Cannabis Indica Yum
Posted on 06/06/2005 2:09:50 PM PDT by P_A_I
ALBERTO R. GONZALES, ATTORNEY GENERAL, et al., PETITIONERS v. ANGEL McCLARY RAICH et al.
Justice Scalia, concurring in the judgment.
I agree with the Court's holding that the Controlled Substances Act (CSA) may validly be applied to respondents' cultivation, distribution, and possession of marijuana for personal, medicinal use. I write separately because my understanding of the doctrinal foundation on which that holding rests is, if not inconsistent with that of the Court, at least more nuanced.
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. The power to regulate interstate commerce "extends not only to those regulations which aid, foster and protect the commerce, but embraces those which prohibit it." To effectuate its objective, Congress has prohibited almost all intrastate activities related to Schedule I substances--both economic activities (manufacture, distribution, possession with the intent to distribute) and noneconomic activities. That simple possession is a noneconomic activity is immaterial to whether it can be prohibited as a necessary part of a larger regulation. Rather, Congress's authority to enact all of these prohibitions of intrastate controlled-substance activities depends only upon whether they are appropriate means of achieving the legitimate end of eradicating Schedule I substances from interstate commerce.
By this measure, I think the regulation must be sustained.
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ALBERTO R. GONZALES, ATTORNEY GENERAL, et al., PETITIONERS v. ANGEL McCLARY RAICH et al.
. Justice Thomas dissenting:
--- More difficult, however, is whether the CSA is a valid exercise of Congress' power to enact laws that are "necessary and proper for carrying into Execution" its power to regulate interstate commerce.
The Necessary and Proper Clause is not a warrant to Congress to enact any law that bears some conceivable connection to the exercise of an enumerated power. Nor is it, however, a command to Congress to enact only laws that are absolutely indispensable to the exercise of an enumerated power.
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.
Congress has exercised its power over interstate commerce to criminalize trafficking in marijuana across state lines. The Government contends that banning Monson and Raich's intrastate drug activity is "necessary and proper for carrying into Execution" its regulation of interstate drug trafficking. However, in order to be "necessary," the intrastate ban must be more than "a reasonable means [of] effectuat[ing] the regulation of interstate commerce." It must be "plainly adapted" to regulating interstate marijuana trafficking--in other words, there must be an "obvious, simple, and direct relation" between the intrastate ban and the regulation of interstate commerce.
On its face, a ban on the intrastate cultivation, possession and distribution of marijuana may be plainly adapted to stopping the interstate flow of marijuana. Unregulated local growers and users could swell both the supply and the demand sides of the interstate marijuana market, making the market more difficult to regulate. But respondents do not challenge the CSA on its face. Instead, they challenge it as applied to their conduct. The question is thus whether the intrastate ban is "necessary and proper" as applied to medical marijuana users like respondents.
"In illustration of their argument, gentlemen have supposed a strong case; a prohibition of the future cultivation of corn, in the United States. It would not be admitted, I presume, that an act, so extravagant, would be constitutional, though not perpetual, but confined to a single season. And why? Because it would be, most manifestly, without the limits of the federal jurisdiction, and relative to an object, or concern, not committed to its management. If an embargo, or suspension of commerce, of any description, be within the powers of congress, the terms and modifications of the measure must also be within their discretion."
"In illustration of their argument, gentlemen have supposed a strong case; a prohibition of the future cultivation of corn, in the United States. It would not be admitted, I presume, that an act, so extravagant, would be constitutional, --- why?
Because it would be, most manifestly, without the limits of the federal jurisdiction, ----
If an embargo, or suspension of commerce, of any description, be within the powers of congress, the terms and modifications of the measure must also be within their discretion."
'Legislators' in the USA see no limits to their powers. When the judicial & executive branches agree, - that there are no limits.. ---
Then in the Course of human Events, it becomes necessary for one People ---
It's funny that you mention Brown to "correct" an evil--I don't think Brown is on very solid legal footing at all. There is no question that the Fourteenth Amendment was not intended to prohibit segregated schools. I think Brown is a classic example of the Court overstepping its authority to make a moral decision. I would point to Brown as judicial activism writ large--decidedly NOT the course I think most of us would like the court to follow.
You say that the country survived Brown, but I don't think judicial review did.
It always has been?
That's certainly not true. There's no question that up until the passage of the 14th Amendment, the Bill of Rights was not applicable to the states--so we have, at least, 75 years or so when this country was founded and the 14th Amendment passage that a state was perfectly free to ban guns (assuming the existence of no state constitutional provision to the contrary); EVEN IF you buy into the concept of incorporation--which I don't concede--it couldn't even come in until 1868.
You're not making any sense on this one, pardner.
Yeah, it's strange.
He says in his opinion that if a wholly intrastate activity affects interstate economic activity, then Congress has a right to regulate it--but that's the reasoning that he blasts in Morrison, when there were ample Congressional findings that abused women are less likely to seek education, get higher paying jobs, go on welfare, etc. He claimed that was too attenuated from economic activity to support Congressional involvement.
