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June 10, 2005

Justice Thomas, Libertarian

From George F. Will's column on the Feds trumping the States last week:

Monson, and another woman using homegrown marijuana recommended by her doctors, sought an injunction against enforcement of the federal Controlled Substances Act. Both said they had a right to their plants under California's Compassionate Use Act. Passed overwhelmingly by referendum in 1996, that act allows marijuana use by individuals whose doctors recommend it for the relief of pain or nausea. But this law -- 10 other states have similar ones -- runs contrary to the federal statute.

The two women argued against enforcement of that law, saying that the private use of homegrown marijuana has nothing to do with interstate commerce; hence Congress has no constitutional power to regulate it. On Monday the Supreme Court disagreed. In a 6 to 3 ruling, the court held that Congress's claim to exclusive regulatory authority over drugs, legal and illegal, fell well within its constitutional power to regulate interstate commerce. This was predictable, given what the court said 63 years ago about an Ohio farmer's 239 bushels of homegrown wheat.

[The grain]...was raised and used entirely on Roscoe Filburn's farm. None of it entered intrastate, let alone interstate, commerce. So Filburn argued that although the 239 bushels exceeded his production quotas under the federal Agricultural Adjustment Act, they were none of the federal government's business, and he refused to pay the stipulated penalty.

A unanimous Supreme Court disagreed, arguing that the cumulative effect of even minor and local economic activities can have interstate consequences. The court said even a small quantity of grain "supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Homegrown wheat in this sense competes with wheat in commerce." That said, clearly Congress's power under the Commerce Clause is vast enough to permit Congress to decide that the use of even homegrown marijuana can affect the interstate market.


Writing for Monday's majority, Justice John Paul Stevens, perhaps the most liberal justice, was joined by Justices Stephen Breyer, David Souter, Ruth Bader Ginsburg and Anthony Kennedy. Scalia concurred separately.


Justice Sandra Day O'Connor, a former Arizona state legislator, dissented, echoing Justice Louis Brandeis's judgment that federalism is supposed to allow a single state to be a "laboratory" to "try novel social and economic experiments without risk to the rest of the country." Her dissent was joined by Chief Justice William Rehnquist....

[Clarence] Thomas, the justice least respectful of precedents, joined O'Connor's dissent and also dissented separately, disregarding many precedents giving almost infinite elasticity to the Commerce Clause. He said that the women's marijuana was never bought or sold, never crossed state lines and 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," including "quilting bees, clothes drives and potluck suppers." Thus "the federal government is no longer one of limited and enumerated powers."

It's pretty sad, it seems to me, that out of 9 judges, only 1 manages to recognize as valid and support the libertarian perspective.

Federal Marijuana Denials Trump State Permissions

Cox and Forkum Political Cartoons

Charles Krauthammer chimes in:

Justice Thomas: "Dope is cool."

Justice Scalia: "Let the cancer patients suffer."

If the headline writers characterized Supreme Court decisions the way many senators and most activists and lobbying groups do, that is how they would have characterized the Supreme Court decision this week on the use of medical marijuana in California. It was ruled illegal because the federal law prohibiting it supersedes the state law permitting it. Scalia agreed with the decision. Thomas dissented.

In our current, corrupted debates about the judges, you hear only about results. Priscilla Owen, we were told (by the Alliance for Justice), "routinely backs corporations against worker and consumer protections." Well, in what circumstances? In adjudicating what claims? Under what constitutional doctrine?

The real question is never what judges decide but how they decide it. The Scalia-Thomas argument was not about concern for cancer patients, the utility of medical marijuana or the latitude individuals should have regarding what they ingest.

It was about what the Constitution's commerce clause permits and, even more abstractly, who decides what the commerce clause permits. To simplify only slightly, Antonin Scalia says: Supreme Court precedent. Clarence Thomas says: the Founders, as best we can interpret their original intent.

The Scalia opinion (concurring with the majority opinion) appeals to dozens of precedents over the past 70 years under which the commerce clause was vastly expanded to allow the federal government to regulate what had, by the time of the New Deal, become a highly industrialized country with a highly nationalized economy.

Thomas's dissent refuses to bow to such 20th-century innovations. While Scalia's opinion is studded with precedents, Thomas pulls out founding-era dictionaries (plus Madison's notes from the Constitutional Convention, the Federalist Papers and the ratification debates) to understand what the word commerce meant then. And it meant only "trade or exchange" (as distinct from manufacture) and not, as we use the term today, economic activity in general. By this understanding, the federal government had no business whatsoever regulating privately and medicinally grown marijuana.

This is constitutional "originalism" in pure form. Its attractiveness is that it imposes discipline on the courts. It gives them a clear and empirically verifiable understanding of constitutional text -- a finite boundary beyond which even judges with airs must not go.

Rock on, Justice Thomas.

Update: When I posted this, I took for granted that NO ONE would possibly consider Clarence Thomas to be a libertarian. I've seen no evidence, outside of this incident, of any libertarian thought in Thomas. But I'm noticing that people are finding this post through search engines using the keywords, "Clarence Thomas Libertarian", or something like that. Interesting. Posted by Jeff at June 10, 2005 07:46 AM


I knew as the lynching of Thomas was going on in his congressional hearings about anita hill that they were creating full fleged libertarian. And I was right.


Posted by: eric Johnson at May 21, 2006 08:22 AM

FWIW, I found it while searching for "libertarian political cartoons".......


Posted by: jake at October 19, 2006 07:10 AM

FWIW, I found it while searching for "libertarian cartoons".......

My search left out the "political" but apparently I'm not the only Jake in search of libertarian cartoons. I was deciding whether or not I should bother putting my talent to use, since I eschewed a career in art for one in insurance and politics, but have lately seen so much opportunity for material I was considering getting into cartooning.

For now, I'll leave it to Scott Bieser, with whom I often disagree with in matters of politics, but who is a very talented libertarian cartoonist.

-Jake Witmer

Posted by: Jake Witmer at March 19, 2008 07:47 PM

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