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On Marijuana, Elizabeth Warren Discovers She Agrees With Clarence Thomas

More signs of the coming left-right convergence on marijuana legalization.

Elizabeth Warren, meet Clarence Thomas.

Senator Warren (D-Mass.) is in the headlines for joining with Senator Cory Gardner (R-Colo.) to introduce the Strengthening the Tenth Amendment Through Entrusting States Act. That legislation would, as Warren put it in a tweet, "let states, territories, & tribes decide for themselves how best to regulate marijuana—without federal interference."

Justice Thomas is Warren's natural ally on the issue. He wrote an emphatic dissent in the 2005 Supreme Court case Gonzalez v. Raich. Gonzalez was President George W. Bush's attorney general Alberto Gonzalez, and Angel Raich is an Oakland, Calif., woman who used locally grown marijuana for medical reasons.

The dissent by Thomas focused not on the advantages or disadvantages of marijuana use but on the Commerce Clause of the Constitution. That clause states, "The Congress shall have Power...To regulate Commerce with foreign Nations, and among the several States."

The Thomas dissent begins: "Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers."

Justice Thomas went on: "Respondents' local cultivation and consumption of marijuana is not 'Commerce...among the several States.' By holding that Congress may regulate activity that is neither interstate nor commerce under the Interstate Commerce Clause, the Court abandons any attempt to enforce the Constitution's limits on federal power."

As Thomas pointed out, "When agents from the Drug Enforcement Administration raided Monson's home, they seized six cannabis plants. If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption (not because it is interstate commerce, but because it is inextricably bound up with interstate commerce), then Congress' Article I powers—as expanded by the Necessary and Proper Clause—have no meaningful limits."

One of the first columns I wrote after the 2016 presidential election was headlined "The Left Discovers Devolution." It began, "It took an election that gave the Republican Party control of the White House, the Senate and the House of Representatives, but at long last the American left is starting to discover the virtues of devolving authority to state and local governments."

Warren's marijuana bill is a fine example. The left now loves states' rights, or city's rights, when it comes to immigration ("sanctuary cities") and marijuana. Some state and local governments are also raising minimum wages, restricting access to firearms, or taking environmental measures such as banning plastic bags.

Yet the left's support for local control is highly situational. When Republicans suggest that matters such as, say, abortion rights, or marriage equality, might be better resolved at state levels, Democrats object.

The Constitution is a useful guide here. It specifies some matters—slavery, in the 13th Amendment; the right to vote regardless of gender, in the 19th Amendment—that are not up to state or local governments but that are uniform on a national basis. As the Tenth Amendment puts it, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

As Justice Thomas realized back in 2005, the question of marijuana regulation offers an opportunity to revisit the entire misguided history of Commerce Clause jurisprudence that goes back to Wickard v. Filburn (1942) and even before that to the Shreveport Rate Cases (1914). In those cases, the Supreme Court held that the Constitution's Commerce Clause gave the federal government the power to control how much wheat a farmer could grow for his own consumption on his own farm, and the prices set by railroads, even if the wheat farm or the railroad were entirely within the boundaries of a single state.

Senator Warren, who was a Harvard law professor before she became a professional politician, hasn't exactly established a reputation for deferring to the states. The federal Bureau of Consumer Financial Protection that she championed arguably duplicates the work of state attorneys general. The Obamacare law she defends is a case of Washington imposing its will on state health insurance markets.

Perhaps the cannabis issue can bring Senator Warren to a strict construction of the Commerce Clause and an appreciation of the Tenth Amendment as a matter of general principle, rather than on this one particular issue.

President Trump was asked on Friday about the legislation and his answer was, "I support Senator Gardner. I know exactly what he's doing...We're looking at it. But I probably will end up supporting that, yes."

If President Trump does eventually sign the legislation into law, let him invite Justice Thomas and Senator Warren to the signing ceremony. And in Trump's remarks, let the president quote Thomas's dissent about "limited and enumerated powers." It's potentially relevant to a lot of issues beyond medical marijuana.

Ira Stoll is editor of FutureOfCapitalism.com and author of JFK, Conservative.

