Pubdate: Thu, 09 Jun 2005
Source: Miami Herald (FL)
Copyright: 2005 Washington Post Writers Group
Contact:  http://www.miami.com/mld/miamiherald/
Details: http://www.mapinc.org/media/262
Author: George F. Will
Bookmark: http://www.mapinc.org/topics/Raich (Gonzales v. Raich )

HARD TO TELL WHO'S AN ACTIVIST

With the parties warring over the composition of the federal
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
Administration, of Diane Monson's home-grown marijuana plants, a case
about which the 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. This law -- 10 other states, but not Florida, have similar
ones -- runs contrary to the federal statute.

The two women argued against enforcement of that law, saying that the
private use of home-grown 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 home-grown wheat.

That wheat -- 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 that 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 home-grown 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 preempt 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: Richard Lake