Pubdate: Tue, 14 Jun 2005
Source: Ft. Worth Star-Telegram (TX)
Copyright: 2005 Star-Telegram, Fort Worth, Texas
Contact:  http://www.star-telegram.com/
Details: http://www.mapinc.org/media/162
Author: Don Erler, Special to the Star-Telegram
Note: Don Erler is president of General Building Maintenance.
Cited: Gonzales v. Raich http://www.angeljustice.org
Bookmark: http://www.mapinc.org/topics/Raich (Gonzales v. Raich)
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)

BACK TO CONSTITUTIONAL BASICS

Reviled by "progressive" observers as an "affirmative action"
appointee (does that mean "unqualified"?) and the weakest member of
the Supreme Court, Justice Clarence Thomas wrote a dissenting opinion
in last week's medical marijuana case that should jolt fair-minded
critics back to reality.

As many as 11 states have passed laws allowing doctors to prescribe
marijuana for pain control in patients suffering from debilitating
illnesses. But Congress claimed that its power to regulate interstate
commerce also permitted it to prohibit the local cultivation and use
of the drug for such patients.

By a vote of 6-3 in Gonzales vs. Raich, the Supreme Court agreed that
Congress has such power and that its judgment must prevail. The reason
is that the 1942 Wickard vs. Filburn decision allowing Congress to
regulate the wheat grown by a farmer for use on his own farm is
binding precedent.

Not so, Thomas argued.

Along with all eight of his colleagues, Thomas agreed that Wickard
does confirm Congress' plenary power over our country's commercial
activity. But he, like fellow dissenters Sandra O'Connor and William
Rehnquist, thought that Congress must not be allowed to regulate
non-economic activities simply because they might have economic
implications.

To rule otherwise, they argued, "is tantamount to removing meaningful
limits" on the power of the national government.

In our constitutional system, states enjoy a general "police power" to
legislate for the health and safety of the population. But our
national government may exercise only "enumerated powers" that are
spelled out in the Constitution's text.

Civil libertarians, especially, should keep this fundamental
distinction in mind. It is fine to defend individual rights. But
equally important is the need to limit the national government to its
constitutional powers.

Thomas is an old-fashioned jurist who first looks to the original
precedent -- the Constitution's text -- and only then to judicial
interpretations of that text.

So in the Raich case, he began his analysis of Congress' power to
regulate interstate commerce by noting that Raich's locally grown
marijuana never crossed state lines and had no demonstrable effect on
interstate commerce.

Only then did Thomas turn to judicial precedents. Appropriately, he
looked to the first landmark decision interpreting Congress' limited
power to regulate the nation's economic life. McCulloch vs. Maryland
(1819) was written by Chief Justice John Marshall, arguably the most
formidable legal mind in the court's history.

Marshall wrote that only legislative acts "plainly adapted" to a
specifically enumerated constitutional power can pass constitutional
muster. That requires, Thomas wrote 186 years later, that if Congress
may regulate local cultivation of marijuana, it must show that its
regulation bears an "obvious, simple, and direct relation" to commerce
that crosses state lines. Congress utterly failed to do that, Thomas
added.

In the medical use case, Raich did not challenge Congress' power to
regulate drug trafficking. She merely challenged Congress' Controlled
Substances Act (CSA) as applied to herself.

Thomas argued that Raich's locally grown marijuana might be
"regulable" if she were merely a member of "a large class (local
growers and users of marijuana)." But she also belongs "to a distinct
and separable subclass (local growers and users of state-authorized,
medical marijuana) that does not undermine the CSA's interstate ban."

Thomas noted that in two more recent decisions, the Supreme Court held
unconstitutional a pair of laws regulating "non-economic activity"
despite far-fetched assertions that the laws were necessary to
regulate interstate commerce.

If, Thomas wrote, the court can strike down "entire portions of the
United States Code" in those two cases, it is "implausible" that "it
cannot engage in the more restrained practice of invalidating
particular applications of the CSA that are beyond Congress' power."

Ask them and their doctors: Marijuana helps some patients. Congress
disagreed. And by siding with Congress, Thomas argued, the court's
majority effectively authorized Congress to regulate such
non-commercial activities as "quilting bees, clothes drives, and
potluck suppers," should it so desire.

Thomas is a formidable jurist.
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MAP posted-by: Richard Lake