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Source link: http://archive.mises.org/3678/thomas-on-marijuana/

Thomas on Marijuana

June 6, 2005 by

I am leery (2, 3, 4) of federal courts striking down even unlibertarian state laws, but I have no objection to the federal courts striking down federal laws that violate the federal constitution (however, I do accept Jefferson’s view that the Congress and President have equal power and a duty to veto, to refuse to enforce, unconstitutional federal laws or action).

Unfortunately, in the case GONZALES, ATTORNEY GENERAL, et al. v. RAICH et al. (full opinion), decided today, the Supreme Court held that the feds can prosecute marijuana users even if local state laws attempt to legalize marijuana, e.g. for medical use (as 10 states do).

The Court held that the federal Controlled Substances Act was constitutional, since “Congress may pass laws regulating a state’s economic activity so long as it involves ‘interstate commerce’ that crosses state borders. The California marijuana in question was homegrown, distributed to patients without charge and without crossing state lines.”

This decision, while unfortunate, is predictable, and just goes to show how naive are centralist libertarians who put their faith in the federal courts and who don’t mind the courts having, or assuming, ever more jurisdiction over various areas of life and state policy. [My friend Tibor Machan takes me to task in the comments for not naming names. I have addressed this in a separate post.]

A dissent by Justices Sandra Day O’Connor, Clarence Thomas, and Chief Justice William H. Rehnquist disagreed, and would have allowed the states to set their own rules. Thomas’s separate dissent clearly states: “Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything–and the Federal Government is no longer one of limited and enumerated powers.”

Once again, Clarence Thomas illustrates my claim (2) that conservatives–at least, conservative judges–tend to be better on economic liberties than liberals, and even better on most personal liberties, like freedom of speech.

War is a big issue and the Republicatns are arguably more warlike especially of late than Democrats (although I would not say the Dems really opposed the Iraq war; and they did help get us into WWI, WWII, and Vietnam, and they now claim Lincoln as one of their own, so I count the War to Prevent Southern Independence as a democrat war too). But conservatives, it seems to me, are somewhat better than liberals on economic issues; and slightly better on personal issues (leaving abortion aside, which is a debatable issue in any event). The conservative justices on the Supreme Court tend to be better than, or just as good as, the liberals, on free speech issues, for example–conservatives are better than liberals on commercial free speech; and the chlling effect on free speech from liberal programs such as affirmative action, antidiscrimation laws, etc., has been tremendous. Rehnquist wrote the flag burning opinion. And here, they are better even on the war on drugs.For some good, libertarian legal-constitutional analysis of the commerce and necessary and proper clauses, see the following articles by Randy Barnett (all available here):

New Evidence of the Original Meaning of the Commerce Clause
The Original Meaning of the Commerce Clause
Necessary and Proper
Original Meaning of the Necessary and Proper Clause

{ 26 comments }

Michael June 6, 2005 at 5:33 pm

What a great chance for the Governor of say California to demonstrate principles and testicular fortitude by deploying state police or the national guard to arrest any federal agents who try to enforce the federal law against marijuana which would be a violation of that civil rights of that state’s citizens.

Think we’ll see that?

Not in this lifetime.

Heffalump Jones June 6, 2005 at 6:15 pm

I know that sometimes people interpret statements differently, even with the benefit of knowing the intended meaning from those who wrote it. But this just seems so clear, I don’t understand how it could be reasonably misinterpreted. I am just speechless how educated and intelligent lawyers who are supposed to be supremely knowledgeable on the Constitution, and appointed in good faith by democratically elected politicians to uphold the law of our land, can come up with a ruling like this.

Then I woke up and realized that the US Constitution stopped being the law of the land over 150 years ago.

I swear if it wasn’t for pot I’d have a much tougher time taking in daily news on how messed up our world is.

The Justices need to have the 10th amendment surgically etched into their eyeballs.

Dennis Sperduto June 6, 2005 at 7:26 pm

Mr. Kinsella, good commentary. Maybe the following can constructively add to the discussion, but since I am not an attorney, I hope my remark is not too off-base. Liberals, as a response to most issues, look to more government, and where there is an issue of federal versus state jurisdiction, most liberals will support the bigger government entity, i.e., the federal government, most of the time.

And Mr. Jones, your observation about the Constitution and the 10th amendment is quite accurate; many times it is as if judges have not read the document. Or maybe, despite their oaths, they don’t care what the document states.

Half Sigma June 6, 2005 at 8:30 pm

Maybe I’m a “centralist libertarian,” but I’ve never put any faith in the courts.

Still, I am very disappointed in Scalia who was my hero when I was in law school.

Lowell R. June 6, 2005 at 9:46 pm

As a causal Court-observer I’ve been waiting for this case for quite some time. Now that the decision has been announced, I’m wondering what the answers to the following questions are. They both bear on the question of what role the courts should play in a libertarian society.

