Raich as Constitutional Law Doctrine:
First of all, let me just say I’m delighted to be here guest-blogging. I’m planning on cross-posting most or all of my contributions over at the Volokh Conspiracy, but I think the idea of using this site as a home base for a discussion of Raich is a pretty interesting one.
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?