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Dissenters in Gonzales v. Raich

Justice O'Connor, joined by Justices Rehnquist and Thomas:

There is simply no evidence that homegrown medicinal marijuana users constitute, in the aggregate, a sizable enough class to have a discernable, let alone substantial, impact on the national illicit drug market–or otherwise to threaten the CSA regime. Explicit evidence is helpful when substantial effect is not “visible to the naked eye.” See Lopez, 514 U.S., at 563. And here, in part because common sense suggests that medical marijuana users may be limited in number and that California’s Compassionate Use Act and similar state legislation may well isolate activities relating to medicinal marijuana from the illicit market, the effect of those activities on interstate drug traffic is not self-evidently substantial.

The Government has not overcome empirical doubt that the number of Californians engaged in personal cultivation, possession, and use of medical marijuana, or the amount of marijuana they produce, is enough to threaten the federal regime. Nor has it shown that Compassionate Use Act marijuana users have been or are realistically likely to be responsible for the drug’s seeping into the market in a significant way.

Justice Thomas did not join in this part of the dissent.

We would do well to recall how James Madison, the father of the Constitution, described our system of joint sovereignty to the people of New York: “The powers delegated by the proposed constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite… . The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.” The Federalist No. 45, pp. 292—293 (C.Rossiter ed. 1961).

If I were a California citizen, I would not have voted for the medical marijuana ballot initiative; if I were a California legislator I would not have supported the Compassionate Use Act. But whatever the wisdom of California’s experiment with medical marijuana, the federalism principles that have driven our Commerce Clause cases require that room for experiment be protected in this case. For these reasons I dissent.

Clarence Thomas' separate dissent:

Respondents’ local cultivation and consumption of marijuana is not “Commerce … among the several States.” U.S. Const., Art. I, §8, cl. 3. By holding that Congress may regulate activity that is neither interstate nor commerce under the Interstate Commerce Clause, the Court abandons any attempt to enforce the Constitution’s limits on federal power. The majority supports this conclusion by invoking, without explanation, the Necessary and Proper Clause. Regulating respondents’ conduct, however, is not “necessary and proper for carrying into Execution” Congress’ restrictions on the interstate drug trade. Art. I, §8, cl. 18. Thus, neither the Commerce Clause nor the Necessary and Proper Clause grants Congress the power to regulate respondents’ conduct.

....The majority prevents States like California from devising drug policies that they have concluded provide much-needed respite to the seriously ill. It does so without any serious inquiry into the necessity for federal regulation or the propriety of “displac[ing] state regulation in areas of traditional state concern,” id., at 583 (Kennedy, J., concurring). The majority’s rush to embrace federal power “is especially unfortunate given the importance of showing respect for the sovereign States that comprise our Federal Union.” United States v. Oakland Cannabis Buyers’ Cooperative, 532 U.S. 483, 502 (2001) (Stevens, J., concurring in judgment). Our federalist system, properly understood, allows California and a growing number of other States to decide for themselves how to safeguard the health and welfare of their citizens. I would affirm the judgment of the Court of Appeals. I respectfully dissent.

< Supreme Court Rules Against Medical Marijuana | Medical Marijuana: Support the Truth in Trials Act >
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    Re: Dissenters in Gonzales v. Raich (none / 0) (#1)
    by pigwiggle on Sat Dec 17, 2005 at 12:59:45 PM EST
    the federalism principles that have driven our Commerce Clause cases require that room for experiment be protected in this case. Hear, hear. Reagan would have been proud.

    Re: Dissenters in Gonzales v. Raich (none / 0) (#2)
    by DawesFred60 on Sat Dec 17, 2005 at 12:59:45 PM EST
    The show must go no! and if marijuana isn't a show nothing is.

    Re: Dissenters in Gonzales v. Raich (none / 0) (#3)
    by BigTex on Sat Dec 17, 2005 at 12:59:45 PM EST
    Sadly, the majority got it right today. As much as I dislike the thought of medical marijuana, espically in the back injury case - I've got perminate back damage from auto accidents and can call BS on that one from personal experiance - this should be an area where states are free to set their own laws. Unfortinuatley, the Wickard Aggrigation Principle applies, and they cannot. The Court came to the right decision, but the decision is a horrible one.

    Re: Dissenters in Gonzales v. Raich (none / 0) (#4)
    by Talkleft Visitor on Sat Dec 17, 2005 at 12:59:45 PM EST
    if you do not believe in any limitations on federal power, it is the right decision-just not the constitutional one. it apparently evolved to allow unlimited federal power under the commerce clause.

    Re: Dissenters in Gonzales v. Raich (none / 0) (#5)
    by Talkleft Visitor on Sat Dec 17, 2005 at 12:59:45 PM EST
    Ain't law by construction great.

    Re: Dissenters in Gonzales v. Raich (none / 0) (#6)
    by Talkleft Visitor on Sat Dec 17, 2005 at 12:59:45 PM EST
    Comparing this to recent civil rights cases, there seems to be a couple of justices for whom the reach of the commenrce clause depends on how much they like the regulation in question . . .

    Re: Dissenters in Gonzales v. Raich (none / 0) (#7)
    by Talkleft Visitor on Sat Dec 17, 2005 at 12:59:46 PM EST
    Oh exactly.

    Re: Dissenters in Gonzales v. Raich (none / 0) (#8)
    by SeeEmDee on Sat Dec 17, 2005 at 12:59:46 PM EST
    So...am I correct in assuming that for all intent and purposes the ability of the states to regulate commerce - and just about anything else - within their respective boundaries has just been nullified? That's what Justice Thomas's secondary dissent seems to imply. What does this make state legislators, then? Window dressing?

    Re: Dissenters in Gonzales v. Raich (none / 0) (#9)
    by roy on Sat Dec 17, 2005 at 12:59:46 PM EST
    So...am I correct in assuming that for all intent and purposes the ability of the states to regulate commerce - and just about anything else - within their respective boundaries has just been nullified?
    Not nullified, just subject to the whim of federal legislators.

    Re: Dissenters in Gonzales v. Raich (none / 0) (#10)
    by Talkleft Visitor on Sat Dec 17, 2005 at 12:59:46 PM EST
    actually, the whim of legislators and the personal opinions of the Courts.

    Re: Dissenters in Gonzales v. Raich (none / 0) (#11)
    by SeeEmDee on Sat Dec 17, 2005 at 12:59:46 PM EST
    What I am trying to say is this: A few years back, an Executive Order 13083 which would have essentially eliminated the States as political entities, almost was passed.. The Congress raised Hell about it and the matter was dropped. The Executive Order was oddly named 'Federalism', which seemed to go against what I think I understand of 'federalism' as being giving powers back to the states after having been held by the federal authority for so long. So...did the Supreme Court just do what Bill Clinton tried to do and failed?