When Losing is Winning

Jonathan Alter in NRO brings up an interesting question of jurisprudence.


In ASHCROFT V. RAICH the Supreme Court has heard oral arguments that the federal government does not have the authority to prohibit the states from allowing “medical marijuana.” Surprisingly, he thinks this is a good idea from a conservative point of view.


There are two issues here.

Assuming the Federal Government has jurisdiction, should it regulate "medical marijuana"?

Does the Federal Government have jurisdiction to regulate in this area?

This is an interesting problem.

Most conservatives would say to the first one that the answer yes, marijuana should be a regulated as a controlled substance. This is a potentially dangerous substance, not only to ones self but others around the user. Smoked marijuana does not come close to meeting the stringent FDA safety standards. One can already get the active ingredient in prescription pills with measured doses and manufactured to minimize side effects, especially those associated with smoking, but probably more significant, achieving pain relief with minimum risk of having ones judgment impaired by getting to high. Unless this is a subterfuge to obtain recreational marijuana there is no reason for “medical marijuana.”

On the other hand they would answer the second question that the governments claim that this is regulated under the interstate commerce clause is a complete misreading of the plain English language meaning of that clause. If it never crosses a state boundary - how can it be interstate commerce?

Many liberals take the opposite view. At least some recreational drugs, if not all, should not be regulated at any level of government. However they think that the interstate commerce clause is an authorization to regulate everything that can be construed as effecting commerce.

Ironically, despite an initial enthusiasm for the courts decision, many liberals (except those floating off in haze of marijuana smoke) may come to dislike this decision. The authority for much federal legislation that liberal’s support requires a much broader interpretation of the interstate commerce clause than the court took in this case. If lower courts and the Supreme Court site this as the precedent we should see a roll back in the one sided interpretation of the interstate commerce clause that has been in effect since the 1930’s, when the Supreme Court in a very similar case ruled that wheat grown for home consumption was covered by the interstate commerce clause.


TM Lutas gets to the heart of the matter, what do we have if the Supreme Court does not take the Constitution seriously? Fortunately, this sounds like it is going in the right direction.