Live by the Commerce Clause…
There's an interesting discussion (well, bits anyway) in the comments at this post on the Washington Monthly's blog Political Animal. Jacob Levy points out that, pace Kevin Drum, conservative pundits have mostly stayed true to their principles in their reaction to this decision. Interesting also to see a number of liberals saying things to the effect of: "I'm all for a broad Commerce Clause power, but this is obviously beyond the pale—growing pot for your own consumption isn't 'commerce'!"
The thing is, as another commenter notes, this seems in many ways to fall squarely within the scope of the Wickard v. Filburn ruling. Randy Barnett did his damndest to distinguish them, but if wheat grown for personal consumption (which might nevertheless indirectly affect prices in interstate wheat markets) falls under the commerce power, it's pretty tough going to argue that marijuana grown for personal consumption doesn't. If you think the court made the wrong call here, what it really entails is that you think the court should revisit Wickard. But stare decisis is a harsh mistress…
Addendum: Will Baude over at The New Republic makes an argument similar to (my recollection of) Barnett's: There needs to be an empirical showing that California would be unable to prevent Cali-pot from seeping into the interstate markets. Of course, there's still the Wickard-esque argument that patients unable to grow their own might have recourse to dope from the illegal market, some of which might come from out of state. (Though, really, if you're in California… why?) But you'd think the government would rather welcome a policy that had the effect of reducing demand in illegal interstate or international markets.
Also, Matt Yglesias makes me sad sometimes. He's right, I suppose, that a decision in Raich limiting federal power could have "bad consequences" from a modern-liberal perspective, but doesn't get at what one hopes would be the core question: Is there really a sane reading of the Constitution on which growing dope in your garden for your own use is interstate commerce?