Photo Credit: Bill Clark/CQ Roll Call/Newscom

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  • Jerryskids||

    Yet the left's support for local control is highly situational.

    Yes, we all know what "my body, my choice" really means.

  • Johnimo||

    "My body, my choice," but you - the taxpayers - have to pay for it.

    The left is not pro choice on anything. Hell, they won't even allow a baker to chose which customers he decorates cakes for. Maybe when a Nazi walks into the bakery and demands a birthday cake with a big, black swastika on it, then .... just maybe then .... they will get it through their totalitarian skulls.

    Don't hold your breath.

  • Eidde||

    I think the current line is "we'll force you to bake the cake, but maybe we'll leave the customer to do the decorating if the decoration offends your precious conscience."

    So if a baker is in the habit of making cakes for the feasts of other religions, then they'll be obligated, in the name of religious equality, to make a Hitler's birthday cake for the Aryan Nations Church. But the Aryan nations will have to put the "Happy Birthday, Mein Fuhrer" lettering on the cake.

  • EscherEnigma||

    Yet the left's support for local control is highly situational.


    Fixed it for you.

    Almost no one has non-situational support for local control/state rights. Across the political spectrum, you find that support for state's right almost exclusively correlates with "can we get away with this at the national level?"

    Try to claim this is a partisan failing at your own peril.

  • wearingit||

    Yep. Rs, who love states' rights right?, want to limit abortion on a national level or pass nationwide concealed carry laws, etc. suddenly love big govt huh?

    Simply put- it's all about how your power can best be exercised. If your outcome is better achieved through states' rights, you'll go that way. If federal, etc. etc.

  • Bubba Jones||

    California will not issue non-resident carry permits.

    National carry permit reciprocity is a question of equal protection.

  • R. K. Phillips||

    And maybe some full faith and credit issues, as well.

  • Malvolio||

    When the state tries to interfere with the rights of US citizens within its borders, that's when Federal intervention is justified.

    In the case of abortion, you can make an argument that the Federal government has the right to outlaw it or to require states to permit it.

    Guns, the Feds can only impose looser standards, not tighter ones.

  • Eidde||

    When prolifers wanted to amend the Mississippi Constitution to require, amond other things, that "person" in the due process clause included unborn persons, this was denounced as a ban on abortion.

    After all, what would be a greater negation of due process than to deprive a person, born or unborn, of life without trial?

    And if you object that the killing is done by private parties, the same is true of outlawry, yet outlawry requires due process.

  • D-Pizzle||

    It was the Warren Court that nationalized abortion policy. Prior to Roe v. Wade, it was left to the discretion of the states. I suspect that you actually do not have a problem with the Court's action in this case.

  • Kermudjin||

    The hypocrisy of both parties does not stop at States Rights. It applies to individual rights, as well.

    Consider the following proposition: "The government has a duty to stop individuals from engaging in consensual behavior that may be harmful to them."

    What does the Left say? If the issue is smoking, they agree; if sodomy, they disagree.

    What does the Right say? Just the converse.

    There is no logical consistency in what the R's and D's think govt is responsible for. It always becomes a matter of expediency, based on what emotional valence a contemporary issue has for the party in power.

    How about abortion and seat belts?

    Or guns and cannabis?

    On and on...

  • sarcasmic||

    comments got nuked

  • Chipper Morning Baculum||

    Well, I am not going to repeat my hilarious comment that tied together Warren's hypocritical cultural appropriation, Lakota beliefs about the afterlife, and a Bohm-Bawerkian marginal pair analysis of the millinery trade in the twilight of the 19th century!

  • sarcasmic||

    Nor am I going to point out to John that protectionism isn't very libertarian.

  • MiloMinderbinder||

    That clause states, "The Congress shall have Power...To regulate Commerce with foreign Nations, and among the several States."

    No that clause states (in full): To regulate Commerce with foreign Nations, and among the several States, and the Indian Tribes"

    Not sure how you could overlook that with Senator Warren's involvement in the issue.

  • Rigelsen||

    Sure, Congress may be able to regulate commerce involving Senator Warren, but not sure that's relevant to the discussion otherwise.

