Shostack + Friends Blog Archive


Madison, The Bill of Rights, Raich

The Supreme Court today handed down a decision in “Gonzales vs. Raich.” Larry Solum has done outstanding work blogging it. The essence of the case was the limits of the commerce clause, and the case was decided that the commerce clause places, essentially, no limits on what Congress may legislate.

Respondents nonetheless insist that the CSA cannot be constitutionally applied to their activities because Congress did not make a specific finding that the intrastate cultivation and possession of marijuana for medical purposes based on the recommendation of a physician would substantially affect the larger interstate marijuana market. Be that as it may, we have never required Congress to make particularized findings in order to legislate, see Lopez, 514 U. S., at 562; Perez, 402 U. S., at 156, absent a special concern such as the protection of free speech, see, e.g., Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 664?668 (1994) (plurality opinion).

(emphasis by Larry Solum).

I am reminded of Madison’s arguments against the bill of rights: That a bill of rights was not needed, because the powers of government were carefully enumerated in the Constitution, and that over time, a bill of rights would be seen as protecting only those rights enumerated, rather than the liberty of the people generally.

I have never been less fond of his argument than today.

One comment on "Madison, The Bill of Rights, Raich"

  • Tony Vila says:

    Of course, one can look at it the opposite way, and that the BoR is the only thing holding the government in check at all.
    Do you think if there was no BoR our legislators would practice more restraint?

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