Pot, Scalia and the 28th amendment…
Judicial activism has been a popular cause amongst both republicans and democrats over the last few years. The expansion of federal powers to the detriment of state rights is a familiar lament of conservatives. At the same time, democrats huff and puff that a takeover of the Supreme Court by the "right" is certain to lead to a rapid deterioration of civil liberties. Hence all the wonkish talk about "nuclear option", "filibuster", and "up or down" votes.
While this line of argument is generally valid (give or take a lie or two), the recent Supreme Court’s judgment on the legality of medical marijuana is a powerful reminder that, when it comes to drugs, traditional labels, as well as the Constitution, don’t really matter. In theory, the US Constitution has 27 amendments. In practice, it is also subject to what can only be called the 28 Amendment. Still unwritten, paraphernalia can only guess that it reads like this:
"In matter relating to the consumption of substances qualified as illegal drugs, Congress shall make any laws it wants, and all other sections of the Constitution shall be ignored by the Supreme Court."
The medical pot decision is a case in point. After years of conscious expansion of states’ rights by what can only be described as a coalition of conservative judges, the Supreme Court suddenly switches gear to endorse the expansion of federal powers. The majority decision states that the regulation aiming to effectively eliminates the medical marijuana legislation adopted by California is squarely within Congress's commerce power. Justice John Paul Stevens, writing for the majority, stated that Congress can regulate purely local activities that are part of an economic 'class of activities' that have a substantial effect on interstate commerce (if that does not cover anything under the sun…..). In a more interesting variant, Justice Scalia (the well known conservative duck-hunting buddy of Dick Cheney and supposed supporter of the integrity of the Constitution) stated: “Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce", a fine example of the Road to Serfdom in action, and a stance adopted by the Court in the 1940s to support the expansion of federal powers to implement FDR’s New Deal, for Reagan’s sake!!! (sorry, but paraphernalia needs to invoke the right God here).
Amazingly, the dissenters are known as pretty staunch conservatives, namely Rehnquist, O’Connor and (gasp!), Clarence Thomas…..
So, while John Walters will surely enjoy his power to put even more people in jail, Mrs. Raich, one of the plaintiffs, will continue to puff, stating: "I don't have a choice but to continue because if I stopped I would die". For the rest of us, let’s keep in mind that 28th Amendment. When it comes to drugs, it’s usually beyond Constitution, labels and politics.
As for born-again judicial activist Scalia, well, it may be good for him to remember that, if the Constitution is not a living organism, Mrs. Raich is (for now anyway).