by J.D. Tuccille
June 9, 2005


It's no surprise that the Bush administration is gloating over the U.S. Supreme Court's profoundly dishonest Gonzales v. Raich decision allowing federal authority to trump state medical marijuana laws. After all, most social conservatives are possessed by an all-consuming puritanism that gives them, in H.L. Mencken's words, "the haunting fear that someone, somewhere, may be happy." Concern that marijuana users may actually get pleasure from their drug of choice can be expected to overrule any quaint belief Bush fans still harbor in constitutional limitations on federal power.

More disappointing is the celebration of the Raich decision in some liberal circles. Sure, modern liberals traditionally interpret the federal government's constitutional authority "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes" as carte blanche to micro-manage even the most local of matters. But that seems an opportunistic delusion based on decades of past political success. It's easy to believe in unlimited power when you're the one exercising it. After five years of federal power in the hands of activist, state-worshipping conservatives, it's reasonable to expect liberals to remember that the commerce clause actually awards very limited power to the federal government, with states free to conduct their own experiments in democracy as long as they don't run afoul of those delineated powers, or tread on individual rights.

Medical marijuana ranks prominently among those local experiments and has been championed as a liberal (and libertarian) cause. Surely a newfound respect for federalism combined with support for medical marijuana laws would produce screams of outrage in liberal circles over the Raich decision.

In some cases, it has. The Chicago Tribune's Clarence Page pointed out, "in Gonzales v. Raich, a 6-to-3 majority has stretched 'commerce' to mean just what they choose it to mean..."

But some major liberal institutions remain wedded to the notion of unchecked federal power as an absolute good. After the Raich decision, The Washington Post editorialized:

The plaintiffs in Raich, patients who regard pot as essential medication for their conditions, contended that because their use of the drug is noncommercial and within a single state that tolerates medical marijuana, the federal government lacked the power to stop them. This may seem like an attractive principle, but consider its implications. Can Congress protect an endangered species that exists only in a single state and may be wiped out by some noncommercial activity? Can it force an employer who operates only locally to accommodate the disabled?

Was the Supreme Court majority correct in claiming that the Constitution permits the federal government to overrule state regulation of marijuana? The editors at the Post don't care; the Constitution may as well not exist for them. Even at a time when their political opponents control the federal government, they'd rather trade a win on medical marijuana through principled restrictions on federal power for the unrestricted authority to do what they wish at some uncertain point in the future.

The New Republic sounded off along the same lines:

Although the federal policy at issue may be open to question--we think Congress should reconsider its ban on the attempt by California and ten other states to allow medical marijuana in limited circumstances--the Supreme Court's deference to Congress's broad power to regulate the economy is an occasion to celebrate. Had the Court ruled otherwise, as a group of libertarian judicial activists urged, it would have encouraged a radical assault on Congress's power to regulate a host of issues, including crime and workplace safety....

The magazine criticized Justice Clarence Thomas, in particular, for writing in his dissent, "Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has 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 -- and the Federal Government is no longer one of limited and enumerated powers."

According to The New Republic, "As Stevens pointed out, Thomas's reasoning would also call into question Congress's power to regulate the possession and use of pot for recreational purposes, an activity that all states now prohibit."

That's true. So? The Supreme Court is supposed to rule on the constitutionality of government actions, not the desirability of those actions. If you don't like what the Constitution permits or doesn't permit, you can amend the thing. But there's no point to having a Constitution if you're going to demand that courts ignore it and instead base their decisions entirely on outcomes you like.

Five years into the Bush administration, 60 years after FDR, is it really all that necessary to explain that unrestricted government power has no ideology? It serves whoever holds office, and everybody loses an election from time to time.

Constitutional restrictions on federal power aren't nefarious plots to block the doing of good deeds; they're pragmatic rules to prevent democratic government from degenerating into a weapon for bludgeoning the opposition. The less people have to fear from electoral wins by their political enemies, the less reason they have to reject the legitimacy of the political system overall or resort to violence.

Unfortunately, it's clear that America's dominant political factions care about little more than the ability to wield absolute power -- and they see the Constitution as an inconvenient obstacle to be bypassed at all costs.

This column was published June 15, 2005 by Verde Valley Newspapers.

Ah well, and so much for the power of argument. So back you go to Full Automatic or to my home page.

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Copyright (c) 2004 Jerome D. (Il Tooch) Tuccille. All rights reserved. Reproduction in whole or in part in any form or medium without express written permission of Il Tooch is prohibited. Mess with me and Iíll use your polished skull as a beer mug.