June 06, 2005
J: Raich Decision
by Guest Contributor
June 6, 2005 04:07 PM
I think the best stuff comes out of the Raich decision is from Justice Thomas. One great aspect of anonymous posting is little fear of any sort of persecution based upon my beliefs. So, I choose not to follow my co-blogger's example and ascend my soapbox.
Thomas nailed it when he points out that the Websterian definition of commerce of "production, distribution, and consumption of commodities" subjects quite a bit to Congressional control. Combined with Wickard, I'm not sure what isn't within Congressional control.
Randy Barnett's example during oral arguments was sex within a marraige. Is this not the production/consumption of a commodity, just as prostitution? From my point of view, the majority never answered the question.
Radley Balko has some thoughts on Scalia's concurrence. I think he's dead-on, especially when he ties the opinion to Lopez. Lost in all this will be the fact that in a case very dear to a substantial contingent of conservatives, two signficant things happened - (1) Scalia sided with the liberal wing of the court, and (2) Thomas wrote vigorously against him.
From Scalia's concurrence,
Drugs like marijuana are fungible commodities. As the Court explains, marijuana that is grown at home and possessed for personal use is never more than an instant from the interstate market
That's an interesting view of sex within a marriage: that it is a fungible commodity, never more than an instant from the interstate market. "Well, honey, hope that was as good for you as it was for me. Now just stay there and I'll bring in the john..."
Hope your blogging is anonymous to your significant other as well as to the general public ;-)
Isn't Scalia's concurring opinion a variation of his slippery slope argument in his Lawrence v. Texas dissent utilizing the commerce clause via Wickard logic?
Is the analysis really going to turn on the "fungible" nature of marijuana? If so, a couple of points -
(1) There is such a thing as good weed and bad weed
(2) Guns aren't fungible. And as silly as you make it seem above, neither is sex. I mean, if Scalia's point was that only fungible products make their way into the stream of commerce, that clearly isn't true with sex. After all, prostitution is still around.
Presumably Scalia's concurrence (though not necessarily the majority opinion) would mean that future review of Congress's N&P regulation would turn on how closely the good in question was a substitute for the black market version of the good. That wouldn't be terrible, but it's not the law we've got, nor what we will have. If only Kennedy had joined Scalia's concurrence rather than Stevens's opinion.