1. [Raich] Say that a state passes a libertarian-friendly law, that the Constitution gives the feds ultimate decision-making power in the area the law covers (i.e., interstate commerce. I am conflicted as to whether this is implicated in Raich. The California law certainly makes it more difficult for the federal government to enforce anti-marijuana laws — see Sam Bagenstos’s thoughts on this — but I’m not quite convinced that this is enough to justify the decision), and that Congress wishes to overturn the state law. Which trumps which: the power of the federal government to regulate this area, or the right of the people of that state to be free from coercion?

2. [Converse] Say that ____ (either a state or the federal government) passes a coercive (i.e., nonlibertarian) law, and that the Constutition gives ____ ultimate decision-making power in the area the law covers. Which trumps which: the power of ____ to regulate this area, or the right of the people to be free from coercion?

Any thoughts?

K. Chris C. June 6, 2005 at 11:01 pm

Anyone that has read “The Real Lincoln” by Thomas Dilorenzo would have realized that the Costitution has not been the law of the land since Lincoln killed it in 1861.

That someone would then have to realize that just the passing of the federal law against Marijuana was unconstitutional–and a gift to Randolph Hearst.

And if that someone still had hope of a living Constitution, Bush should have long ago ended that pipe dream.

So today’s decision should surprise no one who comes and reads at Mises.org.

David Heinrich June 7, 2005 at 12:06 am

Can there be any other description for those who would deny marijuana to someone for medical treatment of pain, other than evil?

It’s like these so-called “Christians” who support the criminalization of euthanasia, and want those with terminal cancer to suffer long deaths.

Here in Rochester, NY, there used to be a doctor back in the 70s who still did house-calls. Dr. Krai. Now, one of his friends had contracted some terrible disease, which condemned him to a slow painful death. At his friend’s request, the doctor helped him. One of his nurses turned him in, and he was put on trial. Wishing to leave something left over for his family’s inheritance, the Dr. hung himself in his cell.

Paul D June 7, 2005 at 1:27 am

“It’s like these so-called ‘Christians’ who support the criminalization of euthanasia, and want those with terminal cancer to suffer long deaths.”

Just a clarification, David. I presume you mean assisted suicide and not euthanasia (mercy killing), which is when a doctor or politician decides on his own that a patient should die.

Rolf June 7, 2005 at 2:30 am

K. Chris C.

Yes I studied the book “The Real Lincoln” reading it three times and found it to be a remarkable piece of scholarship. Friends of mine who teach high school where I live are reading it and are quite amazed. It is going to revolutionenize history books about America where I live.

JHH June 7, 2005 at 7:01 am

I found it interesting that Justice O’Connor went out of her way in her dissent to say that she would would have voted against the California law allowing the terminally ill to use marijuana to relieve their pain. And by “interesting,” I mean “amazingly evil.” Like, Madeline Albright evil.

Also note that Justice Kennedy, hero of the libertarian centralists, sided with the feds here.

As for the poster above who writes “the Costitution has not been the law of the land since Lincoln killed it in 1861,” not so. The Constitution continues to be the law of the land–it’s just shown its powerlessness, since Lincoln’s time, to limit government. As Kenneth Royce persuasively argues in his book, Hologram of Liberty, it was always meant to empower, not restrain, the feds. Libertarians need to recognize that, and quit wasting time telling us about the true, “lost” constitution that never really was, and never will be.

Vache Folle June 7, 2005 at 7:59 am

When Pat Robertson put out a fatwa on the Supremes last year or so, I was appalled. Now in view of this ruling, I am less appalled.

Walt D. June 7, 2005 at 9:23 am


Justice Thomas, dissenting.

Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything–and the Federal Government is no longer one of limited and enumerated powers.

Clarence Thomas is stereotyped by democrats as being “stupid”. (In their equation, African American + conservative = stupid). However, as is clear here, Clarence Thomas is able to render, in two simple sentences, a clearly stated and irrefutable assessment of the legal issue at hand.
In the next paragraph, he demolishes the “necessary and proper” argument of the majority:


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.

I am dismayed by the intellectual dishonesty of the majority opinion, particularly in regard to Justice Scalia. Was this merely a policy decision? Having snubbed the Bush Administration on Schiavo, would another vote against the BA put him out of the running for the Chief Justice position when Rehnquist retires?

It seems to me that the majority opinion makes about as much sense as arguing that if marijuana was prescribed to a United Van Lines driver, that it would “interfere with interstate commerce” because he would be unable to drive his truck. The list of contorted and convoluted reasons appears to be endless. The majority opinion appears to be straight out of Orwell’s “Animal Farm” – the law can be construed in any way to suit the purpose of those in power.

