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June 08, 2005
The death of the Tenth Amendment
My friend Perry, over at his blog*, has a post up describing why conservatives should regard the recent Supreme Court decision allowing Federal law to overrule state laws on medical marijuana not as a victory (as it keeps pot out of peoples' hands) but as a terrible defeat. The crux of his argument, which right-bloggers have remained silent on, is that it uses the commerce clause to utterly destroy the Tenth Amendment, which reads:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
This is one amendment that conservatives usually stand stalwart on, even in the face of slanderously vile criticism (i.e. equating 'states right' with slavery and racism). But some 'conservatives' (i.e. Antonin Scalia) allowed political temporal concerns (i.e. marijuana laws) to overwhelm their principled stance. In his opinion for the majority,
"Congress's regulatory authority over intrastate activities that are not themselves part of interstate commerce (including activities that have a substantial effect on interstate commerce) derives from the Necessary and Proper Clause."
Anotnin shows this tendency to not understand the underlying ramifications of his decision.
On the other side, the "liberals" on the court understood that ten states' laws allowing medical marijuana were less important then pushing forward their principles and beliefs on the relationship between Congress and the states: they defeated the law based, in part, on the logic Scalia presented.
But all is not lost for the right, three lone judges understood that this was not just an isolated case, but important in the larger picture of the concept of the Federal government. Justice Thomas, in his dissent, presents the core argument that "the right" should pick up on:
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.
In the face of a real defeat, one conservative understands the long-term implications.
*While you are on Perry's blog, have a look around, it is quite a well-written webblog.
Update The WSJ has a nice summary on the decision (free registration recquired)