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Tuesday
January 18, 2005

Ashcroft v. Raich by Jonathan Rick

In a 1996 referendum, California’s voters passed Proposition 215, codified as the Compassionate Use Act (C.U.A.). The C.U.A. legalized medical marijuana for seriously ill Californians, thus placing state law in direct conflict with federal law, the Comprehensive Drug Abuse Prevention and Control Act, or the Controlled Substances Act (C.S.A.). The C.S.A. classifies marijuana as a Schedule 1 drug that is unqualifiedly illegal unless part of an F.D.A. study. While we may argue for the relevance of the constitution’s supremacy clause or of individual rights, the instant issue before the U.S. Supreme Court is whether the C.S.A. exceeds the power of Congress under the commerce clause. (Read more...)
Discuss this Article (6 messages)

Post 0

Tuesday, January 18 - 7:58am

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Interesting,

However, you can just see righteous politicians anxiously waiting for scientists to extract a drug from the plant that could have the same effect with getting any enjoyment from it. Then they would be definitely forcing those pills down your gob with glee.

They would say, "Anything is better than you getting any enjoyment - especially from an illegal substance. Why else do you think I secretly go to a prostitute once a week to get myself flagellated? It's just like when I go to Church and repent my sins, only the pain lasts longer. Pleasure is evil, everyone knows that."

Post 1

Tuesday, January 18 - 9:59am

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Great stuff Jonathan,

I've been following this with interest, especially as libertarian legal theorist Randy Barnett was Raich advocate before the supremes. By all accounts he did a bloody brilliant job given the circumstances, so the verdict should be fascinating!

MH

Post 2

Tuesday, January 18 - 1:35pm

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Matt, all the next-day accounts I read of the oral arguments (my favorite is http://slate.msn.com/id/2110204/) made it clear that the court will very likely find for the federal government.

Post 3

Tuesday, January 18 - 2:45pm

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Jonathan,

Try this one http://www.volokh.com/archives/archive_2004_11_28.shtml#1101771936 from the Volokh Conspiracy legal blog (where Professor Barnett sometimes posts).

MH

Post 4

Tuesday, January 18 - 4:56pm

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Well, I take everything the 9th circuit says with a grain of salt. In this case though, this is a state issue but it can easily turn into a federal one though the commerse clause. I would argue that anything produced for personal consumption is automatically a state issue but we all know as soon as it goes commerical, with the internet and all it will fall under the commerse clause.

I usually worry when the Constitution is reinterperted but in this case we need a clear distinction to what the commerse clause covers because under the path we're on now; eventually the fed will cover everything produced and consumed in this country.

Post 5

Tuesday, January 18 - 9:40pm

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Excellent, Jonathan. The commerce clause has become an excuse to regulate anything that could, given the right circumstances, move. “So radical was this revolution that the commerce clause now must pertain to commerce.” Well, and humorously, said.

As you say in your second-to-last last paragraph, Congress should be vested with policy, not the courts. That’s true re: abortion and it’s true here, too.

However, what you say in the last paragraph is more important: “But whatever the means, the end is plain.”

I agree with you.

Jon