It Really Wasn't About Marijuana At All -- The Answer

Here the decision:Gonzalez v. Raich. The split:

For John Ashcroft and his campaign to stamp out reefer madness among cancer patients:

Ginsburg
Breyer
Souter
Stevens
Kennedy

For allowing the terminally ill to use marijuana:

O'Connor
Rhenquist
Thomas

And Scalia? He's off by himself, voting with the majority but writing a separate (and amazingly tortured) opinion.

The reason for this split was, again, that the real issue was not medical marijuana, but the scope of Congress' power to regulate interstate commerce. This power provides the foundation for virtually every regulatory statute enacted by Congress in the last 75 years. As a consequence, those who believe in federal control and activism favor a broad interpretation of the commerce clause. Those who distrust federal power and favor federalism (i.e. greater power of the states to make their own rules free of federal interference) tend to want to read the commerce power more narrowly.

The federal Controlled Substances Act, which was the federal statute at issue in Gonzales, is based on the commerce clause. It is, literally, a ban on "commerce" in controlled substances. The Plaintiff medical marijuana users argued that the activities at issue in Gonzales did not involve commerce and did not significantly impact commerce. Thus, they argued that applying the prohibitions of the CSA to those activities in derogation of state laws authorizing them exceeded Congress' power.

The five most "liberal" members of the court rejected that argument. Why? Because, in the end, they were more interested in preserving federal power than they in vindicating the rights of states to depart from federal standards. The conservatives (Scalia excepted) would have accepted the argument for precisely the opposite reason.

Perhaps the wierdest thing about this whole case is that, in it, we have the most conservative Administration since Calvin Coolidge urging the court to confirm (and perhaps expand) federal power in derogation of State's rights. My how the worm has turned from 1964. Liberals have always favored federal intervention. After all, that's how civil rights law and other aspects of the liberl agenda was imposed on recalcitrant states. We no learn, hawever, that, despite their historic peaens to federalism, State's Rights and limited government, Conservatives are not actually opposed to federal power in principle. They are only opposed to liberals wielding it.