Justice O'Connor's powerful dissent in Raich

 
Consider this passage from Justice O'Connor's dissent in Raich (some edited from casebook):

 

The Court’s definition of economic activity is breathtaking. It defines as economic any  activity involving  the production, distribution,  and  consumption  of  commodities. And  it   appears  to  reason  that  when  an  interstate  market  for  a  commodity  exists, regulating the  intrastate manufacture or possession of that commodity is constitutional either because that  intrastate activity is itself economic, or because regulating it is a rational part of regulating  its market. Putting to one side the problem endemic to the Court’s opinion—the shift in focus from  the activity at issue in this case to the entirety of what the CSA regulates, see  Lopez . . .  (“depending on the level of generality, any activity can be looked upon as commercial”)—the Court’s  definition of economic activity for purposes of Commerce Clause jurisprudence threatens to sweep  all of productive human activity into federal regulatory reach.

. . . It will not do to say that Congress may regulate noncommercial activity simply because  it   may  have  an  effect  on  the  demand  for  commercial  goods,  or  because  the noncommercial  endeavor can, in some sense, substitute for commercial activity. Most commercial goods or services  have some sort of privately producible analogue. Home care substitutes for daycare. Charades games  substitute for movie tickets. Backyard or windowsill  gardening  substitutes  for  going  to  the   supermarket.  To  draw  the  line wherever private activity affects the demand for market goods is  to draw no line at all, and to declare everything economic. We have already [explicitly] rejected  [in Lopez] the result that would follow—a federal police power. . . .

In Lopez and Morrison, we suggested that economic activity usually relates directly to commercial  activity. . . . The homegrown cultivation and personal possession and use of marijuana for medicinal purposes has no apparent commercial character. Everyone agrees that the  marijuana at issue in this case was never in the stream of commerce, and neither were the supplies  for growing it. (Marijuana is highly unusual among the substances subject to the CSA in that it can  be cultivated without any materials that have traveled in interstate commerce.) Lopez makes clear  that possession is not itself commercial activity. . . . And respondents have not come into  possession by means of any commercial transaction; they have simply grown, in their own homes, marijuana for their own use, without acquiring, buying, selling, or bartering a thing of value. . . .