The left generally believes that federal regulation of wages, hours, and child labor should apply to an employer that conducts no business beyond the boundaries of the state in which in it is situated. Some on the right believe Commerce Clause regulation of the terms and conditions of employment should not extend to businesses that never operate beyond the state’s borders.

Some on the left (and some on the right) supported the Gun-Free School Zones Act (making it a federal crime to possess a gun in a school zone) and the Violence Against Women Act (permitting a federal civil suit against perpetrators of gender-based violence). The Supreme Court retreated from its usually expansive view of the Commerce Clause by striking down those laws on the ground that they were insufficiently grounded in the regulation of interstate commerce.

Most on the left (and even some on the right) believe the federal government has no business criminalizing the growing and possession of marijuana for personal use or for intrastate distribution. As Justice Stevens points out, taking that stand in Raich may have undermined economic regulation of intrastate commerce.

Ideally, the Supreme Court would distinguish between economic regulation and criminal legislation, putting a halt to what has become the federalization of essentially local criminal activity while giving Congress greater latitude to regulate other aspects of the economic realm. That hasn’t happened and isn’t a likely outgrowth of the Court’s Commerce Clause precedent. Hence, Justice Stevens’ dilemma.

For now, the solution must be legislative. Congress should put an end to marijuana hysteria and recognize that states have a legitimate interest in permitting the medical use of pot. And while they’re at it, federal legislators should recognize that each new “crime of the week” doesn’t require federal prohibition. States are capable of enacting their own criminal laws; they rarely need a federal assist.