At a push, I could take any of the enumerated powers and write a reason to why this case gives Congress the power. For instance, I could argue that using marijuana adversely affects the Patents of the pharmaceutical industry, who will lose revenue if people are, for example, allowed to grow their own marijuana to treat depression. (The argument only needs to plausible, not convincing.)

Finally, from Justice O’Conner’s dissent, there is a reference to what constitutes “economic activity”. From an Austrian perspective, in the extreme, isn’t all human action economic in nature? Is this a valid conclusion?

Stephan Kinsella June 7, 2005 at 9:38 am

JHH writes: “The Constitution continues to be the law of the land–it’s just shown its powerlessness, since Lincoln’s time, to limit government. As Kenneth Royce persuasively argues in his book, Hologram of Liberty, it was always meant to empower, not restrain, the feds. Libertarians need to recognize that, and quit wasting time telling us about the true, “lost” constitution that never really was, and never will be.”

Talk about “the” “purpose” of legislation or constitutions is problematic, of course. How do we ever know what “the” purpose of a given law is? JHH’s comment about what libertarians “need” to do, and that it is some kind of “waste of time” to inquire into the original understanding of the Constitution, is simply an assertion of some kind of personal preference, pretending to be objective normative advice.

Stephan Kinsella June 7, 2005 at 9:59 am

Walt D. writes:

“I am dismayed by the intellectual dishonesty of the majority opinion, particularly in regard to Justice Scalia. Was this merely a policy decision?”

Scalia did not join the majority opinion. He joined in the decision, not the opinion. He wrote a separate concurring opinion.

I am not dismayed, for a few reasons. First, I am not at all surprised. Scalia has always been a mixed bag. I would rank the Justices as follows: Thomas is the best, by far, though he is not perfect. A distant second is Scalia, and close to him at third is Rehnquist. A distant fourth is O’Connor. The others are unredeemable.

Second, we as libertarians ought to realize the fed courts are just one internal branch of the mafia that rules us. We cannot and should not expect justice from them. Then we won’t be dismayed or disappointed when they do what the logic of their position requires. Yes, of course it was a policy decision. But this is not news. Thomas is quite radical, relatively speaking. If the Court were unable to use the commerce clause as a general grant of legislative or police power, well over half the federal laws would be seen as unconstitutional. The majority simply cannot have that. It is literally unthinkable to them.

“It seems to me that the majority opinion makes about as much sense as arguing that if marijuana was prescribed to a United Van Lines driver, that it would “interfere with interstate commerce” because he would be unable to drive his truck.”

Yes, it’s completely absurd; but it’s been this way ever sicne Wickard v. Filburn (see my discussion of it and link to it here), which held that Congress could outlaw a private farmer’s growing of his own wheat for his own use–on the grounds that if everyone grew their own wheat, then that would “affect” interstate commerce (because people would purchase less wheat from out of state suppliers), and “therefore” it falls within Congress’s power to regulate since Congress is given the power to “regulate interstate commerce.” It is just the most absurd thing I have ever read. Congress has the power to regulate interstate commerce–which basically means, make sure states don’t put up barriers to trade, so we have an internal free trade zone–and they have twisted it to say that a private person’s decision to grow his own food is “interstate commerce.”

“Finally, from Justice O’Conner’s dissent, there is a reference to what constitutes “economic activity”. From an Austrian perspective, in the extreme, isn’t all human action economic in nature? Is this a valid conclusion?”

Sure, but what O’Connor is referring to is really what Mises would call catallactics–the subset of (economic) action having to do with market exchanges.

Lou C. June 7, 2005 at 10:19 am

I used to be a republican, but studying showed me they were as riddled with hypocrisy as the democrats. I became a Libertarian, hoping peaceful means could free this country, but I don’t know whether this is a rational belief or thought. The Government will never surreder its powers and the people will not ask them too.

Revolutions are bloody and a waste of talents and property, but is there really any hope for freedom any other way?

Jeff D. June 7, 2005 at 10:50 am

I recall a speech that C.J. Rhenquist gave at my law school. He said something to the effect that, unfortunately, big government was here to stay and there was little chance of the court turning back the clock on it.

I suspect that any libertarian agenda will have to be enacted through the legislature.

If the Supreme Court reverted to the Lochner era and it would not be pretty, although, it would be pretty cool. I suspect that the President would refuse to enforce a decision holding the New Deal programs unconstitutional on Separation of Powers grounds. In the alternative, I don’t think society could handle such an overnight change – the President ordering the Social Security buildings chained up, all the workers fired, etc. The backlash against the libertarian/anti-federalist cause would do more harm than good, i.e., a Constitutional Amendment codifying Wickard.

