Tuesday, November 22, 2005

What remains of federalism?

This post by Professor Randy Barnett over at Volokh Conspiracy led me to his interesting (and short) paper entitled Limiting Raich a foreword to the coming Lewis and Clark Law Review symposium issue on Federalism After Gonzales v. Raich.

Prof. Barnett, of course, has an interesting perspective on Raich, since he is the lead attorney and argued the case before the Supreme Court last term. In the paper, he argues for a way that a future - more pro-federalism - Court could limit the holding. Here is the abstract to the paper:
In Gonzales v. Raich, the Supreme Court rejected a constitutional challenge to the Controlled Substance Act, as applied to the cultivation, possession and use of cannabis for medical purposes as recommended by a physician and authorized by state law. The challenge relied on the precedents of United States v. Lopez and United States v. Morrison in which the Court had found that the statutes involved had exceeded the powers of Congress under the Commerce Clause. As explained by the articles in the symposium in which this Foreword will appear, the Court in Raich has now cast the applicability of these previous decisions into doubt. In this brief essay, I offer a route by which a future majority of the Supreme Court can limit the scope of its decision in Gonzales v. Raich should it desire to put its commitment to federalism above a commitment to national power. Viewed in this light, the decision in Raich is not quite as sweeping as it first appears.
It is a relatively interesting and quick read.

I rather disagree with Prof. Barnett's contentions - both in Raich, and in his support of Lopez and Morrison. In fact, I am in the midst of writing a paper to submit to Legal Affairs writing competitions which is based on some of my commerce clause ramblings on this blog. I think that Lopez and Morrision were abberations in the Court's history of Commerce Clause jurisprudence, and a form of strict federalism has no place in this day and time. Having said that, it is ALWAYS illuminating to be able to get nuggets liket this straight from the horse's mouth - in this case the attorney arguing the case before the Supreme Court.

You can read more of my posts related to Raich here:
Medical Marijuana or State's Rights?
Raich handed down...
More on Raich...

And more general comments on the Commerce Clause and federalism here:
What is commerce?

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