Vital Signs

Raiching the Constitution Over the Coals

The Supreme Court is often described as the final redoubt of states’ rights.  In the last decade, we have heard much about the Court’s “New Federalism” jurisprudence.  The Court, we have been warned, is seeking to return the Constitution to the horse-and-buggy days of yesteryear.  Legal oracles such as the New York Times’ Linda Greenhouse and Harvard’s Laurence Tribe fret about a return to the enervated Articles of Confederation or “antebellum jurisprudence.”  A typical Greenhouse column leaves me with the impression that John C. Calhoun sits on the Supreme Court and that Congress is precluded from governing effectively.

This, of course, is rubbish.  And the Supreme Court proved it on June 6 with its decision in Gonzales v. Raich.  In this landmark Commerce Clause case, the Court affirmed that Congress’ power to regulate local, intrastate matters is boundless.  As Justice Sandra Day O’Connor noted in dissent, the Raich decision “threatens to sweep all productive human activity into the federal regulatory reach.”  New Federalism was but a bugbear.

The question presented in Raich was whether Congress may prohibit the medicinal use of cannabis via the federal Controlled Substances Act—even if the cannabis at issue is grown using only soil, water,...

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