June 13, 2005

Originalism for the left

By: James N. Markels

Can a Supreme Court decision unite the political divisions in our country? It may be possible, considering that both the Left and the Right came together last week to agree that the majority opinion in Gonzales v. Raich–which held that the federal government’s power to ban marijuana trumped a state’s decision to legalize it for medical use–was wrong.

It’s not surprising that the Right is upset about Raich. Despite the reputation of being more strident drug warriors, the Right has long worried about the broad expanse of power that the Court has read into the Commerce Clause of the Constitution. Although the Clause grants Congress power to “regulate commerce . . . among the several States,” the Court in Wickard v. Filburn (a New Deal-era case) held that the power over interstate commerce necessarily included the power to regulate intrastate commerce if such activity might affect the interstate market even slightly. Such an affront to federalism and states’ rights always makes conservatives nervous.

What is surprising, however, is the Left’s objection to the decision. All four of the “liberals” on the Court–Justices Stevens, Souter, Ginsburg, and Breyer–voted in the majority. To Justice Stevens, who wrote the majority opinion, the decision was an easy one: growing marijuana for medicinal use, even without any intention to sell or transport the product, would affect the interstate market for marijuana that Congress has decided to ban, and so under Wickard the federal government wins.

Much to the Left’s surprise, its own jurisprudence has necessarily led to this result. Raich merely upheld the New Deal decisions that allowed for the incredible growth in federal regulation that the Left has traditionally favored. Now that those regulations are found to reach terminally ill cancer patients and deprive them of a drug that has helped ease their suffering, suddenly Wickard doesn’t look like such a great deal after all.

Perhaps the Left expected the Court to pull another rabbit out of its hat–if the Court could find a right to abortion in “penumbras” of various amendments, why not a right to marijuana for the terminally ill? But that was too arbitrary and capricious even for the liberals on the Court to consider.

For the Right, the problem centers on the split between Justice Scalia, the conservative textualist who sided with the majority, and Chief Justice Rehnquist and Justices O’Connor and Thomas, who dissented. With President Bush having already suggested that he is looking to nominate to the Court a judge in the mold of Scalia and Thomas, their split on Raich should have conservatives thinking very carefully about which one they would rather have.

On one side, Justice Scalia’s concurrence with the majority was in deference to precedent, or stare decisis in legalspeak, signaling his general unwillingness to overturn decisions like Wickard. He distinguished two later pro-federalism cases, United States v. Lopez and United States v. Morrison, by arguing that the power of Congress “[t]o make all Laws which shall be necessary and proper” allowed the federal government to win this case because allowing state medical marijuana laws would otherwise severely undercut the national ban that Congress had the power to put in place.

On the other side, Justice Thomas laid out a textbook example of originalist jurisprudence, arguing that the drafters of the Constitution had no intention of the Commerce Clause being so broadly interpreted, and that the current reading by the Court eradicated the idea of a federal government with only “few and defined” powers. Instead of the Necessary and Proper Clause being a grant to allow Congress to reach beyond interstate commerce, Justice Thomas recognized it as a limitation as the founders intended. “One searches in vain for any hint of what aspect of American life is reserved to the States,” Thomas wrote–a sentiment the Left is only now beginning to appreciate.

Justice Scalia is probably right that state legalization of medical marijuana would ultimately hinder the national drug war, simply because these initiatives would make the public’s perception of marijuana less negative. However, the Left and the Right both seem to agree that Raich simply went too far in blessing the federal reach into the daily lives of Americans. Perhaps when the next vacancy on the Court arrives, the Left should take another look at Justice Thomas’ originalism. If the choice is between another textualist or another originalist, as President Bush seems to be indicating, the Left would do well to opt for the latter.

James N. Markels is an attorney and a regular columnist for Brainwash.

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