Medical marijuana decision: Don't blame commerce clause
In the post below, I warn those of us who support the New Deal not to be lured by the siren song of the dissents of O'Connor, Thomas and Rehnquist in Gonzales v. Raich, No. 03-1454 (2005).
First, no one should be surprised by this decision overturning state laws allowing for medical marijuana usage. Back in 2001, the Supreme Court unanimously held (in an opinion witten by Clarence Thomas) that marijuana has no legal "medical" use, which is an important factor for any advocate of state medical marijuana laws. See: US v. Oakland Cannibis Buyers' Cooperative, 532 U.S. 483 (2001).
The Court's decision in Gonzales v. Raich is striking by its failure to consider overturning that decision or even bother discussing it. In reading the majority opinion overturning the state medical marijuana laws, those who advocate for such laws should carefully read footnote 37 of the opinion. The footnote states that the majority of Justices recognize that if the Court found the medicinal or theraputic value of marijuana was sufficiently strong, such a finding "would cast serious doubt on the accuracy of the findings" that make marijuana a completely illegal substance throughout the country and "would place all homegrown medical substances beyond the reach of Congress' regulatory jurisdiction."
Therefore, focusing attacks on the Court's jurisprudence as to the "commerce clause" is dangerously wrong. The key is to get the Court to overturn the Oakland Cannibis decision and then the non-econoimc privacy and health and safety issues may trump the plenary power of Congress to regulate "commerce" to the extent one is growing marijuana in their own home or back yard and using it only for oneself.
If anyone finds my view incorrect, I would only ask them to read the dissenting opinions from O'Connor and Thomas, which will reveal that neither of those justices are concerned with the facts regarding the theraputic value of medical marijuana. They are primarily interested in pushing their ideology that would overturn a broad reading of the "commerce clause," which, in turn, would undermine the ability of both state and federal governments to pass laws regarding economic issues.