Medical Marijuana Case:

Of course, like all of the other libertarian bloggers, I think Randy Barnett is a saint for his work, fighting on behalf of medical marijuana. Let me try to make a few points on the future Court decision, that perhaps not yet have been raised by others.

We all know that the liberals who may be amenable to the social policy of letting sick patients smoke marijuana (Souter, Stevens, Ginsburg, and Breyer) do not, based on their past dissents in Lopez and Morrison, support the rationale that underlies Barnett's argument—that Congress exceeded its commerce power (they believe Congress has virtually unlimited Commerce Power).

Also, the social cons—Rehnquist, Scalia, and Thomas—who support the more limited reading of the commerce clause, may balk when using this theory to support an illegal drug.

Has anyone mentioned the fact that this issue may be different for Rehnquist, now that he is going through the excruciating cancer treatments, that he may be far more sympathetic to those who wish to use anything they can, anything they think has the remotest chance of working, to treat those horrific symptoms?

I predict Thomas will vote to strike down the law. He is a consistent, principled, jurist. And based on his dissent in Lopez, he believes in a super-stripped down version of the Commerce Clause; there is no way Thomas believes that Congress has within its commerce power, the power to prevent individuals from using or cultivating marijuana in non-commercial circumstances.

Kennedy, who has strong libertarian tendencies, may surprise us with a very anti-libertarian position; I have heard him, in the past, speak on the drug issue and he sounded like an anti-drug reactionary (sounded like he bought—hook, line and sinker—into anti-drug hysteria).

Finally, imagine—a strong possibility, I think—a Court opinion striking down the law as unconstitutional, but with a plurality opinion that leaves no majority constitutional rationale for the decisions. For instance, a minority of the conservatives—say Rehnquist, Thomas, and O’Connor—striking down the law based on Congress’s lack of Commerce Power, joined by a few of the liberals who find some other basis for why the law is unconstitutional (privacy?).