Jewish World Review June 15, 2005 / 8 Sivan,
The high cost of nuances
The Supreme Court's recent decision saying that the federal
government can prosecute those using marijuana for medical purposes, even
when state laws permit such use, has been seen by many as an issue of being
for or against marijuana. But the real significance of this decision has
little to do with marijuana and everything to do with the kind of government
that we, our children, and our children's children are going to live under.
The 10th Amendment to the Constitution says that all powers not
granted to the federal government belong to the states or to the people.
Those who wrote the Constitution clearly understood that power
is dangerous and needs to be limited by being separated separated not
only into the three branches of the national government but also separated
as between the whole national government, on the one hand, and the states
and the people on the other.
Too many people today judge court decisions by whether the court
is "for" or "against" this or that policy. It is not the court's job to be
for or against any policy but to apply the law.
The question before the Supreme Court was not whether allowing
the medicinal use of marijuana was a good policy or a bad policy. The legal
question was whether Congress had the authority under the Constitution to
regulate something that happened entirely within the boundaries of a given
For decades, judges have allowed the federal government to
expand its powers by saying that it was authorized by the Constitution to
regulate "interstate commerce." But how can something that happens entirely
within the borders of one state be called "interstate commerce"?
Back in 1942, the Supreme Court authorized the vastly expanded
powers of the federal government under Franklin D. Roosevelt's
administration by declaring that a man who grew food for himself on his own
land was somehow "affecting" prices of goods in interstate commerce and so
the federal government had a right to regulate him.
Stretching and straining the law this way means that anything
the federal government wants to do can be given the magic label "interstate
commerce" and the limits on federal power under the 10th Amendment vanish
into thin air.
Judicial activists love to believe that they can apply the law
in a "nuanced" way, allowing the federal government to regulate some
activities that do not cross state lines but not others. The problem is that
Justice Sandra Day O'Connor's nuances are different from Justice Antonin
Scalia's nuances not only in the medical marijuana case but in numerous
Courts that go in for nuanced applications of the law can
produce a lot of 5 to 4 decisions, with different coalitions of Justices
voting for and against different parts of the same decision.
A much bigger and more fundamental problem is that millions of
ordinary citizens, without legal training, have a hard time figuring out
when they are or are not breaking the law. Nuanced courts, instead of
drawing a line in the sand, spread a lot of fog across the landscape.
Instead of going in for fashionable "nuance" talk, Justice
Thomas drew a line in the sand: "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 short, the kinds of limitations on the power of the national
government created by the Constitution are being nuanced out of existence by
Ironically, this decision was announced during the same week
when Janice Rogers Brown was confirmed to the Circuit Court of Appeals. One
of the complaints against her was that she had criticized the 1942 decision
expanding the meaning of "interstate commerce." In other words, her position
on this was the same as that of Clarence Thomas and both are anathema to
Every weekday JewishWorldReview.com publishes what many in Washington and in the media consider "must reading." Sign up for the daily JWR update. It's free. Just click here.
Comment on JWR contributor Thomas Sowell's column by clicking here.