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Another Attack on Federalism

The National Review Online has an excellent article this morning summarizing what is at stake in the Ashcroft v. Raich case that is before the Supreme Court this week.

It is a unique circumstance of the American experiment that many are forced to endorse out of self-interest certain political positions to which they are opposed. Unlike European democracy, which was excruciatingly and incompletely cleaved from autocratic political traditions, our Constitution was the result of an unblinking and (mostly) unencumbered assessment of political power and structures. The greatest American contribution to the advance of Western Civilization is surely the structure of our political institutions and the respect we have for it. Federalism is the cornerstone of this structure, and even those who abhor recreational drug use must shuffle over and line up behind the petitioner in this case in the name of preserving the system that makes the ultimate political triumph of a culture of life possible.

Another excellent feature of our system is the independence of our judiciary, and whether the Rehnquist Court’s rediscovery of federalism has been clear (United States v. Morrison, U.S. v. Lopez) or baffling (Florida v. College Savings Bank), we must applaud the Court’s defense of the Constitution. Steadfast in the face of such popular sentiments as keeping guns out of schools and protecting women from violence, the Court has taken the higher road in many cases. Despite the ridicule Ms. Raich probably deserves, and the possible jubilation of recreational drug users, we can expect the Court, at least in this situation, to serve the greater good.

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Comments (3)

Jason A.:

I agree wholeheartedly, except if I were a justice I would hold that as applied, the CSA is constitutional unless we wanted to overturn Wickard v. Filburn.

Medical marijuanan is distinguishable from guns and violence against women. This is a fact-specific inquiry, so I suppose it matters how economic in nature you think med marijuana actually is. That being said, I hope I am wrong.

Like you said, we may have to digest some unpalatable results if Raich wins, especially the severe limitations this holding will put on federal abortion legislation. But in the end, I agree a greater good is preserved by upholding federalism.

Jason A.:

Oh, and see the post at this address:

http://balkin.blogspot.com/2004/12/thought-experiment-about-raich-v.html

by Yale prof. Jack Balkin.

Niemann:

I don't want to overturn Wickard. Well, actually I do, because the "drop in the bucket" logic there is poison. But I know we can't, and I'll get over it. But Wickard should be the end of the line for the Commerce Clause. If not for the Depression, Wickard gets decided the other way and we still have a reasonable standard approach. There is no Depression now. The judicial question should be, "Does this activity reasonably affect national commerce interests?" and should not be, as the government argued in Lopez and Morrison, "Is there any way in which this could affect national commerce interests (because if so, we can wield it as a truncheon)?"

The trouble I have is Congress exercising police powers under the guise of the Commerce Clause. Some dissent somewhere makes this point well, but I just can’t quite recall it. Assessing the CSA in originalist terms, it is clearly an act of Congressional usurpation. There is no possible justification for such an intrusion into State sovereignty in the text of the Constitution. Only if you put the Commerce Clause on steroids (and the Court has served the role of East German Olympic Committee admirably over the years) can Congress take such a step. Now that we have for generations had this 400 lb Heidi the Shot Putter stuffing her hairy girth into the evening gown of constitutional law (to extend a poor metaphor far beyond it utility), we have learned to be comfortable escorting her to the ball. But that doesn’t make her natural. To the extent that CSA regulates an area where there is no state power exerted and there is some clear impact on national economic interests, I’ll give Heidi a big wet kiss and suppress my gag reflex. But there is no way she is coming home with me to my state or locality. If CSA extends to Raich, then it trumps state licensing of doctors and other professionals as well as local law enforcement. I don’t care if the Court says that Congress must amend to add logical exemption for duly licensed doctors prescribing, or to say that there is lower limit on what amount constitutes possession for purposes of CSA. There may be other ways out of this impasse, as well. But Raich’s actions involve no money changing hands and a duly enacted state law.

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This page contains a single entry from the blog posted on December 1, 2004 12:11 PM.

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