by Matt Barr

Medical marijuana

I haven't mentioned Raich before here except to point out this gem from the oral argument:

[Justice] Stevens: If you reduce demand, then you will reduce prices? Wouldn't it increase prices?

[Prof. Randy] Barnett: No, if you reduce demand, you reduce price.

Stevens: Are you sure?

Barnett: Yes.

The Court upheld federal power to prosecute entirely local medical marijuana users under federal drug possession laws (or, as reported on Findlaw Legal News as of this writing, "Jackson jury includes parents and a sex offender's grandmother") today. People who know me will think I'm taking my cue from Mr. Justice Scalia on this, but I tend to agree with his concurring opinion: "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."

In other words, the Necessary and Proper Clause authorizes Congress to make laws necessary and proper to the regulation of interstate commerce, regardless of whether the application of a particular law in a particular circumstance -- here, the prosecution under controlled substances laws of personal growers and users of marijuana -- itself involves interstate commerce.

Now, I think this is unfortunate, in that I don't really think marijuana should be illegal at all, and even if it should the federal government shouldn't be the one prohibiting it, and even if it should prosecuting medical users is obscenely unjust. But you go to court with the constitution you have, not with the constitution you would wish for.*

It's worth noting that this result, unlike many of the Supreme Court's higher profile cases lately, leaves the electorate free to change the law to its satisfaction. Even so, it is still a federal law, and the larger the constituency the harder it is to get anything done, thus the appeal of federalism to democracy lovers. But it's a bedrock principle of this blog that the constituion mustn't conform to the result in court you favor, it must be the other way around.

* I've used this expression enough that I think I'll make it a tagline of this blog. For the uninitiated, it's a ripoff of a Sec. Rumsfeld quote addressing troops at Camp Buehring in northeastern Kuwait in December. Let me know what you think.

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