Once again I find myself, to my neverending astonishment, agreeing with Clarence Thomas, who observes in his dissent in Gonzales vs Oregon that the majority's opinion is diametrically opposed to their ruling just seven months ago in Gonzales vs Raich, a medical marijuana case. If you decide that Congress has the power to make it a crime for someone to cultivate a marijuana plant in their back yard with a doctor's prescription, there is just no way that you can then turn around and say that they don't have the same power to make it a crime for a doctor to prescribe a lethal dose of morphine and still retain any semblance of logical consistency. (I don't have time to look up the Raich opinion right now. I wonder on which side Thomas came down on that one.)
The Right Answer, it seems to me, is that Congress doesn't have the power to outlaw either one. The idea that someone growing a marijuana plant in their back yard for their own personal use necessarily has something to do with interstate commerce seems to me absurd on its face. But, of course, conservatives have long since abandoned the notion of limited government, especially when it comes time to legislate morality.
Justice Clarence Thomas is amazingly consistent and logical. He's more libertarian (and hence "radical") than Scalia is.
Thomas is very concerned about the commerce clause, and has asked, given how the court has ruled in the past, what *isn't* something that Congress can regulate by the commerce clause.
I don't think Scalia is nearly so consistent about fighting abuse of the commerce clause.
Post a Comment