Mansfield Fox

Law student. Yankees fan. Massive fraggle. Just living the American dream.

Monday, November 29, 2004

The Highest Court in the Land

If only to cause suspicion, I'm going to follow up a post on junk food with a post on pot. (And just so you know, my dinner was delicious.)

I think Dahlia Lithwick is being too hard on the Supremes for their evident unwillingness to rule in favor of medical marijuana in Raich v. Ashcroft. She takes the Court's conservative majority to task for being unwilling to live by its federalist principles when it doesn't like the substantive outcome:
...should the court's staunchest conservatives get away with being for states' rights only when the state in question isn't California? No. Will they? Oh, you can bet your bong on it.
Not to dwell overly on semantics, but Raich isn't a "states' rights" case. No one is arguing that the state of California ought to be able to create positive rights that preempt the application of otherwise legitimate federal law. That would be, in effect, nullification, an issue whose constitutionality was settled, I'd like to believe, during the Jackson Administration, or at the very least after the Civil War.

The issue in Raich is instead one of enumerated powers and the Commerce Clause, of the limits that the Constitution places on the power of the federal government. The question is whether a small amount of marijuana, produced for private use by the grower or given free of charge, is "interstate commerce" that can be regulated by the Congress. (It's interesting to note that you didn't need California to pass a Compassionate Use Act, or anything like it, to give rise to this issue.)

The Court has developed a "states' rights" jurisprudence of sorts, but it's mostly about state sovereign immunity, the (wrong-headed in my view) idea that the Eleventh Amendment insulates the states from virtually all lawsuits to which they don't consent. Even the Rehnquist Court isn't looking to repeal the Supremacy Clause.

Personally, I'd like to see people like Mrs. Raich be able to use pot for relief from their symptoms. For what it's worth, I think marijuana should be legal and that the whole of federal (and state) drug policy is badly misconceived. That said, I think the Court ruling for Raich would be a big mistake. I can't see how you could do it in any kind of principled way that wouldn't set up a situation in which, down the road, federal prosecutors had to prove federal jurisdiction in the facts of each prosecution.

Raich is, I think, a different kind of case from Lopez and Morrison, the principle cases Lithwick is using to accuse the conservatives of hypocrisy. The defendants in those cases were arguing, in effect, "What I did isn't the kind of stuff that's 'commerce' as the Commerce Clause understands it." It's a kind of "theory of the forms" of constitutional law. The world is divided into abstract categories. Some (growing wheat) are "commerce"; some (possessing a gun) aren't. Raich isn't arguing that growing and possessing marijuana aren't "commerce" (she's not trying to invalidate the entire marijuana component of the War on Drugs); she arguing that growing and possessing marijuana in the amounts that she did, or in the manner that she did, isn't commerce, or at least isn't interstate commerce. She's asking in effect for the right to a factual determination as to whether her specific activity was actually interstate commerce, and to be exempted from prosecution if it isn't.

Pretty soon, every federal criminal defendant will want a similar determination, if only to delay and disrupt their prosecution. The principles laid down in Raich can't, after all, be cordoned off to cases involving sick women seeking relief in pot-laced zucchini bread. No federal criminal statute will be presumptively constitutional when applied; its constitutionality will have to be re-litigated again and again in every case, since every case will have different facts that may or may not actually give the federal government jurisdiction under its enumerated powers.