Op-ed I'm shopping around
I studied hard for those first-year law exams. I labored to learn precisely what Congress can and cannot regulate under the Interstate Commerce Clause of the Constitution. In Property class, we learned that government cannot simply transfer private property from A to B. Next year’s incoming law students will have a much easier time of things, as the Supreme Court recently eliminated all that complexity in two troublesome rulings.

Gonzales v. Raich involved a California woman who suffers from tumors, seizures, and sensitivities to conventional drugs. The only medicine that allows her to function on a daily basis is marijuana. Backed by her doctors and California’s medicinal marijuana law, Angel Raich grows her own marijuana and smokes it. That is, until the feds began raids, claiming authority under the Interstate Commerce Clause.

Ms. Raich’s marijuana is neither interstate (it never even leaves Oakland, CA) nor commerce (it is not bought or sold). Nevertheless, the "liberal" justices on the Court concluded that Congress’s power "to regulate commerce . . . among the several states" includes Ms. Raich’s marijuana, over the objections of Chief Justice William Rehnquist and Justices Sandra Day O’Connor and Clarence Thomas. This extremist ruling ignores the plain text and original meaning of the Constitution, and endorses the view that every economic and social decision should be made by Washington in a very high-stakes political game.

In Kelo v. City of New London, a town decided that Suzette Kelo’s neighborhood would look better as a Pfizer research facility. (How much money Pfizer contributed to local politicians is not in the court record.) Ms. Kelo obtained help from the Institute for Justice, a libertarian public interest firm, to stop the government from seizing her home.

The key phrase here is "public use," which the Fifth Amendment requires for such a taking. As Justices O’Connor and Thomas explain in their dissenting opinions, “public use” has historically meant "used by the public" – government owned or open to the public. City halls, roads, parks, rail lines, utilities, and waterways are examples. Never has the Fifth Amendment permitted takings simply to give to a private party. Until Kelo.

Just as the government will take away Ms. Raich’s medicine, the bulldozers will soon demolish Ms. Kelo’s house. The Court adopted a new and lax definition of public use – whatever the government says is a public purpose. It’s a perverse decision, amounting to little more than an "honor system" where the only check on eminent domain abuse is the very same abusers. As Pfizer knows, property rights will now depend on political connections.

Since the Founding, government bore the burden of proving to courts that its actions are constitutional. The Court majority has now adopted the opposite view: whatever government does is legitimate unless ordinary people like Ms. Raich and Ms. Kelo prove that it’s not, using standards so deferential that judicial review may as well not exist.

Especially troubling is the Court's incoherence. They properly struck down sodomy laws in 2003 after Texas failed to justify them constitutionally, and have blocked attempts to regulate the Internet and flag desecration as infringing on free expression. But that means that sodomy, pornography, flag burning, and privacy – none of which are mentioned in the Constitution – enjoy less protection than intrastate non-commercial activities and private property – both of which are explicitly protected in the Constitution. So maybe it’s not so bad for me; next year’s incoming law students will have trouble making sense of it all.

Raich and Kelo sided with drug warriors and corrupt cities over cancer patients, homeowners, and the Constitution. I've learned that a good law exam applies the law to new situations to achieve a just and consistent result. The Court did the opposite – they invented new law and ignored plain language to achieve unjust and incoherent results. I know what grade my professors would give them.

Joseph Henchman is from California and currently attends George Washington University Law School in Washington, D.C.