Tibor Machan June 7, 2005 at 10:50 am

Kinsella states: “This decision, while unfortunate, is predictable, and just goes to show how naive are centralist libertarians who put their faith in the federal courts and who don’t mind the courts having, or assuming, ever more jurisdiction over various areas of life and state policy.” But where is the beef? Who are these libertarians–name and quote one, please, otherwise this is mere puff. What some libertarians do is to hail any court decision that broadens individual liberty. Anyway to liberty, barring its own suprression, is OK by me in this Hobbesian world, and I doubt Kinsella can refute that stance these days with any federalist, state’s rights or similar by now irrelevant theory.

Ike Hall June 7, 2005 at 1:07 pm

Lou:

“Revolutions are bloody and a waste of talents and property, but is there really any hope for freedom any other way?”

There surely is. 1) Ignore any and all edicts, decisions and regulations from whatever level of government. 2) Pay no taxes, fees, or fines to any level of government. (This is actually a corollary of Step 1.)

Obviously, this strategy raises some very thorny issues that peaceful people do not wish to confront. Namely, what will you do when they come for you? What will you do when they come for your friends, family, neighbors? What will you do to defend your sacred liberty?

I respectfully submit that not all revolutions are a waste of talents and property.

Stephan Kinsella June 7, 2005 at 1:45 pm

My friend Tibor Machan takes me to task in the comments for not naming names. I have addressed this in a separate post.

sam June 7, 2005 at 2:54 pm

ethical code for professional, what should be the kind of consequence when someone kill his client because of a lack of safety measures?

David June 7, 2005 at 3:29 pm

Walt D. hit the nail on the head when he writes “I am dismayed by the intellectual dishonesty of the majority opinion, particularly in regard to Justice Scalia. Was this merely a policy decision? Having snubbed the Bush Administration on Schiavo, would another vote against the BA put him out of the running for the Chief Justice position when Rehnquist retires?”

Yes, Walt. Scalia chose to ignore his judicial philosophy because he wants to be Chief. And he knows that an honest opinion on this case would have scuttled his chances.

To opportunists, like Scalia, “States’ Rights” mean only what they personally like. If they LIKE something that the feds try to regulate, such as guns, “States’ Rights” becomes a cause to die for. If they DON’T LIKE something that the feds try to regulate, such as marijuana, then suddenly they see the wisdom in Federal regulatory authority.

JHH June 7, 2005 at 5:53 pm

My suggestion above that libertarians not waste their time on the constitution reflects not only my personal perference, as Mr. Kinsella suggests, but also my ideas on how best to advance liberty.

If advancing liberty were simply a matter of putting the right ideas in front of the right government officials, then we would be wise to focus our efforts on making judges correctly understand the constitution. But many of us on this website (in contrast with some of the folks at, say, IJ or Cato) know better.

The reality is, the federal courts are rigged for the state to have ever more power. No president will nominate a judge who won’t affirm nearly all of his policies. No Senators will confirm a judge who would tell them everything they’ve ever done is unconstitutional. And no amount of libertarian constitutional scholarship or great lawyering will change this.

Perhaps one could argue that just because adhering to the “true” constitution is politically infeasible doesn’t mean we shouldn’t advocate it. But as long as you’re doing something politically infeasible, why not just advocate liberty, and work to delegitimize the state?

If some libertarians want to try to convince the feds to exercise less power, I wish them well. But their work strikes me as counterproductive inasmuch as it advances this idea that we can somehow prevail by playing the state’s rigged game. And it also strikes me as a waste of talent–especially for someone as brilliant as Randy Barnett.

J Henderson June 7, 2005 at 8:54 pm

This decision shows why libertarians should embrace the proper and original understanding of the interstate commerce clause. Its sole purpose was to prevent the states from obstructing interstate commerce with laws that prop up local interests. The wine decision was correct.

JHH June 11, 2005 at 12:38 am

Meanwhile, Gene Healy gives us good reasons not to get too excited about Clarence Thomas’s ostensible libertarianism here. According to Thomas, Congress cannot do whatever it wants under the Commerce Clause — but the president can do whatever he wants in the name of national defense. And that, of course, is even worse.

Stephan Kinsella June 12, 2005 at 1:48 pm

Who’s “too excited” about Thomas? I simply have made the point that as far as I can tell, on most issues, the more conservative justices are and have been no worse than the liberals on most issues, and substantially better on many. The conservative justices are better than liberals on free speech, federalism, economic rights, and so on.

I would rank the justices as follows: the best by far is Thomas, and this has been clear for a long time (although this does not mean we ought to think of him as a libertarian). Give him, say, a grade of 73 on a 100 point scale. Next, I’d say a distant second and third are Scalia and Rehnquist. Give them each a 62. Then you have O’Connor, at around a 52, and Kennedy, around a 45, and the rest are all below 40.

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