Gonzales v. Raich

by Liberty and Power

A few days ago in a Blog I linked to an article on Forbes.com about Milton Friedman's endorsement of Harvard economist Jeffrey Miron's study demonstrating the billions of dollars that could be saved and the billions of dollars that could be generated by legalizing marijuana.

However, money is not Dr. Friedman's most important concern. The piece quotes him as saying, "Look at the factual consequences: The harm done and the corruption created by these laws...the costs are one of the lesser evils." Yesterday, when the Supreme Court handed down it decision in Gonzales v. Raich we found out exactly what Milton Friedman was talking about, As Justice Thomas put it in his dissent, If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything -- and the Federal Government is no longer one of limited and enumerated powers."

Over at The Volokh Conspiracy Orin Kerr has a post in which he argues that the decision giving the federal government the power to imprison medical marijuana users in jurisdictions where they are protected by state law will have little real world impact. Whether he is correct or not remains to be seen, but, what about the millions of people who will lose opportunity or have their lives disrupted, sometimes severely, by an ever intrusive Federal Government greatly encouraged by this ruling?

And, if anyone does not believe that Gonzales v. Raich is part of the price we pay for our war on people who use certain kinds of drugs, then ask yourself this if the issue had been anything other than marijuana would a Supreme Court trending towards a restoration of state's rights have acted in the same manner?

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John Arthur Shaffer - 6/8/2005

I wonder how Scalia would have voted if Mississippi or some other Southern state had a law that mandated execution for possession of marijauna?

Keith Halderman - 6/8/2005

Mr. Kerr writes, "Conversely, for the Court to rule in favor of a federalism limitation, common ground must exist that ties together the differing viewpoints of all five of the right-of-center Justices." I believe the that the facts of the case itself (whether or not interstate commerce was actualy involved) provided ample common ground, except that it was about marijuana. So I do not really disagree with his analysis. He is saying that a difficult to maintain majority in favor of federalism exists. What I am saying by using the word trending is that each and every time this majority shows itself it becomes that much easier for them to vote that way the next time. Therefore if you favor federalism you have to view Raich as an enormous setback.

Mark Brady - 6/8/2005

I think Orin Kerr's remarks are pertinent to this question. He writes:

The Rehnquist Court and the Mathematics of Federalism: Ernie Young's post at SCOTUSBlog raises a good point: while commentators tend to refer to "the Court" as a single entity, the Supreme Court consists of nine people with different views. In nonunanimous cases, "the Court" beomes a shorthand for the group of Justices in the majority.

In federalism cases, moreover, there is no clear majority on the current Court. Four Justices — Stevens, Souter, Ginsburg, and Breyer — more or less share the same basic view that the Court has little to no role enforcing federalism constraints. The other five Justices would impose some limits on the scope of federal power, but don't really share common ground on exactly what those limits should be.

Although classifying each Justice is quite difficult, a very rough first cut might be that Justice O'Connor tends to focus most on preserving a role for the states; Justice Kennedy on recognizing the dignity of the states and preventing federal overreaching; Rehnquist on restoring pre-1960s limitations on federal power; Scalia on finding and enforcing textual principles for limiting federal power; and Thomas on restoring an originalist vision of the Constitution. These approaches can overlap, and Justices might sign on to opinions that aren't exactly their cup of tea. But often they don't.

The mathematics of federalism on today's Supreme Court, then, is that the four Justices who do not favor judicial enforcement of federalism constraints only need one additional vote to form a majority. Conversely, for the Court to rule in favor of a federalism limitation, common ground must exist that ties together the differing viewpoints of all five of the right-of-center Justices. The odds are that the former will happen more often than the latter, which is why victories for federalism principles have tended to be rare and on relatively narrow (that is, symbolic) issues.

Keith Halderman - 6/8/2005

This is the first court in some time to strike down a law using the Commerce Clause as its justifcation. It had to do with guns near schools. At the time, I remember many people considering it a very significant ruling signaling that this court believed there were limits to federal power. When I spoke to Randy Barnett at the 2004 NORML conference he believed that the decision on the guns and schools law provided a strong precedent and reason for optimism concerning Raich. After this week's ruling the court has now obviously moved in the opposite direction, however, if the issue was not drugs that very well might not be the case.

Mark Brady - 6/8/2005

"And, if anyone does not believe that Gonzales v. Raich is part of the price we pay for our war on people who use certain kinds of drugs, then ask yourself this if issue had been anything other than marijuana would a Supreme Court trending towards a restoration of state's rights have acted in the same manner?"

Keith, are you suggesting that the current Supreme Court is "trending towards a restoration of state's rights"? And, if so, where is your evidence for that assertion?