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December 01, 2004

Time for an Amendment

The Washington Post has an editorial today that is almost a textbook example of the problems with how the left prefers to govern: via the courts. The proximate cause of the Post's anxiety is Ashcroft v. Raich, a case currently before the Supreme Court that addresses California's right to maintain state laws regarding medicinal marijuana. California has a rather loose law allowing people to grow and use marijuana for personal use as long as they have a note from their doctor. The federal government claims that the Commerce Clause (Article I, Section 8, Clause 3: To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes) gives it the right to overrule that state law with federal antidrug laws.

The Post would be perfectly happy to allow California to continue permitting medical marijuana, but they're terrified that the Court will further restrict the federal government's powers. They point to various environmental and civil rights laws that would not pertain if the federal government wasn't permitted by the courts to overstep its ennumerated powers. They therefore call on the Court to act in accordance with Wickard v. Filburn, a 1942 case in which the Court ruled that the federal government could regulate the amount of wheat a man grew even if it was strictly for his personal use and was not involved in interstate commerce. Under Wickard, the government has the same ability to ban marijuana growing as it does to prevent you or I from sowing a field of corn or beans. No overstretch there.

The Post wants to sustain this federal overstretch because it is a predicate for many federal actions the Post likes. This is, however, precisely why the Constitution contains rules for amendments. Despite the paranoid ravings of the far left, there is a pretty solid consensus in this country in favor of environmental regulation. The amendment process might require some compromise on both sides, since we don't all agree on means even as we concur on the end result (rivers we can drink from, air we can breathe, etc.), but that debate is overdue. We turned environmental regulation from a valuable tool into farce years ago, peaking with the ridiculous 2001 claims that President Bush was trying to poison the water supply because his administration wanted to take a second look at last-minute Clinton administration regulations on the permissable amount of arsenic in groundwater supplies. It's easy to argue that we shouldn't have any, but that fails to take into account what that would do to the price of the water. Better to do the research necessary to see what levels of natural arsenic can be tolerated by the human body and make sure the water is safe without going overboard and pricing a rather important resource out of the reach of many Americans.

Amending the Constitution would not only provide a salutary opportunity for us to openly discuss the best methods for accomplishing certain goals, it would also restore something we gave away in the 20th century: the rule of law. While there will always be room for argument regarding the correct way to interpret the law, we ought to come together and agree on some basics. I would argue in favor of two things: Randy Barnett's presumption of liberty and the assumption that the law means what is written. Barnett's presumption of liberty simply states that when the government passes a law, the burden of proof in the courts is on the government to prove the necessity of any law restricting freedom, as opposed to the current system which presumes that a law is Constitutional unless the people can demonstrate otherwise. Simply shifting that burden of proof would go far towards protecting the average person from government overreach. The second premise seems simple enough, yet somehow we see it ignored frequently in the courts today. The Constitution is pretty direct in laying out what the federal government can and cannot do. Yet the courts have been ignoring that for decades, as in the commerce clause. While the Rehnquist court has started placing a few limits on the use of the commerce clause, there is still much work to be done in that area. A rollback of fourth amendment abuses would be an excellent start. But that's neither here nor there. The key is to come up with a consistent standard for the courts to use when we have disputes over the laws. Only when the law is interpreted consistently under a single set of premises can we truly return to the rule of law.