When Winning is Losing

In December I wrote a post about when Losing is Winning about the oral arguments in medical marijuana case ASHCROFT (now Gonzales) V. RAICH expecting that Raich would win. This week the Supreme Court handed down a decision for Gonzales.


The question before the court in the meaning of the jurisdiction granted by the Constitutions Interstate Commerce Clause. The obvious intent of having restricting the power of the federal government to interstate commerce is that there is such a thing as intrastate commerce, which is not the province of the Congress to regulate. In the notorious Wickard case in the 1930’s the Supreme Court ruled that since wheat grown for to use on one’s farm, and not for resale, had a theoretical possibility of causing a trivial effect on interstate commerce, it fell under the interstate commerce clause, making the distinction between interstate commerce and intrastate commerce meaningless.

Raich was claiming that while the Congress could regulate marijuana in interstice commerce purely home grown marijuana, which was not going to be resold, was not in interstate commerce. This was a perfect opportunity to overturn Wickard, but the court did not take it.

It may seem that a victory on drug control is a good thing the on this issue it is actually a loss for an effective constitutional government.