Supreme Court justice David Souter proved he had no business serving on the high court with his ridiculous stance on Gonzales v. Raich in June, 2005. To accommodate the neo-con views of two of history’s worst attorney generals, John Ashcroft and Alberto Gonzales, and to federally prohibit Angel Raich from her life-saving medication, Souter bent logic to a ludicrous degree.
Constitutionally, the federal government should have no drug laws. Remember, an amendment to the constitution was required to prohibit alcohol in that doomed experiment. Other federal drug restrictions, such as laws prohibiting cannabis, should require similar changes to the constitution. But in the well known drug war exemptions to constitution, the federal government has assumed total control over cannabis and declared millions of its citizens to be federal criminals.
Voters in several states, including California, have chosen to provide medical marijuana exemptions to state drug laws. To allow federal control, even over the wishes of state voters, justices were asked by Alberto Gonzales’ government lawyers to determine that the intra-state free distribution of medical cannabis was somehow inter-state commerce, even though it did not involve other states, nor did it involve commerce.
Incredibly, 6 “justices,” including David Souter, went along with this tortured logic. Some, like Scalia, predictably always vote for extending government control over the individual. But even Clarence Thomas, who nearly always mirrors Scalia’s vote, was outraged by this fiction that free activity within a state comprised interstate commerce. He stated:
- If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption (not because it is interstate commerce, but because it is inextricably bound up with interstate commerce), then Congress’ Article I powers — as expanded by the Necessary and Proper Clause — have no meaningful limits. Whether Congress aims at the possession of drugs, guns, or any number of other items, it may continue to “appropria[te] state police powers under the guise of regulating commerce.“
Clarence Thomas went on with a couple of remarkable statements:
- If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison’s assurance to the people of New York that the “powers delegated” to the Federal Government are “few and defined”, while those of the States are “numerous and indefinite.”
- Respondent’s local cultivation and consumption of marijuana is not “Commerce … among the several States.”
- Certainly no evidence from the founding suggests that “commerce” included the mere possession of a good or some personal activity that did not involve trade or exchange for value. In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana.
Clarence Thomas was joined in these rare moment of clarity by now absent Chief Justice William Rehnquist and Sandra Day O’Connor.Tragically, both these justices have now been replaced by Bush big government-conservatives John Roberts and Sam Alito. By all appearances, both take marching orders from Antonin Scalia.
To their shame, 6 justices voted in favor a giving federal agents the power to smash down the doors, raid the homes and destroy the lives of sick people growing a medication legal in their state. Joining Souter in this travesty of justice were Stevens, Kennedy, Ginsburg and Breyer. Ever the cheerleader for more obtrusive government, Antonin Scalia wrote a concurrence on his own.
Technically Gonzales v. Raich a big win for the forces of cannabis prohibition, but really has had little impact. Four years later, on the ground in California, medical cannabis is flourishing. One of the biggest backers of this new form of tax-paying intrastate commerce is California’s franchise tax board.
Alarmingly, one of the names circulating for Souter’s replacement is new Solicitor General Elena Kagan. Only weeks into her new job, Kagan (and Obama) disappointed civil libertarians with a new challenge to Michigan v. Jackson. Pathetically, the review of Michigan v. Jackson was instigated at the the behest of new George W. Bush neo-con Supreme Court appointee, Samuel Alito. I wonder which way he will vote? Someone so eager to extend the restriction of personal rights as Elena Kagan has shown so early in her job, would make for an nomination abomination for Supreme Court justice.
To rescue a bit of fairness and balance to the court, the president should appoint a justice nauseated by the injustice of the drug war, with its trampling of the constitution. Barack Obama, I believe former judge and prosecutor Jim Gray from Orange County is available.