GONZALES, ATTORNEY GENERAL, et al. v. RAICH (6-3) upheld federal drug policy that targeted state sanctioned medicinal use of marijuana that was home grown, not part of the stream of interstate commerce, and regulated by the state to avoid other use of the drug. The decision is an obvious matter of debate in the blogsphere with various viewpoints, including a defense of Justice Scalia's concurrence, over at SCOTUSBlog.
First off, the legislation is bad policy. Talk Left addresses some reasons including the fact that possession is less liable to get you into trouble than home cultivation, so illegal sales might be the logical thing for the medicinal user (such as the talk show host Montel Williams) to do. This, of course, clearly involves marijuana from interstate commerce. Also, one should support federal law that would make medicinal use an affirmative defense.
In fact, the majority probably supports such a policy. "But perhaps even more important than these legal avenues is the democratic process, in which the voices of voters allied with these respondents may one day be heard in the halls of Congress." In fact, the justices might be honored for their principled stance. The liberals (along with libertarian Justice Kennedy) followed doctrine, even when the policy choice might have troubled them. Ditto the conservatives, even though drug use was involved.
Some wonder why the majority did not say the same thing in Lawrence v. Texas (sodomy) though commerce is different from individual rights. The point has some bite to it all the same because one way to protect such rights is to restrain federal power. This is a core value of federalism, not just a means to advance racism. A consistent libertarian stance, especially when dealing with drug policy, has something going for it.
The supposed inconsistency of Justice Scalia was also on display (but see Ann Althouse in the SCOTUSBlog debate). As the previously cited conservative/libertarian voice noted:
Justice Scalia's concurrence, unlike Justice Thomas's dissent, does not address the original meaning of the Commerce Clause. This reflects a pattern with Scalia, apparent also in his affirmative action, First Amendment, and other opinions: he is much more likely to resort to originalist arguments when they can be used to undermine Warren Court precedents that conflict with his deeply held moral and political views than when such arguments would either undermine his political views or challenge precedents that are not on the social conservative (tempered, as in First Amendment cases, by Scalia's academic elitist solicitude.
Justice Scalia is not as consistent and principled as some of his supporters seem to think. I think Althouse does have a point though, since Scalia really was never a hard core state rights advocate in respect to the Commerce Clause. He is a strict believer in state sovereign power, yes, including not forcing them to act. Also, he supports a somewhat limited view of Section Five of the 14th Amendment. Still, Justice Scalia is not on the level of Justice Thomas, and never claimed to be. Thus, his concurrence was pretty tame ... "nuanced" (to use his word) in fact. Not quite like him, suggesting this matter does not drive him too much.
As to the opinion itself, it is just not surprising. One might suggest it's because of the drug policy question, but again, the Supreme Court (even the Rehnquist Five) have not been hard core federalists when it comes to federal power. I'm not sure if saying they are only "symbolic" federalists is quite fair. They did seriously limit congressional power to protect certain minorities, including the handicapped and religious believers. And, it restrained federal power over states in certain respects, if somewhat narrowly. Nonetheless, a large opening was allowed, including commerce power. This is but par for the course.
Still, the overall principles of some its recent cases can be used to overturn this federal policy. Justice O'Connor's dissent does just that: the marijuana is locally grown and used, and the state regulates its use to make sure it stays that way. Surely, there will be some sort of leakage, but commerce power would be strong indeed if that is all it took. National drug policy opposes the recreational use of drugs, not state sanctioned/controlled medical use. But, let's take the slippery slope offered by the majority -- even recreational use that is purely local (a less narrow range of activity for sure) is not really the federal government's overall concern.
Justice Thomas dissented separately to offer his originalist take, which is interesting reading and all, but pretty besides the point. Two hundred years has passed and the evidence can be taken many ways. You are not going to do a major reworking of commerce jurisprudence, nor should one really try. Though it is no easy case (it is ultimately a policy misstep), it is better to take things as a matter of degree. This is overall is a local matter and should be left to the states. The fact that the states traditionally handled such regulation is of some interest as is the broad national power that result if the majority is accepted. But, the most compelling reason to dissent is something of a balancing test.
And, though not a matter immediately at issue, the overall liberty interest involved helps settle matters. One might even suggest it is part of the equation in determining if this is a "necessary and proper" use of federal power. The "necessary" part is quite debatable ... the "proper" part should factor in the liberty interests at stake. The majority noted that we have a federal regulatory scheme for medicine, but it does not mean allowing some use of the states as laboratories is not only allowed, but compelled by the constitutional scheme.
At the end of the day, however, the problem goes back to the policy itself. Unconstitutional or not, it is bad policy, and should be stopped or interfered with in any (reasonable) way possible. Let's hope that now that the government has their authority confirmed that they will not use it to harm too many people.