Kerry Thomas Opinion & Commentary ~ Enumerated Powers and the Constitution, part 2

Enumerated Powers, part 2

(Cousin Clarence and I Agree)

by Kerry Thomas

June 11, 2005

To borrow a line from Al Pacino, “It’s fun to be right.”

On November 29, 2004 the United States Supreme Court heard arguments in the case of [Attorney General] Ashcroft v. Raich (03-1454). On June 6, 2005 the Court rendered it’s decision. [The case is cited as Gonzales v. Raich (03-1454), due to a change in the office of Attorney General.] In a 6-3 decision, the Court declared, essentially, that State-approved medical use of marijuana violates the Controlled Substances Act, and is, therefore, illegal in the United States, despite 11 States passing laws which legalized the practice.

Agents of the Drug Enforcement Agency had entered the property of Diane Monson and seized and destroyed six cannabis plants. The plants had been given to her, and her doctor had legally prescribed, within the State of California, her use of the plants for medicinal purposes. There was no commerce, as there was no transaction, and nothing left the State of California to trigger the “interstate” commerce clause.

As it has been so many times in the past, the majority opinion of the Supreme Court was wrong in this case.

The three dissenting Justices were Chief Justice William Rehnquist, Associate Justice Sandra O’Connor, and Associate Justice Clarence Thomas. As I read through the 79-page decision, I thought to myself how familiar the arguments sounded. Then I got to the dissenting opinion of Justice Clarence Thomas (which begins on page 62 of the decision). While Justice Thomas couched his opinion in legalese, I almost wonder if he happened to read my article from November 30, 2004.

Echoing what I wrote in November, Justice Thomas began his dissenting opinion “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.” I agree.

Justice Thomas went on. “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.”

Thomas continued. “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.“

Indeed!

You see, this case is not so much about the use of marijuana, but the Powers of the federal government to dictate to the States what they may or may not do.

Justice O’Connor began her dissenting opinion “We enforce the “outer limits” of Congress’ Commerce Clause authority not for their own sake, but to protect historic spheres of state sovereignty from excessive federal encroachment and thereby to maintain the distribution of power fundamental to our federalist system of government. One of federalism’s chief virtues, of course, is that it promotes innovation by allowing for the possibility that “a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”

While this particular case is only binding on the parties directly involved in it, the case has set a precedent which will be used to argue similar cases in the future, until such time as the Supreme Court agrees to hear another similar case. But until that time, by judicial precedent if not by legislative act, medically-prescribed use of marijuana, as authorized by the legislative actions in 11 States, is federally prohibited, under the terms of the Controlled Substances Act.

At least, that’s the opinion of 6 people who sit cloistered in their black robes behind closed doors, unanswerable to the People.

While these Supreme Court Justices are supposed to be the most knowlegable legal minds in America (at least according to common mythology), they are human. They are fallable. And they live and work in a city whose populace craves power. Principled men and women are able to stand up against peer pressure, against unpopular political views. Not only do they stand behind, but also can vehemently defend, their principled beliefs. In this case, there were only 3 with such principles.

So, despite the Constitution’s clear admonishion that the Powers not specificly granted to the federal government by the Constitution are rightfully reserved to the States, and to the People, by a vote of 6-3 the Supreme Court has allowed Congress to usurp still more Rights from the States, and from you and me. Besides, after all, we mere peons are not smart enough to know what’s best for us. We should sleep well tonight, knowing the helping hand of Big Brother is there, watching out for our safety and security.

Just remember the words of Ben Franklin: “Any society that would give up a little liberty to gain a little security will deserve neither and lose both.”

UPDATE August 20, 2009 ~ I brought this case to the attention of Judge Andrew P. Napolitano, Senior Judicial Analyst at the Fox News Channel after listening to one of his commentaries about enumerated powers and the Constitution. Judge Napolitano had this to say about my analysis: “I know the case well. You are right on the mark.”