The High Court And Its Failure To Live Up To Its Name
Matt Harrison

Statism had the smart money this week as Gonzalez v. Reich was decided in favor of the federal government. Specifically, the Court ruled that John Ashcroft ordering his boys to raid the backyard of a California woman suffering from back spasms and growing cannabis under a doctor's prescription was a justifiable extension of Congress's (!) Constitutional ability to regulate interstate commerce.

In the majority opinion, Justice John Paul Stevens said the case was "troubling" due to patients' claims that they needed cannabis to eliminate physical pain and suffering. Ignoring this, however, he concluded that the Court had no choice but to uphold Congress's "firmly established" power to regulate "purely local activities . . . that have a substantial effect on interstate commerce."

When majority opinions of the Supreme Court mistake precedent for probative and peremptory evidence, we can safely call the government a dreadnaught.

It's simply untrue that the Supreme Court has "no choice" but to uphold "firmly established power." A perfunctory voyage through Supreme Court history gives Brown v. Board of Education, an arrant rejection of 178 years of "firmly established power", among dozens of others. More recently, we saw Lawrence v. Texas, the reversal of the "firmly established power" of Bowers v. Hardwick.

Every political science major knows that beauty of the high court's independence is its liquid ability to recognize the need for reform, not its acting as lumbering ogre taking decades to reverse course. If we wanted inert curmudgeons to hear our case for reform, trust me, we'd be lobbying in Congress.

Sure, a Congressman would cross party lines in a New York Minute to satisfy a corporate or union contributor (how much pork did your Congressman bring home last winter?), but he isn't going to hear anything about marijuana decriminalization.

Remember, these are the same geniuses who decided, while less then 2% of them are certified physicians, that there is no medical benefit to marijuana, contradicting actual physician opinion in nearly every state and around the world. No, we know better than to expect a hand from them.

However, the Supreme Court is supposedly the equalizer. It is the only federal branch explicitly created and existent to limit government. The protection of liberty is thus contingent upon an active judiciary. The Supreme Court gave us Roe v. Wade; Congress gave us Prohibition. The Supreme Court gave us Miranda rights; Congress gave us the Alien and Sedition Acts. Congress makes laws; the Supreme Court takes them away.

Naturally, the Court can fail to uphold liberty with its refusal to nullify legislation. It so refused in Plessy v. Fergueson, Dred Scott v. Sanford, Bowers v. Hardwick, myriad others, and now Gonzales v. Reich. However, the failures are nothing but institutional inaction and should be considered aberrations from its duty to reverse these state encroachments.

By conspicuous contrast, Congress may uphold liberty only with its abrogation of its own legislative destruction. Despite Rousseau's contemporaries insisting that positive liberty exists, the American framework allows only for the negative version - and it is specifically that freedom that only the court is expected to defend.

Where else do we go when we presume government has gone too far? Sure, it's noble to write one's senator and indulge in the Panglossian hope that he'll take the floor and nobly exhort his fat cat bretheren that they should consider limiting their power grab, but it's just not going to do anything. Despite their demagogic rhetoric at West Point commencement ceremonies, representatives and Presidents aren't equipped to preserve liberty. They're only equipped to take it away. Sure, they can reluctantly return the booty from their own piracy, but let's not confuse that with a meaningful gift.

A tax cut is nothing but Congress reducing the amount it originally usurped. The end of Prohibition was nothing but Congress giving back a freedom it denied over a decade earlier.

Rather, the Supreme Court is the answer.

The judiciary is equipped to prevent Congress and the executive from wielding power not explicitly granted to them in the Constitution. Ideally, the justices should be unconcerned with the social benefits of policies. They should be determining whether the power the government is playing with is a power they truly have; not whether the policies ring in the ears of the demagogues.

Also, it's apocryphal to assume that the Supreme Court had to decide the case within the interstate commerce clause. Yes, if they had affirmed marijuana as a commodity falling under the jurisdiction, the federal privacy invasion would have been sanctioned.

However, the regulation of interstate commerce has spun well out of control. If the Framers intended for interstate commerce to be defined as any transaction that could affect a conceivable modification of economic situations in another state, they might have said, well, "Congress has the power to regulate all Commerce."

Beyond that, few observers note the following. Were the Kafkaesque to become political reality - that is, that to grow a marijuana plant in one's backyard is to engage in interstate commerce - the soritical leap from authorized Congressional regulation to complete proscription is a little bit larger than Constitutional intent would authorize.

Put another way, Congress is naturally permitted to regulate, say, the interstate trade of Oregon lumber. However, what if Congress were to tomorrow legislate that Oregon lumber is an illegal product and its cultivation, transportation and use is thereby punishable by imprisonment? Would we be content to allow "interstate commerce" to serve as that impenetrable amulet against judicial review? Certainly not - we'd expect the Court to act and find that Congress has no established power to enforce such ban.

If all Congress wants is the ability to regulate the marijuana trade, let's let them. Let's let them saturate the herb with sin taxes, FDA regulations, THC quotas, advertising limitations, sales licenses and whatever regulatory inhibition that happens to be the Flavor of the Month, and then graciously allow it to hit the market as dollar signs dance in their heads. But for the love of Jefferson, decriminalize the damn herb first!

The Court could have taken one of several methods in preserving American freedom. It could have objected to the notion that individual cannabis cultivation or purchase is Constitutionally interstate commerce. It could have recognized the Federalist principles that would have allowed the states to set their own drug policy and not suffer through culicine federal jurisdiction jumpers.

It was a chance for a scorched earth, watershed moment, destined to become a classic decision. Instead, the Court balked, content to weakly spout precedent in defense of rights infringement. Well, there's always next year.