In a previous entry about the Raich case, we lamely plumbed Scalia’s reasons for siding with the majority in the federal marijuana case, speculating that either careerism or a concern for stability drove his reasoning, but this article by Matt Welch raises another, more plausible reason for Scalia voting as he did that federal drug laws needed to prohibit medical marijuana to be effective. Matt says:
Those who fret about morality in America, take note: Raich v. Gonzales codifies our status as a Nation of Liars.
…because the drug laws are hypocritical, etc. But he ignores another dimension of the lying about drugs that’s material to this case, namely the whole “medical use” scam. Look, we all know that medical use is just a tricky way to legalize pot; that was the intent of the people who put these initiatives before the voters, and that’s been the effect of medical use in California. Anybody who’s caught with personal quantities of pot in California today is presumed to be a medical user, so in effect anybody can grow, smoke, and possess fairly significant amounts of dope without worrying about local law enforcement. Something very similar happened with abortion back when Reagan was governor. He signed a bill saying abortion was permissible to preserve the health of the mother, and before you knew it every pregnant woman with some anxiety about raising a kid had a medical problem that justified an abortion.
So when you look at the decisions of Justices Thomas and Scalia, you should bear in mind that Thomas writes about medical marijuana as it formally and superficially appears in the California law, and Scalia writes about it as it is. If you accept that the federal government is justified in regulating interstate commerce, and you deal with the reality of California under the medical use law, you have to conclude that California has attempted to undermine or circumvent federal authority with a tricky law that in fact has a significant effect on the interstate drug trade. On the basis of actual effects, the California law had to be struck down, leaving the matter to be settled by Congress, not the court.
And that’s actually as it should be, whether you like dope or not.
I don’t like dope, and I agree that a big chunk of the medical-marijuana enthusiasm is a stalking horse for Legalize It, Mon. But I think it’s a reasonable enough “medicine” for a terminal patient who’s bummed out, needs to gain weight, and/or would like to be stoned now and then instead of just dying; and I don’t think in any case that home-growing octogenarian cancer ladies are affecting Interstate Commerce.
Ideally, like John Paul George Ringo Stevens suggested, Congress will change the federal laws, though that won’t happen anytime soon, given the general gutlessness. In the meantime, I’m not so thrilled that the burden of proof for using the Commerce Clause seems lighter even than my head after one hit.
I think the reality of Commerce Clause lightening depends on whether you go by the characterization that only little old sick ladies are toking-up under California’s law or the reality that pot’s legal for everybody. The latter is much closer to the truth than the former, of course.
The big question for me (which the Court has settled to its satisfaction long ago), is whether the Commerce Clause really allows Congress to say “X is covered by the Clause even to produce and use yourself, because that means you wouldn’t be buying it on the market, or because you might sneakily sell it”; I certainly can’t convince myself that the authors of the document or the plain reading of the text support that.
I’ve always had the crazy idea that the Commerce clause properly only let Congress regulate actual trade between states (or states and other countries), not trade or non-trade that somehow affects such trade without actually involving the stuff in question crossing state lines.
But I’m a troglodyte that way, really.
Yeah, the classical view of the Commerce Clause went out with Wickard.