Those inconsistent federalists?
By Ann Althouse
Adam Cohen has an editorial nytimes.com about the prospect of the Supreme Court bringing back the so-called "Constitution in exile." The focus is on the medical marijuana case and Wickard v. Filburn:
Getting rid of Wickard would be an important first step. At last month's argument, that did not appear likely. Justice Antonin Scalia, a leading states' rights champions, said he "always used to laugh at Wickard," but he seemed prepared to stick with it. It may be, however, that the justices are quicker to limit Congress's power when it does things they don't like (like gun regulation) than when it does things they do (like drug regulation). They may be waiting for a more congenial case.
Is Scalia "a leading states' rights champion"? It may be that liberal editorialists are quicker to call Justices "states' rights champions" when they fail to defer to a state policy choice that the editorialists like.
Consistency about federalism does not demand that you lean toward the states in every case, it means that you have a principle about what can be done at the national level and what must be left to the states.
A principled version of federalism, which would often favor state autonomy, can acknowledge a basis for federal power when Congress seeks to control the market in a particular product and decides to reach down to the smallest components of what is an interlocking web of activity. In Wickard, an attempt to stabilize wheat prices included a farmer's cultivation of wheat that he consumed on the farm. In the medical marijuana case, the Controlled Substances Act reaches home-grown, home-consumed marijuna (even if it is used medicinally). There really is a principled distinction between cases like that and Lopez and Morrison, where the Court found the Congress's commerce power did not support a federal enactment. Lopez and Morrison involved disconnected, local activities that did not interlock with a nationwide web of transactions. |
