Let's Roll Another Joint

On presumably the last year of the Rehnquist Court, an opportunity to limit the federal government has presented itself yet again. While old and feeble, Rehnquist commands the ability to finally, and actually, do what many people have said he did years earlier – undermine and destroy the New Deal legislation. And I couldn’t be happier.

In 1994 the Rehnquist Court reversed course on legislation dealing with the commerce clause, and decided that Congress should have limits upon it. It has been slowly chipping away at it since. But now, opportunity comes a knocking from an unlikely source.

The case of Raich v Ashcroft will end up with one of two things: either the federal government will be viewed as something as unlimited in scope, or that it will be viewed as something as limited. Oh, and Raich can smoke pot if the latter is the case.

The attorney for Raich, Randy Barrett, brilliantly offered the following, in the importance of drawing a distinction of economic activity from the non-economic: “The premise is that it is possible to differentiate economic activity from personal activity. Prostitution is economic activity, and there may be some cross substitution effects between prostitution and sex within marriage, but that does not make sex within marriage economic activity. You look at the nature of the activity to determine whether or not it is economic.”

His argument, of course, has to do with the use of medical marijuana. If someone smokes their own weed and does not sell it, what harm does that do to anyone? Jefferson once said, “It neither picks my pocket nor breaks my leg” if a neighbor of his was to worship twenty gods or no god, and here is the same exact thing. A person minding their own business smoking weed that they grew themselves is not doing any harm to anyone. Yet federal agents have raided many people’s homes and destroyed and seized their gardens that contained so few plants it would take quite an imagination to think they would be used later for interstate, let alone intrastate, commerce. Knowing that these people have grown weed for their own enjoyment or for the supposed medical benefits of marijuana, and not for the sale cross state boundaries, for the Supreme Court to side with the Justice Department in upholding the ban on the sale of marijuana along with many other drugs would be absolutely irresponsible. Over the past ten years the Supreme Court has rejected reasoning by the government that “if this happens then maybe this happens and then this thing happens and finally that may effect commerce so it is therefore under the commerce clause” as being so far as a stretch that it begs the question why we even have a Constitution at all. The Court must hold that the Californian law regarding use of medical marijuana is constitutional and that the federal statues regarding such drug use are not.

If it does not rule in this way, it does far worse damage then if it would have been done a decade ago: it limits the cases over the past decade that had limited the Congress’ authority in the commerce clause to strictly their facts, therefore opening a floodgate of more and more federal regulation with such sweeping powers our Founders would be appalled we had not yet had another Revolution to destroy tyranny. But if it rules in favor of California, that will open many federal laws to scrutiny. Does the federal government have the ability to ban the possession of say, eagle feathers, even if they never crossed state lines? Today they do, but in a post Raich world, if the Courts rules in favor of Federalism and of the Constitution, they will not. States obviously would make up the gap but that that is how this country was originally intended to be. I think Rehnquist will want to go out securing the principles of federalism, and this is the case to do it. And conservatives, regardless of what you think of marijuana, I believe are forced to agree with this position.