Want a depressing read, hot for summer? Try Justice John Paul Stevens's decision in Gonzales v. Raich. In that long document, the majority of the Supreme Court ruled against voter-enacted, state-defended medical marijuana and came down four-square for the dangerous, twisted, modern reading of our Constitution's Commerce Clause.

Want a more upbeat read, instead? Try any newspaper account of Wednesday's Senate confirmation of judicial nominee Janice Rogers Brown to the D.C. Circuit Court of Appeals. After fended-off threats of filibuster ? and the "nuclear option" to get around the filibuster ? the deed is finally done.

The two stories are connected, and not just because they deal with the judiciary. The connecting issue is limited government and the strict construction of the Constitution. Though the majority court came down against both notions, the minority did not. And Ms. Brown, now closer to a spot on the nation's highest court, would almost certainly side with the minority and against the federal government. Which brings me to my question:

Upon which side will conservatives and Republicans ultimately weigh in? Unlimited federal regulatory power, or state prerogatives and a federal government of enumerated (and thus limited) power?

Commerce Claws
At issue in Gonzales v. Raich was whether the state of California could, in effect, nullify federal law regarding a few citizens' use of a once commonly grown plant, hemp (cannabis, marijuana) according to criteria put into law by a voter-enacted initiative, Proposition 215, and later codified as the Compassionate Use Act of 1996. The idea was simple: enable seriously ill people to use the drug for medical purposes. To do this, doctors were exempted from criminal prosecution for prescribing the drug, and patients and primary caregivers were exempted from prosecution for cultivating and possessing the drug. The Supreme Court held that the Constitution's Commerce Clause did indeed grant Congress the authority to prohibit any cultivation and use of marijuana, even so far as to trump California law.

In his majority decision, Justice Stevens restates the worst elements of modern jurisprudence. Even if an activity is local and may not be regarded as commerce, "it may still," says the Court, "whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce." Of course, "substantial" does not mean what an economist might expect it to mean ? that is, that if producing the good in question would then change the general price level for that good in some other state. Nope. Nothing as common-sensical as that. Any conceivable effect counts as "substantial." And, with this hyper-loose interpretation of the Commerce Clause, Congress may do pretty much anything.

There's nothing new here, of course. Ever since the court backed FDR's insane agricultural policy on the grounds of the Commerce Clause, our federal government has operated without much of a limit.

Justice Sandra Day O'Connor ? along with fellow-Republican appointees William H. Rehnquist and Clarence Thomas ? dissented from the decision. She wrote that though the effect of California's law on interstate commerce in marijuana was "plausible," she did not think the case had been substantiated. Stevens dismisses her argument. The fact that "the national and international narcotics trade has thrived in the face of vigorous criminal enforcement efforts suggests that no small number of unscrupulous people will make use of the California exemptions to serve their commercial ends whenever it is feasible to do so." In other words, the majority court presumes that some marijuana users who by law cultivate marijuana will disobey the law and grow more than legal, and that the mere existence of guilty persons nullifies the rights of innocent persons.

Bye-bye, innocent until proven guilty.

Unsurprisingly, the majority Court was not particularly interested in the medical details. "We have never required Congress to legislate with scientific exactitude. When Congress decides that the 'total incidence' of a practice poses a threat to a national market, it may regulate the entire class." Down to the last dying cancer patient, apparently.

Reasonable Dissent
If manna were to fall from the heavens, and were it to possess an intense psychoactive effect, our government would still try to prohibit it under the rubric of "the war on drugs." This war is not in essence about commerce. It's not truck and barter and price levels that concerns drug warriors. It's the fact that some people are getting hedonistic pleasure and doing themselves varying degrees of harm in the process. If manna were the source of such dangerous pleasures, the government would make it illegal to pluck if off the ground.

You know it, I know it, and our judges know it. But, because the "Commerce Clause" of the Constitution gives the federal government its slimmest of excuses to regulate drug use, that's how it's done. We live in a strange world. It's as if our leaders were on drugs.

Not everyone agrees with the status quo excuses, of course. Sandra Day O'Connor still holds to something like the original view of the Constitution: Continued...