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Thomas on Marijuana

I am leery (2, 3, 4) of federal courts striking down even unlibertarian state laws, but I have no objection to the federal courts striking down federal laws that violate the federal constitution (however, I do accept Jefferson's view that the Congress and President have equal power and a duty to veto, to refuse to enforce, unconstitutional federal laws or action). Unfortunately, in the case GONZALES, ATTORNEY GENERAL, et al. v. RAICH et al. (full opinion), decided today, the Supreme Court held that the feds can prosecute marijuana users even if local state laws attempt to legalize marijuana, e.g. for medical use (as 10 states do). The Court held that the federal Controlled Substances Act was constitutional, since "Congress may pass laws regulating a state's economic activity so long as it involves 'interstate commerce' that crosses state borders. The California marijuana in question was homegrown, distributed to patients without charge and without crossing state lines."

This decision, while unfortunate, is predictable, and just goes to show how naive are centralist libertarians who put their faith in the federal courts and who don't mind the courts having, or assuming, ever more jurisdiction over various areas of life and state policy. [My friend Tibor Machan takes me to task in the comments for not naming names. I have addressed this in a separate post.]

A dissent by Justices Sandra Day O'Connor, Clarence Thomas, and Chief Justice William H. Rehnquist disagreed, and would have allowed the states to set their own rules. Thomas's separate dissent clearly states: "Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers."

Once again, Clarence Thomas illustrates my claim (2) that conservatives—at least, conservative judges—tend to be better on economic liberties than liberals, and even better on most personal liberties, like freedom of speech. War is a big issue and the Republicatns are arguably more warlike especially of late than Democrats (although I would not say the Dems really opposed the Iraq war; and they did help get us into WWI, WWII, and Vietnam, and they now claim Lincoln as one of their own, so I count the War to Prevent Southern Independence as a democrat war too). But conservatives, it seems to me, are somewhat better than liberals on economic issues; and slightly better on personal issues (leaving abortion aside, which is a debatable issue in any event).

The conservative justices on the Supreme Court tend to be better than, or just as good as, the liberals, on free speech issues, for example—conservatives are better than liberals on commercial free speech; and the chlling effect on free speech from liberal programs such as affirmative action, antidiscrimation laws, etc., has been tremendous. Rehnquist wrote the flag burning opinion. And here, they are better even on the war on drugs.

For some good, libertarian legal-constitutional analysis of the commerce and necessary and proper clauses, see the following articles by Randy Barnett (all available here): New Evidence of the Original Meaning of the Commerce Clause The Original Meaning of the Commerce Clause Necessary and Proper Original Meaning of the Necessary and Proper Clause


Stephan Kinsella

Stephan Kinsella is an attorney in Houston, director of the Center for the Study of Innovative Freedom, and editor of Libertarian Papers.