Pubdate: Thu, 09 Jun 2005
Source: Eagle-Tribune, The (MA)
Copyright: 2005 The Washington Post Company
Contact:  http://www.eagletribune.com/
Details: http://www.mapinc.org/media/129
Author:  George F. Will, Washington Post Writers Group
Cited: Gonzales v. Raich ( www.angeljustice.org/ )
Bookmark: http://www.mapinc.org/mmj.htm ( Cannabis - Medicinal )
Bookmark: http://www.mapinc.org/opinion.htm ( Opinion )

JUSTICES AREN'T ALWAYS PREDICTABLE

WASHINGTON - Consider the recent case arising from the  destruction, by 
agents of the Drug Enforcement Agency, of Diane Monson's home-grown 
marijuana plants, a case about which the Supreme Court's two 
most  conservative justices, Antonin Scalia and Clarence Thomas, disagreed.

Monson, and another woman using home-grown 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 that the private use of home-grown marijuana has 
nothing to do with interstate commerce, hence Congress has no 
constitutional power to  regulate it. Monday the Supreme Court disagreed. 
In a 6-3 ruling, it held that  Congress' claim to exclusive regulatory 
authority over drugs, legal and illegal,  fell well within its 
constitutional power to regulate interstate commerce. 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 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." She was 
joined by Chief Justice William Rehnquist, who  wrote the court's opinion 
in a 1995 case in which 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, adding, "If 
Congress can regulate  this ... then it can regulate virtually anything" 
including "quilting bees ..  and potluck suppers," and creating a federal 
government that is "no longer one  of limited and enumerated powers."

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: Jay Bergstrom