EDITOR’S NOTE: This piece appears in the July 4th, 2005, issue of National Review.
The Supreme Court’s decision in the medical-marijuana case is being taken as the end of the “federalism revolution” that began under Chief Justice Rehnquist. The Court held that the feds could outlaw the medicinal use of marijuana, whatever California’s government (and voters) preferred. Six justices of the Court ruled that the feds could prohibit medical marijuana because the Constitution gave Congress the power to regulate interstate commerce. Justice Clarence Thomas, one of the three dissenters, said that if Congress could use the Commerce Clause to regulate sick people’s personal use of marijuana, “then it can regulate virtually anything–and the Federal Government is no longer one of limited and enumerated powers.”
This case does not, however, represent the first rumor of the federal revolution’s death. Two years ago, the Court ruled–again with the support of six justices–that Congress could subject state governments to lawsuits under the Family and Medical Leave Act. Many legal commentators thought that this decision, like the medical-marijuana decision, was hard to square with the Court’s previous pro-federalism decisions. Justice Ruth Bader Ginsburg, who had dissented from those pro-federalism decisions, crowed, “Federalism this term was the dog that did not bark.”
So is the federalism revolution over? No: For the revolution to be over it would have had to begin. The truth is that there never was a federalism revolution. . . .
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