Posted on 06/06/2005 2:09:50 PM PDT by P_A_I
In McCulloch v. Maryland, (1819), this Court, speaking through Chief Justice Marshall, set forth a test for determining when an Act of Congress is permissible under the Necessary and Proper Clause:
"Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional."
To act under the Necessary and Proper Clause, then, Congress must select a means that is "appropriate" and "plainly adapted" to executing an enumerated power; the means cannot be otherwise "prohibited" by the Constitution; and the means cannot be inconsistent with "the letter and spirit of the Constitution."
The CSA, as applied to respondents' conduct, is not a valid exercise of Congress' power under the Necessary and Proper Clause.
_______________________________________________________
Scalia:
As Chief Justice Marshall wrote in McCulloch v. Maryland, even when the end is constitutional and legitimate, the means must be "appropriate" and "plainly adapted" to that end. Moreover, they may not be otherwise "prohibited" and must be "consistent with the letter and spirit of the constitution." These phrases are not merely hortatory. For example, cases such as Printz v. United States, (1997), and New York v. United States, (1992), affirm that a law is not " 'proper for carrying into Execution the Commerce Clause' " "when [it] violates [a constitutional] principle of state sovereignty."
The application of these principles to the case before us is straightforward. In the CSA, Congress has undertaken to extinguish the interstate market in Schedule I controlled substances, including marijuana.
The Commerce Clause unquestionably permits this.
_______________________________________________________
Here we see two 'conservatives' quoting the same decision and arriving at opposite conclusions.
I can only conclude that Scalia is not quite the conservative he claims to be.
Safe bet in this instance, since it's Scalia who's joining the liberal wing of the Court..
Instead of saying what the law says I will make it say what I want.
"The legislative powers vested in Congress are specified and enumerated in the eighth section of the first article of the Constitution, and it does not appear that the power proposed to be exercised by the bill is among the enumerated powers, or that it falls by any just interpretation with the power to make laws necessary and proper for carrying into execution those or other powers vested by the Constitution in the Government of the United States."The power to regulate commerce among the several States" can not include a power to construct roads and canals, and to improve the navigation of water courses in order to facilitate, promote, and secure such commerce with a latitude of construction departing from the ordinary import of the terms strengthened by the known inconveniences which doubtless led to the grant of this remedial power to Congress.
To refer the power in question to the clause "to provide for common defense and general welfare" would be contrary to the established and consistent rules of interpretation, as rendering the special and careful enumeration of powers which follow the clause nugatory and improper. Such a view of the Constitution would have the effect of giving to Congress a general power of legislation instead of the defined and limited one hitherto understood to belong to them, the terms "common defense and general welfare" embracing every object and act within the purview of a legislative trust. It would have the effect of subjecting both the Constitution and laws of the several States in all cases not specifically exempted to be superseded by laws of Congress, it being expressly declared "that the Constitution of the United States and laws made in pursuance thereof shall be the supreme law of the land, and the judges of every state shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding." Such a view of the Constitution, finally, would have the effect of excluding the judicial authority of the United States from its participation in guarding the boundary between the legislative powers of the General and the State Governments, inasmuch as questions relating to the general welfare, being questions of policy and expediency, are unsusceptible of judicial cognizance and decision."
Or, alternately, you could conclude that the job of a judge can be extremely difficult.
If you don't like the law, work to overturn it.
If Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands; they may appoint teachers in every State, county and parish and pay them out of their public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may assume the provision of the poor; they may undertake the regulation of all roads other than post-roads; in short, every thing, from the highest object of state legislation down to the most minute object of police, would be thrown under the power of Congress. Were the power of Congress to be established in the latitude contended for, it would subvert the very foundations, and transmute the very nature of the limited Government established by the people of America.
-James Madison
On the contrary, I think he's exactly as conservative as he claims to be, which is in fact less conservative than Thomas. For example, Thomas is supposedly more willing to ignore the tradition of stare decisis than Scalia is; which in English, means that Scalia places more emphasis on respecting prior court decisions, even when they violate his own conservative principles. Thomas is more willing to overturn past wrong decisions.
I like to bet on sure things.
Scalia was recently quoted as saying that Justice Thomas "doesn't believe in stare decisis (i.e. being bound by prior decisions), period." Clarifying his remark, Scalia added that "if a constitutional line of authority is wrong, he (Justice Thomas) would say let's get it right. I wouldn't do that."
My response to Justice Scalia is...why not? If Justice Brennan said one thing in 1980 and you believe that the actual Constitution says something else...why would you apply Justice Brennan's opinion?
We need more Clarence Thomas' on this Court...he has expressed a willingness to revisit the many illegitimate lines of law imposed upon us by the Court...from the Commerce Clause to Establishment Clause cases (Thomas correctly notes that it applies only to Congress not the states...to which his enemies respond that, "while he may be "historically correct", we can't go back and undo the (Supreme Court-created) law on this...its now settled") to Substantive Due Process
Justice Thomas is the leftists's worst nightmare...a judge that will actually undo all of their illegitimate rewriting of the Constitution
The Constitution allows the Congress to regulate interstate commerce (but NOT intrastate commerce), so Congress says, "Fine, in order to regulate interstate commerce, we must regulate intrastate commerce."
.....and the SC says, "OK....fine then."
Agreed.. Scalia is a past master at that.
He claims?
Can you cite to a "past" instance of Justice Scalia doing what you claim he is "master" at?
I would love to here what Sowell thinks about this specific difference between the two.
Or, alternately, you could conclude that the job of a judge can be extremely difficult.
You can, but I sure don't see it that way.
Their clerks do all of the grunt work, -- and probably most of the writing. [and a bit of the reasoning too, I suspect, seeing how bad some of the 'logic' reads.]
English law was common law. For those unfamiliar with the term, common law is court-made law. Most American law is common law....it develops through court decisions, each case building on the last by incorporating rules set out in prior decisions. It is in this context that stare decisis developed and becomes necessary to the development of the law. It allows the law to develop and gives it predictability...so people know what the law is
By contrast, continental Europe has more codified law...law that is set out in codes rather than developed through court decisions.
The US Constitution is like a legal code. You don't need stare decisis in most areas of Constitutional law. Where the ruling from a prior court decision conflicts with the written Constitution, the written Constitution must take precedence.
Scalia used to recognize and acknowledge this...now he readily acknowleges that he will follow bad lines of law simply because a prior Court issued it...that I do not understand. Yes, Scalia is willing to follow stare decisis even when doing so violates his own conservative principles (which is right)...apparently also when doing so violates the terms of the Constitution (which is most definitely not right)
I's worken boss... How bout you?
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.