November 22, 2005

"Federalism After Gonzales v. Raich."

It's a big, exciting symposium, published in Lewis & Clark Law Review, with the articles now posted here (in PDF form). Raich is the case from last Term where the Supreme Court said that the commerce power allowed Congress to regulate home-grown, home-consumed marijuana, even when the state wants to authorize its use for medicinal purposes.

Here's my contribution to the symposium, snazzily titled "Why Not Heighten the Scrutiny of Congressional Power When the States Undertake Policy Experiments?" I focus on Justice O'Connor's dissent and conclude:
Justice O’Connor seems to have responded sympathetically to the predicament in which the Raich plaintiffs found themselves. This sympathy resonated with ideas about the states as laboratories of democracy. But Justice O’Connor’s dissenting opinion never faces up to what it means as a general proposition. Many commentators will nevertheless look at her opinion and, through the lens of their own sympathy for the plaintiffs and perhaps also their own enthusiasm for the judicial enforcement of federalism, see a better formulation of Commerce Clause doctrine than what the majority had to offer. I would ask commentators who think the Court erred in Raich to look beyond the context of the case and consider the general issue of whether to endorse a new doctrine that would change the degree of deference to Congress where a state has undertaken a policy experiment in an area that traditionally has been left to the states. I think such a doctrine is unworkable. It would invite fifty states and innumerable cities to carve out exceptions of all sorts from important federal statutes that are unquestionably supported by the Commerce Clause. Much as I would prefer to believe that it would prove beneficial to free local government to conduct idiosyncratic policy experiments that take random bites out of major federal statutes, I predict disarray and detriment. But I would love to be convinced that I am wrong.
Other contributions to the symposium:
"Foreword: Limiting Raich" by Randy E. Barnett

"Is Morrison Dead? Assessing a Supreme Drug (Law) Overdose" by Jonathan H. Adler

"Raich and Judicial Conservatism at the Close of the Rehnquist Court" by Eric R. Claeys

"Rescuing Federalism After Raich: The Case for Clear Statement Rules" by Thomas W. Merrill

“'Society Must Be [Regulated]': Biopolitics and the Commerce Clause in Gonzales v. Raich" by John T. Parry

"The Medical Marijuana Case: A Commerce Clause Counter-Revolution?" by Robert J. Pushaw, Jr.

"What Hath Raich Wrought? Five Takes" by Glenn H. Reynolds & Brannon P Denning.


XWL said...

How are you supposed to get appointed by either party when you take principled stands against creeping Federalism (Senators from both parties speak as if they don't like the trend but they hate it if any of their authority is challenged)?

(I know, Prof. Althouse has already voiced her strong disinterest in sitting on the highest court)

(and no, if any of the Atrios crowd is still lurking about, NO I'm not kissing ass!, if I were doing that I'd throw in a link to my own site and beg for traffic, see no link)

OddD said...


I don't get it.

Are you saying (roughly) that Raich is good because to have voted otherwise would have invited chaos?

Amy said...

I think this exerpt from your article is substantively sound, but for the sake of clarity, perhaps you could edit the sentence that begins "I would ask...." I had to read it several times to find meaning in the midst of unwieldy structure. (You are otherwise the writer of gorgeous prose.)

Ann Althouse said...

Amy, it's an old, published article, far past editing.