For a reminder of how the slow erosion of our constitutional rights proceeds, give a read to Damon Roots’s short article, “The 5 Worst Supreme Court Rulings of the Past 50 Years,” on Reason.* The entries don’t appear to name a winner, but I still find the Commerce Clause perversion to be the most indicative of the problematic political theory that has pervaded our government for a century:
Article 1, Section 8 of the U.S. Constitution recognizes the congressional authority “to regulate commerce…among the several states.” In Wickard v. Filburn (1942), the Supreme Court gave federal lawmakers a massive shot of steroids, enlarging their power in this area to include the regulation of wholly local activity if it has a “substantial economic effect” on the national market.
Six decades later, in Gonzales v. Raich (2005), the Court handed Congress even more power, upholding a federal ban on marijuana, even as applied to plants that were cultivated and consumed by patients for their own doctor-prescribed use in states where medical cannabis was perfectly legal. As Justice Clarence Thomas observed in dissent, “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.”
Once one erases the distinction between taking an action (like conducting business across state lines) and doing something that reduces the need for that action (producing something in your own home, for your own use, that reduces your need to conduct business across state lines), there really is no feasible limit on federal power. In theory as well as in practical reality, every action in our society has some effect on every other action.
This is the problem with accepting government officials’ creativity in finding ways around Constitutional limits. If people really want to ban marijuana, then they should push for legislation to do so. If that legislation turns out to be unconstitutional, then they should amend the constitution… as narrowly as possible. Bending the rules can never be a narrow measure in the long term, because it bends principles as well, and many issues reflect the shapes of our principles.
* Of course, the omission of Roe v. Wade is clearly a function of the publication in question.