Difficult Case, Right Decision

Article excerpt

Byline: Bruce Fein, SPECIAL TO THE WASHINGTON TIMES

By a 6-3 majority in Gonzales v. Raich (June 6, 2005), the Supreme Court sustained the power of Congress to prohibit the home cultivation and use of marijuana for medicinal use. In dissent, Justice Clarence Thomas maintained the majority had crowned Congress with omnipotence under the Commerce Clause and reduced states to wards of the federal government contrary to the Founding Fathers.

Disputing Thomas, Justices John Paul Stevens and Antonin Scalia, in majority and concurring opinions, respectively, insisted Congress had reasonably concluded a blanket marijuana prohibition was needed to prevent local seepages into a booming (albeit illegal) interstate drug market.

Justices Stevens and Scalia were more persuasive. The constitutional remedy for a blunderbuss congressional antidrug crusade is more speech and statutory amendments, not a manufactured Supreme Court decree.

Article I, section 3 of the Constitution endows Congress with power "To regulate Commerce ... among the several States." Article I, section 8, clause 18 authorizes Congress to enact laws "necessary and proper" to effectuate or vindicate its regulation of interstate commerce. As Chief Justice John Marshall explained in McCulloch v. Maryland (1819), the "Necessary and Proper" Clause does not require strict necessity or indispensability, but only helpfulness in advancing a legitimate constitutional objective: "[W]e think that the sound construction of the Constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it."

The Commerce Clause has been regularly brandished to attack moral evils by denying the channels of interstate commerce as means of facilitation. In Hoke v. United States (1913), the court upheld the power of Congress to suppress the white slave trade by making criminal the knowing transportation of a woman or girl in interstate commerce for the purpose of "prostitution or debauchery, or for any other immoral purpose."

A congressional ban on the use of interstate commerce to conduct lotteries was found irreproachable in the Lottery Case (1903). And Congress used the Commerce Clause to outlaw racial discrimination in any place of public accommodation serving transient guests or purchasing products that moved in interstate commerce in Heart of Atlanta Motel v. United States (1964) and Katzenbach v. McClung (1964). The Raich litigation similarly stemmed from the longstanding national "war on drugs" launched by President Nixon.

Congress enacted the Controlled Substances Act (CSA) to curtail drug abuse and to suppress illicit trafficking in controlled substances, including marijuana. It was classified as a Schedule I drug because of its high potential for abuse and the lack of any accepted medical use. …