  • Marcus Aurelius||

    Congressmen are above the law when it comes to insider trading, not sure if EW necessitates special special status in that regard...

  • UnrepentantCurmudgeon||

    Since Warren is not a member of any Indian tribe it does not seem to create a problem

  • Dillinger||

    Filburn got jacked.

  • Incomprehensible Bitching||

    You can take your dog whistle racism and go shove it up your doggie door!

  • Marcus Aurelius||

    Did whistle rapism?

  • This Machine Chips Fascists||

    Alt text:

    Finger to the wind
    Summer brings evolution
    From the mouth agape

  • Rich||

    Beautiful.

  • BigT||

    "Perhaps the cannabis issue can bring Senator Warren to a strict construction of the Commerce Clause"

    Hahaha!!

    She'd have to smoke plenty of peace pipes!!

  • Juice||

    The Constitution is a useful guide here. It specifies some matters—slavery, in the 13th Amendment; the right to vote regardless of gender, in the 19th Amendment—that are not up to state or local governments but that are uniform on a national basis.

    But for some reason, the Bill of Rights was not considered to apply to the states until the 14th amendment even though nothing in their language made exceptions for the states (except the 1st).

  • UnrepentantCurmudgeon||

    Because the Bill of Rights was generally understood to apply to the U.S. Constitution and was not binding on the states, which had their own constitutions. The 14th Amendment was passed only after Lincoln's War obliterated that federalist nicety, making the states mere fiefdoms for the federal government. These recent developments are in that light rather humorous, since the people advocating breaking from federal policy on marijuana, sanctuary cities, etc., would have none of it when it came to civil rights. I guess it all comes down to whose ox is being gored.

  • Ken Shultz||

    Elizabeth Warren's ideas, press releases, and photo ops deserve none of our intellect, reason, or powers of persuasion.

    Elizabeth Warren can suck my dick. Fuck her noise, and the horse she rode in on.

  • Marcus Aurelius||

    Truth

  • crufus||

    "...If President Trump does eventually sign the legislation into law, let him invite Justice Thomas and Senator Warren to the signing ceremony. And in Trump's remarks, let the president quote Thomas's dissent about "limited and enumerated powers."..."

    That would assume Trump is somehow in favor of limiting the power of the federal government.

  • RodgerMitchell||

    There is a fundamental difference between abortion rights and marriage rights vs. marijuana and sanctuary cities, and I suspect Ira Stoll, the author of the article, knows this: The right wing almost always favors restricting human rights.

    Thus, restricting abortion and gay marriage by red states is an affront to human rights. And restricting marijuana and sanctuary by a "red" national government also is an affront to human rights.

    So, for those who want the law to advance human rights, it makes sense that the issues be treated.

    But for those who demand a strict interpretation of the law, with no logic involved, let them first consider a strict interpretation of the words, "A well-regulated militia, being necessary to the security of a free state."

  • Bubba Jones||

    A strict interpretation of those words is that all Federal firearms laws are unconstitutional, but California can regulate firearms to the extent they don't violate the Privileges and Immunities clause of the 14th.

    Is that the answer you were looking for?

  • Davy C||

    Perhaps the problem is that we have different views on what in included is "human rights". Forcing other people to acknowledge my marriage is not included in my definition. Neither is being able to kill my kid without punishment; my opinion is that's the complete opposite of human rights. The ability for cities to refuse to enforce immigration law is a matter of federalism rather than human rights; if you have a human rights problem with the immigration laws then you should probably address them at the federal level. The ability to practice my religion, on the other hand, is way up there.

    A strict interpretation of those words is that a well-regulated militia is necessary to the security of a free state. I would ask for your interpretation of "shall not be infringed", but apparently you don't think the words really matter, so it's pointless.

    So, for those who want the law to advance human rights

    Those who want the law to advance human rights should first take care that they don't destroy the law to do so.

    And when the last law was down, and the Devil turned round on you — where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast — man's laws, not God's — and if you cut them down — and you're just the man to do it — d'you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake.
  • LarryA||

    Those who want the law to advance human rights should first take care that they don't destroy the law to do so.

    "Advancing human rights" is the purpose of the law.

