- I think we are at a crucial tipping point in the swing of judicial philosophy, and it's possible that a decision for Raich will signal a significant shift in momentum toward a more formal reading of the Constitution. For almost a century, judicial decisions have tended to reflect judges ideas of "justice," rather than a strict interpretation of what our Constitution and laws say. This trend tended to diminish the concept of Federalism, as Congress was granted ever more increasing powers in excess of those explicitly enumerated in the Constitution. Now, the Constitution does not clearly say that Congress has the power to regulate marijuana, especially when it has been prescribed by a doctor in accordance with state law. By agreeing with Raich, the Supreme Court would be reversing the tide, and start consolidating the trend toward real Federalism. There is a reason why this decision is so particularly important, compared to other recent decisions supportive of Federalism (like the striking down of the Gun Free School Zones Act), and that is this:
- There is a bit of irony in this case which distinguishes it substantially from several other recent Federalism cases. In this case, the issue being argued is one which, historically, has been anathema to conservatives. Ever since drug use became commonplace in the 1960's, the "right" to use drugs has been a cause celebre for the far left. I would bet a lot of money that readers of High Times magazine are overwhelmingly liberal. And yet now, conservatives are lining up behind the Raich case in droves, because of what it will do to advance the cause of Federalism. (It is also true that legalization of drugs has become accepted policy in certain conservative circles recently, but most liberals probably do not know this). For a long time, I have maintained that liberals have thought that conservatives have been somewhat disingenuous in their support of strict interpretation, because the effect of strict interpretation has largely supported conservative causes. Now, however, the public will see Conservatives backing a case which has historically given them fits. It will finally become clear to many people, that many conservative thinkers care more about the principle of strict interpretation that the substance of what it might accomplish. It will then occur to people that we are serious.
Wednesday, December 1, 2004
Two thoughts on the medical marijuana case being argued before the Supreme Court right now: