Pubdate: Thu, 09 Jun 2005
Source: Oklahoman, The (OK)
Copyright: 2005 The Oklahoma Publishing Co.
Contact:  http://www.oklahoman.com/
Details: http://www.mapinc.org/media/318
Author: George Will, Washington Post Writers Group
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)
Bookmark: http://www.mapinc.org/topics/Raich (Raich v. Ashcroft)
Bookmark: http://www.mapinc.org/women.htm (Women)

RULING CLOUDS ASSUMPTIONS

WASHINGTON - With the parties warring over the composition of the 
judiciary, and with a Supreme Court vacancy perhaps impending, Americans 
should use the court's end-of-term decisions as whetstones on which to 
sharpen their sense of the ambiguities in the categories -- "liberal," 
"conservative," "activist," "practitioner of judicial restraint" -- used 
when judges are discussed. Consider the case arising from the destruction, 
by agents of the Drug Enforcement Agency, of Diane Monson's homegrown 
marijuana plants, a case about which the court's two most conservative 
justices, Antonin Scalia and Clarence Thomas, disagreed.

Monson, and another woman using homegrown marijuana recommended by her 
doctors, sought an injunction against enforcement of the federal Controlled 
Substances Act. Both said they had a right to their plants under 
California's Compassionate Use Act.

Passed overwhelmingly by referendum in 1996, that act allows marijuana use 
by individuals whose doctors recommend it for the relief of pain or nausea. 
But this law -- 10 other states have similar ones -- runs contrary to the 
federal statute.

The two women argued against enforcement of that law, saying that the 
private use of homegrown marijuana has nothing to do with interstate 
commerce, hence Congress has no constitutional power to regulate it. On 
Monday the Supreme Court disagreed.

In a 6-3 ruling, the court held that Congress' claim to exclusive 
regulatory authority over drugs, legal and illegal, fell well within its 
constitutional power to regulate interstate commerce. This was predictable, 
given what the court said 63 years ago about an Ohio farmer's 239 bushels 
of homegrown wheat.

That, used for food, seeds and feed for livestock, was raised and used 
entirely on Roscoe Filburn's farm. None of it entered intrastate, let alone 
interstate, commerce. So Filburn argued that although the 239 bushels 
exceeded his production quotas under the federal Agricultural Adjustment 
Act, they were none of the federal government's business, and he refused to 
pay the stipulated penalty.

A unanimous Supreme Court disagreed, arguing the cumulative effect of even 
minor and local economic activities can have interstate consequences. The 
court said even a small quantity of grain "supplies a need of the man who 
grew it which would otherwise be reflected by purchases in the open market. 
Home-grown wheat in this sense competes with wheat in commerce." That said, 
clearly Congress' power under the Commerce Clause is vast enough to permit 
Congress to decide that the use of even homegrown marijuana can affect the 
interstate market.

Writing for Monday's majority, Justice John Paul Stevens, perhaps the most 
liberal justice, was joined by Justices Stephen Breyer, David Souter, Ruth 
Bader Ginsburg and Anthony Kennedy. Scalia concurred separately. Stevens 
said that one does not need "a degree in economics to understand why a 
nationwide exemption" for large quantities of marijuana cultivated for 
personal use could have a "substantial impact on the interstate market" for 
a commodity that Congress aims to "conquer." Scalia, responding to the two 
women's and the court minority's invocation of states' sovereignty, cited a 
previous court ruling that Congress may regulate even when its regulation 
"may pre-empt express state-law determinations contrary to the result which 
has commended itself to the collective wisdom of Congress."

Justice Sandra Day O'Connor, a former Arizona state legislator, dissented, 
echoing Justice Louis Brandeis' judgment that federalism is supposed to 
allow a single state to be a "laboratory" to "try novel social and economic 
experiments without risk to the rest of the country." Her dissent was 
joined by Chief Justice William Rehnquist, who wrote the court's opinion in 
a 1995 case that conservatives mistakenly hoped would signal substantial 
inhibitions on Congress in the name of federalism. In that case, the court 
overturned, as an invalid exercise of the power to regulate commerce, a 
federal law regulating the possession of guns near schools.

Thomas, the justice least respectful of precedents, joined O'Connor's 
dissent and also dissented separately, disregarding many precedents giving 
almost infinite elasticity to the Commerce Clause. He said that the women's 
marijuana was never bought or sold, never crossed state lines and 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" including "quilting bees, clothes drives and potluck suppers." 
Thus "the federal government is no longer one of limited and enumerated 
powers." But that has been the case at least since 1942.

In Monday's decision, which of the justices were liberal, which were 
conservative? Which exemplified judicial activism, which exemplified 
restraint? Such judgments are not as easy as many suppose.
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MAP posted-by: Terry Liittschwager