Posted by Orin Kerr:
Raich as Constitutional Law Doctrine:
http://volokh.com/archives/archive_2005_06_05-2005_06_11.shtml#1118080033
There's lots to say about the Raich opinion, but let me start with a
tentative thought: Whatever normative views you have about the proper
scope of the Commerce Clause, or of the merits of medical marijuana as
policy, isn't the opinion by Justice Stevens relatively unremarkable
as an application of existing constitutional law doctrine? At least
based on my initial read, the majority opinion doesn't seem to break
much new ground. It accepts the preexisting doctrinal framework for
interpreting the Commerce Clause, and it reasons by analogy to Wickard
and distinguishes Lopez and Morrison. Every majority opinion adds a
new data point, of course, but this data point seems less surprising
and new than many others. Indeed, my initial sense is that the most
interesting parts of Raich are the concurring and dissenting opinions
rather than the majority opinion. Any thoughts?
(Cross-posted at SCOTUSblog; to leave a comment, please do so
[1]here.)
References
1.
http://www.scotusblog.com/movabletype/archives/2005/06/raich_as_consti.html#comments
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