Should anyone be wondering why Stevens calls upon medical marijuana users and their supporters to seek change through political means when he did not make a similar recommendation for sodomites, keep in mind that the Lawrence plaintiffs argued for a right of privacy, which is anti-majoritarian. Raich does not argue for a right to consume pot, only for California's ability to permit it against a Congressional ban.But of course Volokh Conspirator David Bernstein already had said,
I was both amused and angered by Justice Stevens's paean to the democratic process as the appropriate avenue of relief for advocates of medical marijuana at the end of his opinion. Every Justice who joined Stevens's opinion voted to prohibit states from regulating homosexual sex in Lawrence and [if they were on the Court at the time] voted to limit the government's power to regulate abortion in Casey. Why was the democratic process not the appropriate avenue of relief for the victims of overzealous government regulation in those cases? It seems we do to some extent live under a system where the personal preferences of the Justices, having nothing to do with the history, text, or logic of the Constitution, dictate when the Supreme Court will or will not intervene to overturn particular regulations.
I feel very wary about arguing with a professor, but: Raich was a federalism argument. Lawrence and Casey were individual rights arguments. NOT THE SAME THING. If Raich decides to argue that she has a Constitutional right to be free of government interference in her consumption of medical marijuana, she's welcome to do so, but it will be a different argument than was made in this case.
Also, if I see one more person characterize the majority opinion in Lawrence as being about "homosexual sex," I'm going to declare myself a homosexual, because my right to privacy was at stake there. O'Connor's concurrence was the opinion that said that Texas's statute was invalid due to gender discrimination, because it criminalized only homosexual sodomy. Kennedy went the step further to invalidate Virginia's -- from whence I'm currently posting, and where I lived at the time of the decision -- and ten other states' No Sodomy for Anyone laws. And Virginia prosecuted heteros, too. For straight people to pretend that the Lawrence decision was a victory only for the privacy rights of homosexuals is foolish.
Obviously we breeders take even more of an interest in the right to be free of excessive government regulation when it comes to getting an abortion. The Democratic process wasn't invoked as an appropriate avenue of relief because Constitutional rights were at stake, and when you have a Constitutional right to wave around, it's very tempting to bypass the democratic process. If the Supreme Court smacks down your Constitutional right, then you start grubbing around in politics, which is exactly what's happened with medical marijuana -- the Court already declared Americans had no Constitutional right to it, so the cancer patients who need pot in order to have enough appetite not to starve to death lobbied their state legislatures and fellow voters. Now the Court is saying that lobbying at the state level isn't sufficient because Congress's commerce clause power permits it to invalidate states' permission for medical marijuana, so medical marijuana advocates will have to turn those positive nationwide poll results into Congressional action.
As I think Justice Stevens may be, I'm unhappy about the result in this case that will allow the feds to prosecute people for a victimless "crime" that is necessary to health and continued life. I'd even question whether the U.S. v. Oakland Cannabis Buyers' Cooperative Court decided correctly in accepting the highly-dubious Congressional finding that there is no medical use of marijuana. But as long as the Court refuses to see a Constitutional right involved in medical marijuana, the democratic process is the route its advocates must continue to take.