Friday, June 10, 2005

Raich v. Gonzalez and the media reaction

In the wake of the Raich decision, here at, it once again became blatantly obvious to the lonely libertarian that the public at large (and the mainstream media) has little understanding of Constitutional Law and the role of the Supreme Court

For those of you living in a cave, the case dealt with a conflict between stringent federal drug laws, and a medicinal marijuana initiative that had been passed in California. Ten other states had passed similar laws that were likewise on the hook with this decision. The Court ruled by a 6-3 margin that the federal law was applicable, and medicinal marijuana smokers could be prosecuted under federal law, despite the protection of their state laws. Justice Stevens wrote the opinion of the Court, and was joined by Justices Breyer, Souter, Ginsburg, and Justice Scalia who filed a separate concurrence. Justices Thomas, O’Connor, and Rehnquist dissented.

I have not followed Constitutional Law long enough to be able to judge the reaction to Raich as opposed to other major decisions. However, from the vast amount of reading I’ve done on the subject of Constitutional law, it seems as though the public at large judges Constitutional decisions based on the political and factual implications of the decisions, and not on the legal implications of the decisions.

The real issue at stake in Raich was not medicinal marijuana, but you wouldn’t know that from the media coverage. The CBS Evening News presented the story by showing interviews of medicinal marijuana smokers and doctors. Not one Constitutional Law expert was interviewed. Rather than focusing on the all important legal question of “why?” the mainstream media instead focused solely on the effects this decision would have. Not that the effects aren’t important, but it is difficult to criticize the effects or to argue for change if you don’t understand what it is that needs to be changed in the first place.

The Supreme Court, despite popular belief, does not make political decisions. It merely decides legal questions of Constitutional Law that come before it. Over at my favorite “laugh-at-what-crazy-things-the-left-is-saying” website,, there was much confusion as the so-called conservative Justices had dissented in favor of California’s medicinal marijuana laws, and all the so-called liberal justices had ruled against California’s medicinal marijuana laws. There’s sure to be a great deal more posting in defense of the Supreme Court on this blog, but for now, just keep in mind that the Justices make decisions not based on their policy views, but based upon their view of the law. This was not a forum on the merits of medicinal marijuana, but rather a debate as to the ability of federal law to reach medicinal marijuana smokers. If one knows the jurisprudence of the Justices, none of their conclusions are all that surprising, with the possible exception of Justice Kennedy siding with the opinion.
Several years ago, in the Lawrence v. Texas decision that found state sodomy laws to be an unconstitutional violation of privacy, Justice Thomas submitted a brief solo dissent that epitomizes the nature of Constitutional law. While he found state sodomy laws to be “uncommonly silly,” and while he would vote to repeal such a law if he had the opportunity, he could not find any authority in the Constitution to strike down such laws. You can agree or disagree with his legal conclusion, but the point is, his decision was only a legal conclusion, not a conclusion about the merits of such a law.


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