(HOST) The United States Supreme Court is finished with this year’s session. Commentator Cheryl Hanna is rethinking some of the Court’s rulings and what they might mean for Vermont.
(HANNA) I generally side with the more liberal justices on the Supreme Court. But ever since the medical marijuana case was decided, I’ve been reconsidering my position and, well, siding with the conservatives.
Earlier this month, the Court’s liberals held that people who use marijuana for medical purposes could be prosecuted under Federal Law even if the person’s own state legalized its use. The case directly affects Vermont as we’re one of ten states that allow for the medical use of marijuana. But this case is about more than marijuana. At issue is what rights a state has to pass its own laws free from Federal interference.
One of the enumerated Constitutional powers Congress has is to regulate interstate commerce. Originally, the Commerce Clause, as it’s known, was intended to give Congress the power to regulate transportation and goods that cross state lines so that the states couldn’t disrupt the economy. But over time, the reach of the com- merce clause expanded to give Congress the power to regulate all sorts of activities, including labor practices and environmental policy.
In fact, between 1937 and 1995, the Supreme Court never struck down one act of Congress under the Commerce Clause. The Court upheld a multitude of laws, including the Civil Rights statutes, which the Southern States claimed were unconstitutional. It had become conventional wisdom that the Federal Government, not the states, was the best protector of individual liberty.
But starting in 1995, the conservatives on the Court began to strike down Federal law. Like many folks, I feared that Congress wouldn’t be able to pass any legislation that would provide rights to minorities and others who are politically disenfranchised. But times have changed, and I’m beginning to see the wisdom of the state’s rights approach – well, as long as I live in Vermont anyway.
The medical marijuana case is a perfect example. We Vermonters voted to give rights to individuals that Congress will likely never grant. We also provide the right to civil unions and reproductive freedom. These rights and others Vermonters now take for granted could easily be swept away by an increasingly socially moralistic Congress, which, ironically, could care less about state’s rights, despite it’s conservative rhetoric. Unless the Court’s true conser- vatives intervene, our tiny state will have little say in social policy.
Next term, as we Vermonters debate whether we want a death with dignity bill, the Court will decide whether Congress can outlaw all physician-assisted suicide altogether. It’s not whether you’re for or against medical marijuana, or the right to die. The key question is whom do you trust most to make those decisions?
These days, I trust our local elected representatives, and my neighbors, a lot more than I trust Congress. And if that puts me on the same side as the Court’s conservatives, well, so be it, at least for now.
This is Cheryl Hanna.
Cheryl Hanna is a professor at Vermont Law School in South Royalton.