Raich as Constitutional Law Doctrine:
First of all, let me just say I’m delighted to be here guest-blogging. I’m planning on cross-posting most or all of my contributions over at the Volokh Conspiracy, but I think the idea of using this site as a home base for a discussion of Raich is a pretty interesting one.
There’s lots to say about the Raich opinion, but let me start with a tentative thought: Whatever normative views you have about the proper scope of the Commerce Clause, or of the merits of medical marijuana as policy, isn’t the opinion by Justice Stevens relatively unremarkable as an application of existing constitutional law doctrine? At least based on my initial read, the majority opinion doesn’t seem to break much new ground. It accepts the preexisting doctrinal framework for interpreting the Commerce Clause, and it reasons by analogy to Wickard and distinguishes Lopez and Morrison. Every majority opinion adds a new data point, of course, but this data point seems less surprising and new than many others. Indeed, my initial sense is that the most interesting parts of Raich are the concurring and dissenting opinions rather than the majority opinion. Any thoughts?
Raich as Constitutional Law Doctrine:
There’s lots to say about the Raich opinion, but let me start with a tentative thought: Whatever normative views you have about the proper scope of the Commerce Clause, or of the merits of medical marijuana as policy, isn’t the opinion by Justice Stev…
Comment by The Volokh Conspiracy — June 6, 2005 @ 1:47 pm
I agree. One way I think of Constitutional Law is to ask myself, “Could I have scored an ‘A’ if I had applied this analysis on an exam?” (FWIW, I used this method before Barnett wrote his article, though I don’t think it’s unique.) The majority merely applied Wickard. Nothing too flashy or sexy.
After Lopez and Morrison, some wondered whether rational basis review would apply to Commerce Clause-based challenges. Six members of the Court said yes, while the dissenters seemed to apply a higher level of review.
What is up with Justice Thomas’ Necessary and Proper Clause fetish, first in Sabri, and now in Raich?
Is there any chance that Maxwell, Smith, and Stewart will NOT be GVR’ed and reversed on remand?
Comment by Mike — June 6, 2005 @ 1:53 pm
Since Wickard v. Filburn, the SCt has consistently held that Congress basically has the power to do whater it wants so long as it’s not specifically prohibited in the first eight Amendments to the Bill of Rights (Amendment 2 excepted).
So yes, it’s not unremarkable in that sense, but many hoped better of the current Supreme Court, and we are especially disappointed with Scalia.
Comment by Half Sigma — June 6, 2005 @ 1:53 pm
It still amazes me that Wickard v. Filburn survives. Even if you don’t buy originalist jurisprudence, the reasoning underlying Wickard, which comprises the main justification for Raich’s result, is so obtuse and self-contradicting that it truly boggles the mind.
Comment by JNM — June 6, 2005 @ 2:26 pm
While I concur with JNM that the continued existence of Wickard is amazing, I see nothing surprising in this decision. The result is clearly what the majority sought, so it was no surprise the court would simply uphold the law by citing Wickard.
If Wickard is to be overturned, it will have to be via a case more in line with the justices’s personal feelings than a medical marijuana argument.
Comment by Andrew — June 6, 2005 @ 3:40 pm
Ashcroft v. Raich - The Supreme Court on Federalism
After trekking through the 9th Circuit, the long awaited decision in Ashcroft v. Raich is finally here. (Along with a concurrence and a dissent or two). Larry Solumn provides a good summary of the arguments here. As is usually the…
Comment by Calblog — June 6, 2005 @ 7:51 pm
Here’s the email I have sent to the Raich counsel. By the way, Randy Barnett was one of the counsel in that case, and I don’t think anyone could figure out why he or the others would propose the utterly ridiculous argument that the Court should raise the level of scrutiny for the commerce clause. Did they actually want to lose the case?
It’s ultimately my view of the Constitution which is going to prevail, because I was the only one to contact Justice Brennan to try to find out why he and Justice Marshall were so frequently using the following statement by James Madison: the Bill of Rights “prevents every assumption of power in the legislative or executive.” Obviously, the issue is: what does Madison mean by the word every?
In case your readers would like to know what the Founders intended by the Constitution, they should read on.
Dear Raich Counsel:
In his Raich opinion, Justice Stevens has indicated what you should argue in a petition for rehearing in order to win your case:
“The case is made difficult by respondents’ strong arguments that they will suffer irreparable harm because, despite a Congressional finding to the contrary, marijuana does have valid therapeutic purposes. The question before us, however, is not whether it is wise to enforce the statute in these circumstances; rather, it is whether Congress’ power to regulate interstate markets for medicinal substances encompasses those portions of those markets that are supplied that are supplied and consumed locally….[Respondents do not contend] that any section or provision of the CSA amounts to an unconstitutional exercise of Constitutional authority.”
He is strongly suggesting that you abandon your losing effort to undo Holmes and have the Court raise the level of scrutiny for the commerce clause. Anyone could have told you–and many people did–that that had no possibility of success.
Justice Stevens is indicating that what does have a possibility of success, is for you to argue that the Court should raise the level of scrutiny for medical care. Not only does the article below mention medical care, but also, it lays out the tests you have to meet in order for the Court to raise scrutiny for medical care. The Court is fully aware of the argument, and is just waiting for you to make it.
So far, you have proved pretty obtuse, sticking to an argument which was a loser from the get-go. Will you now have the common sense to use an argument which can win you your case? Let’s see how devoted you are to the interests of your clients.
Cordially yours,
John Ryskamp
1677 Arch Street
Berkeley, California 94709
(510) 848-6898
Ryskamp, John Henry, “Kelo v. New London: Deciding the First Case Under the New Bill of Rights” . http://ssrn.com/abstract=562521
Comment by John Ryskamp — June 6, 2005 @ 8:40 pm