This from the editors of TNR:
The 6-3 majority opinion in Gonzales v. Raich by Justice John Paul Stevens was an uncontroversial application of Supreme Court decisions that have been settled since the New Deal. In 1942, the Court upheld Congress’s power to regulate wheat grown for personal consumption, on the theory that locally consumed wheat might reduce demand for wheat that crossed state lines. By the same logic, Stevens held for the majority, Congress could prohibit the use of marijuana grown for personal medical use, since it, too, might have a substantial effect on the national market for recreational pot.
In a welcome development, the majority included Justices Antonin Scalia and Anthony Kennedy, two leaders of the so-called federalism revolution on the Rehnquist Court. In other cases, which this magazine has criticized, Scalia and Kennedy have voted to strike down congressional regulation of guns in schools and violence against women. But Scalia reasoned that those cases could be distinguished from the regulation of marijuana because they did not involve economic activity. Scalia’s willingness to uphold Congress’s broad power to regulate the national economy shows him at his best: a traditional conservative defender of judicial restraint, who is willing to respect precedents with which he disagrees.
Unfortunately, three other champions of states’ rights–O’Connor, Rehnquist, and Thomas–endorsed a reckless judicial activism. In her dissenting opinion, O’Connor’s contempt for Congress converged with her devotion to states’ rights: She said that Congress could not regulate medical marijuana unless it made detailed findings that the regulation was essential to the enforcement of national drug laws. But, as Stevens pointed out, it’s not the job of the Court to flyspeck what are quintessentially policy judgments; instead, the Court should uphold Congress’s regulations as long as a reasonable person might conclude that they would affect interstate commerce.
But wait, Raich has NOTHING to do with Wickard, save perhaps that they are both bad decisions. I mean, in Raich, we are talking about an activity (the interstate commerce in marijuana) which is illegal, and should ideally be zero. Only by some wild flight of fantasy could any reasonable person claim that a user cultivating marijuana for their own use could do anything but DECREASE the interstate traffic.
I mean, by this precedent, it could be claimed that it is Unconstitutional for Amber Alerts to be put out by neighboring States after a child has been kidnapped, as it may effect the interstate trade in sex slaves.
Update: Marty Lederman at SCOTUSblog has this interesting take on Wickard:
— And then there’s Wickard itself, of course. One got the sense that the Lopez and Morrison courts were not too fond of Wickard, but were willing to nominally affirm it as long as it could be narrowly described and its precedential import contained. But at some point, the Court would have to overrule Wickard, or distinguish it away to nothing, if it were to place serious constraints on Congress — and today’s decision suggests that we’ll be waiting quite a while longer for that day to come. Indeed, the Court is unlikely to abandon Wickard-like attenuation analysis anytime soon, because such analysis comes in very handy when there’s a statute that the Court wishes to uphold. Just two years ago, for instance, the Court unanimously upheld a federal statute requiring states to make certain hazardous-road reports inadmissible as evidence in state-court proceedings. This statute fell within Congress’s Commerce Clause power to protect channels of commerce, reasoned the Court, because of the following possible causal chain: Requiring such an evidentiary rule would make it more difficult for would-be plaintiffs to obtain evidence to support negligence actions against state and local governments, which would in turn “result in more diligent [government] efforts to collect the relevant information, more candid discussions of hazardous locations, better informed decisionmaking, and, ultimately, greater safety on our Nation’s roads.†The writer of this opinion, which makes Wickard‘s causal chain look direct and obvious by comparison? None other than Justice Thomas.
Read the whole post. There is a definite lack of intellectual consistancy in the Court’s so-called Federalist Revolution.
