my Common Sense e-letter, America's traditional ideal of limited government has been all but forgotten by those in power.)

At Odds
It's one thing to talk a good game about federalism and limited government, but another to stick to principles. George W. Bush, when first running for national office, came out for states' rights to regulate medical marijuana separate from the federal government. But as president he turned his back on this position, unleashing John Ashcroft not only to fight the war on drugs, but also extending the war to trample state prerogatives.

And yet, he did nominate Judge Brown to the D.C. Circuit Court of Appeals.

There is a tension here. On the one hand, Judge Brown supports a decentralist, limited-government view of the Constitution; on the other, the war on drugs, particularly in its trumping of state medical marijuana law, abandons any notion of limited powers, and in no ways supports state rights.

Monday's decision on medical marijuana shows a split among conservatives on the court ? and outside the court ? allowing federal power to continue without any meaningful limit. Yet, the confirmation of Judge Brown, to a traditional jumping-off point to the Supreme Court, gives hope that the federal government can someday be brought back under constitutional limits.