As Charles Krauthammer points out, the ruling "was not about concern for cancer patients, the utility of medical marijuana or the latitude individuals should have regarding what they ingest."
How far should government's reach be? Weintraub notes the answer of Justice Thomas:
It was about what the Constitution's commerce clause permits and, even more abstractly, who decides what the commerce clause permits. To simplify only slightly, Antonin Scalia says: Supreme Court precedent. Clarence Thomas says: the Founders, as best we can interpret their original intent.
The Scalia opinion (concurring with the majority opinion) appeals to dozens of precedents over the past 70 years under which the commerce clause was vastly expanded to allow the federal government to regulate what had, by the time of the New Deal, become a highly industrialized country with a highly nationalized economy.
Thomas's dissent refuses to bow to such 20th-century innovations. While Scalia's opinion is studded with precedents, Thomas pulls out founding-era dictionaries (plus Madison's notes from the Constitutional Convention, the Federalist Papers and the ratification debates) to understand what the word commerce meant then. And it meant only "trade or exchange" (as distinct from manufacture) and not, as we use the term today, economic activity in general. By this understanding, the federal government had no business whatsoever regulating privately and medicinally grown
It is not, nor has it been for some time. Weintraub concludes:
"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," Thomas wrote. "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."
So what is an answer? Justice Clarence Thomas for Chief Justice of the Supreme Court is one. This will not solve the fundamental problem of justices legislating from the bench, of justices adding more to the Constitution than is there, but it would be a telling sign and gesture in honor of freedom, federalism, and respecting the original intentions of the Founding Fathers. Krauthammer suggests just that as he distinguishes between the different ways Supreme Court Justices view the Constitution and their own role in interpreting this document:
Unfortunately, too many Americans who would be shocked and offended if their next-door neighbor said he knew what was best for them acquiesce when the government, which is really just millions of neighbors acting in concert, does exactly the same thing.
With Thomas's originalism at one end of the spectrum and Scalia's originalism tempered by precedent -- rolling originalism, as it were -- in the middle, there is a third notion, championed most explicitly by Justice Stephen Breyer, that the Constitution is a living document and that the role of the court is to interpret and reinterpret it continually in the light of new ideas and new norms.
This is what our debate about judges should be about. Instead, it constantly degenerates into arguments about results.
Two years ago, Thomas (and Scalia and William Rehnquist) dissented from the court's decision to invalidate a Texas law that criminalized sodomy. Thomas explicitly wrote, "If I were a member of the Texas Legislature, I would vote to repeal it." However, since he is a judge and not a legislator, he could find no principled way to use a Constitution that is silent on this issue to strike down the law. No matter. If Thomas were nominated tomorrow for chief justice you can be sure that some liberal activists would immediately issue a news release citing Thomas's "hostility to homosexual rights."
And they will undoubtedly cite previous commerce clause cases -- Thomas joining the majority of the court in striking down the Gun Free School Zones Act and parts of the Violence Against Women Act -- to show Thomas's "hostility to women's rights and gun-free schools."
I hope President Bush nominates Thomas to succeed Rehnquist as chief justice, not just because honoring an originalist would be an important counterweight to the irresistible modern impulse to legislate from the bench but, perhaps more importantly, to expose the idiocy of the attacks on Thomas that will inevitably be results-oriented: hostile toward women, opposed to gun-free schools . . . and pro-marijuana?