THOMAS' DISTURBING VIEWS IN DISSENT TO POT RULING

The Gonzales v. Raich case was not about marijuana and it was not
about the "war on drugs." So what was it really about? The case is at
the heart of a larger debate about the role of Congress in the
economic life of the nation since 1887 (with passage of the
Interstate Commerce Act) - and particularly since the New Deal era of
the 1930s.

While those who brought the case to the U.S. Supreme Court questioned
enforcement of the national law because California has its own law on
medical marijuana, they did not argue that the 1970 Controlled
Substances Act itself was an unconstitutional exercise of
congressional authority. But Justice Clarence Thomas did. So the
decision and the dissents were all about the proper role of Congress
in national life.

Progressives should hail the decision - even though treatment of
marijuana under the law is flawed and should be fixed by Congress and
the executive branch.

Since 1991, a narrow 5-4 majority - Chief Justice William Rehnquist
and Justices Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy and
Thomas - has attempted to diminish the role of Congress in national
life by overturning laws that passed with large bipartisan
majorities, such as the 1990 Gun-Free School Zones Act, the 1994
Violence Against Women Act and parts of the Brady Handgun Violence
Prevention Act. In terms of numbers, the court struck down 24 federal
laws in the six years between 1994 and 2000 (four laws a year). In
contrast, the Supreme Court in the 41 years between 1952 and 1993
struck down only 44 federal laws (about one a year).

Thomas has made it clear that he would roll back the role of Congress
in economic life to the preindustrial age.

In his dissent in the Gonzales v. Raich case, Thomas takes the
radical view that no manufacturing or agriculture can be the subject
of national law, only actual exchange across state borders. This
isn't about growing marijuana locally, quilting bees or charades. In
Thomas' world, gone would be laws about working conditions and hours
and environmental laws. If you manufactured something in your home
for local sale and dumped chemicals in your backyard that could seep
into the water table, federal environmental laws would not apply.

Turning more than a century of settled constitutional law on its
head, Thomas wrote that "Congress may regulate interstate commerce,
not activities that substantially affect interstate commerce." As the
majority pointed out, Thomas' view would "resurrect limits on
congressional power that have long been rejected." The 6-3 majority
in the Gonzales v. Raich decision headed off this disastrous thinking.

Further, Thomas' dissent in Gonzales v. Raich is reminiscent of
pre-Civil War Southern challenges to the national government. As the
majority notes, "Justice Thomas' suggestion that states possess the
power to dictate the extent of Congress' commerce power would have
far-reaching implications beyond the facts of this case."

The Gonzales v. Raich decision was a genuine case of judicial
restraint. A 6-3 majority of the U.S. Supreme Court said the law was
badly drafted (marijuana does have "valid therapeutic purposes"), but
that it is up to Congress and the executive branch to fix it - and
failing that, for voters to elect people who will.

Only the most dogmatic anti-government types can sincerely believe
that Congress doesn't have the power to regulate interstate markets
for medicines and other drugs - including drugs produced and consumed
locally. If you produce and consume morphine in California, you are
still subject to the controls in the national law on controlled
substances. If you produce and consume heroin in California, you are
still subject to that national law.

Marijuana clearly is wrongly classified in the national law as a drug
with "no accepted medical use." It should be reclassified with other
drugs that also have a high potential for abuse, but that have a
currently accepted medical use. Yet even if marijuana were
reclassified, it still would have to be regulated - as other drugs
are under the national law. As the court said, "Thus, even if
respondents are correct that marijuana does have accepted medical
uses and thus should be redesignated as a lesser schedule drug, the
Controlled Substances Act would still impose controls beyond what is
required by California law."

In short, it's not whether, but how, the national government will
regulate medical marijuana. This is not an issue that lends itself to
a patchwork of local laws.

Before the Gonzales v. Raich decision, a narrow majority of five
justices was willing to go toward the cliff in overturning a century
of law regarding the proper role of Congress in national life. With
this decision, two justices - Scalia and Kennedy - shifted that
balance. The majority decided not to go over the cliff. At this
stage, only one of nine justices - Thomas - is willing to make that jump.

Now, the issue becomes: How many and what kind of appointees will
President Bush make to the U.S. Supreme Court, and how many of them
will be willing to jump off that cliff?