    We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.
  • Incomprehensible Bitching||

    Hmmm. That means well-regulated militias are necessary to the security of a free state.

    Which obviously implies that whatever comes next must only apply to militias, and nothing else, ever.

    Logic says check and mate!

  • D-Pizzle||

    See 10 USC Section 311 and weep. Check and mate!

  • ClassicLiberal||

    While I do agree with you about conservatives, progressives are just as bad.

    As a strict interpretation of the law, militia at the time meant all able bodied males in the country. NOT a standing military, which was strictly opposed by most at the time. Also notice that "state" is lower case, which would mean a state of freedom, not a government body. The militia was supposed to not only defend the country from foreign invaders, but from their own over-reaching government as well. Kind of hard to do when said government has all the power of force, and it's citizens have none.

  • IndependentTexan||

    Whatever in the world makes you think our current POTUS favors limiting the power of the federal government?

  • Rockabilly||

    I smoke what I want.

    I don't need government permission.

  • ||

    "Perhaps the cannabis issue can bring Senator Warren to a strict construction of the Commerce Clause and an appreciation of the Tenth Amendment as a matter of general principle, rather than on this one particular issue."

    This was a good joke. Thanks for the chuckle!

  • WillPaine||

    "The drug war was not about drugs. We were afraid of the counter culture, and people of color." H.R. Haldeman, Nixon's right hand man;(also known as Nixon's son of a bitch).

  • vek||

    Ending the war on weed would be a good start. It would certainly remove a lot of pointless spending and needless arrests. IMO if Trump were smart he would PUSH for decriminalizing it nationally because it would be a SUPER popular move with the vast majority of the country. No bible thumper R is going to go and vote for whatever crazy Democrat runs against him in 2020 over him legalizing weed, and he may sway a lot of middle of the road folks a bit his direction. He is a "populist" after all, and weed is pretty popular! LOL

  • D-Pizzle||

    Some of those "bible thumpers" (as you so cordially and respectfully put it) actually are pro-legalization.

  • vek||

    Of course some are... But let's get real, a good chunk of religious conservatives are against legalization. It's almost certainly the largest single block of people that seem to remain nowadays. I actually like bible thumpers for the most part. A hell of a lot better than purple haired SJW freaks! It's just easier to say that than type out Christian Conservative or whatever. I guess SoCon would be even shorter to type though!

  • markm23||

    Nearly everyone's support for local control is highly situational. Remember how "conservative" Republican appointees Stevens and Scalia upheld federal marijuana laws in Gonzales vs. Raich - Scalia, the architect of the modern states rights movement, reversed course and upheld a federal law reaching even further than the wheat regulations in Wickard v. Filburn. That is, the wheat regulations included a personal use exemption; Fillburn may have been within the law if he had only grown as much wheat as his family could grind to flour and eat themselves, but he was feeding cattle, which would have been sold commercially. Federal marijuana laws ban even a single leaf - it does not "regulate" an interstate market, but attempts to destroy it, as well as banning non-commercial and intrastate commerce. The only principle involved in Scalia's and Stevens's opinions was that they hated marijuana too much to care about constitutional fundamentals.

    On the other hand, "liberal" O'Connor discovered an absolute rather than technical limit to federal power for the first time in her career, joining Thomas and Rehnquist in dissent. There was one way that this split could have been predicted: ignore every Justice's stated principles and previous decisions, and look at whether they or their loved ones had ever been treated for cancer. Thomas, Rehnquist, and O'Connor all had that experience. The other six didn't.

  • JuanQPublic||

    This isn't impressive. It should be considered that this is so long overdue (along with other federal strongarm policies that coerce states and individuals), we are only just approaching reason on this. It's welcome, but for many decades, people have fallen victim to insane federal and state drug law. This should only be considered opening the door to rational policy, as much more needs to be done to decriminalize all non-violent drug activity.

  • Emotional Opposition Animal||

    Main difference being that Thomas stated his position 13 years ago, when the public was mostly against MJ legalization, and equally applicable to other drugs. whereas Warren's only applies to MJ and comes after the public has come out in favor of MJ legalization.

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