I dunno, but it seems to me that the facts in Morrison are more supportive to commerce clause powers than those present here (not that I think either subject warrants Congressional involvement). I think Scalia tries to hide the ball a little bit by claiming to blast the majority in his opinion, but it seems to me that he signs right on.
I would point to Brown as judicial activism writ large -
More importantly, the Brown situation was a failure of the Executive, both fed & state.
The governor should have closed the State schools, [pending further judicial 'rulings'] and the president should have backed the governor on the closing, thereby calling the judicial bluff.
-- This would have broken the back of our socialistic fed/state supported school system.
But states passing laws on [banning] guns is a tough question. Not easy at all.
Sure it is.
It's illegal.
Always has been.
Robert_Paulson2
It always has been?
That's certainly not true. There's no question that up until the passage of the 14th Amendment, the Bill of Rights was not applicable to the states --
Not true. You ignore the clear words of Article VI, that "notwithstanding" their own constitutions or laws, States must support the US Constitution [and its Amendments] as the supreme Law of the Land.
so we have, at least, 75 years or so when this country was founded and the 14th Amendment passage, that a state was perfectly free to ban guns (assuming the existence of no state constitutional provision to the contrary);
You assume that States were admitted to the union with constitutions that could ignore the Bill of Rights? - Not so, as evidenced by Utah. -
-- California's constitution, which failed to include a RKBA's provision was simply ignored. -- No such provision was necessary, as per Article VI.
EVEN IF you buy into the concept of incorporation--which I don't concede--it couldn't even come in until 1868. You're not making any sense on this one, pardner.
Don't be swayed by the 'States Rightists' communitarian agitprop, come to your own senses..
'Incorporation' is a legal fiction, invented by the courts to give then a bit more power.
I completely agree. My question was poorly framed.
The Constitution is particular when it wishes to restrict the power of the states: No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility....No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports...No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace...
Sorry, I don't buy that it was simply sloppy draftsmanship that the Constitution was quite particular when limiting the powers of the state in one area and then not in another.
And besides, nothing in Article VI contradicts what I've said. If the Bill of Rights doesn't apply to the states, and up until 1868, nothing indicated that it did, a state could freely enact laws that infringed on the ownership of firearms without being in conflict with the US Constitution. No problem.
--- nothing in Article VI contradicts what I've said. If the Bill of Rights doesn't apply to the states, and up until 1868, nothing indicated that it did, a state could freely enact laws that infringed on the ownership of firearms without being in conflict with the US Constitution. No problem.
Why do you want States to have the power to prohibit guns?
Why is this "no problem"? - It's sure a problem to Californians.
Why do I want states to have the power to prohibit guns? Because they DO! Federalism allows states to make decisions we don't agree with. Not everything is a right. It is EXACTLY this kind of thinking that leads the Supreme Court to make decisions like Brown and Roe and Griswold and the VMI case--because the notion that everything is a right.
If Californians don't like it, they can vote at the ballot box or they can vote with their feet. I own a lot of guns, and you'll get my gun when you pry it from my cold, dead hands--but at the same time, I wouldn't live in California if it was the last place on Earth.
The beauty of Our Federalism is that the federal government can't just stomp all over the states when it feels like. Individual states are free to make laws that not everyone agrees with. If Alabama wants to ban dildoes (it does), great. Fine. There's no "right" to buy one. If Virginia wants to ban unmarried co-habitation (it did until this year), fine. If Vermont wants to allow same-sex marriages, also fine. We've got 50 great states (well, OK, 35 great states and 15 ok ones) and I'm sure that you can find one that you like.
Once you start allowing the federal government to stomp all over the states, there is no principled place to draw the line. You seemed to imply earlier that you thought Brown was wrongly decided--why? If you think the federal government can command the states, why was Brown wrong?
So let me get this straight. This case was to determine if the law is Constitutional, and Scalia correctly determined that because the law exists (based on the New Deal interpretation of the Commerce clause) it is therefore Constitutional?
Scalia says that he's interpreting the law as written. Do you want him to do otherwise?
possible false disjunct fallacy, and/or fallacy of equivocation. define "activist".
--- nothing in Article VI contradicts what I've said. If the Bill of Rights doesn't apply to the states, and up until 1868, nothing indicated that it did, a state could freely enact laws that infringed on the ownership of firearms without being in conflict with the US Constitution. No problem.
Why do you want States to have the power to prohibit guns?
Why is this "no problem"? - It's sure a problem to Californians.
Why do I want states to have the power to prohibit guns? Because they DO! Federalism allows states to make decisions we don't agree with. Not everything is a right.
You're getting so emotional that you claim that "not everything", [like owning guns] "is a right". I suggest you rethink that one.
It is EXACTLY this kind of thinking that leads the Supreme Court to make decisions like Brown and Roe and Griswold and the VMI case--because the notion that everything is a right.
States can prohibit guns, drugs & call early term abortion murder because they are not rights. I see.
If Californians don't like it, they can vote at the ballot box or they can vote with their feet. I own a lot of guns, and you'll get my gun when you pry it from my cold, dead hands
Unless your State 'repeals' your right to bear arms; whereupon you will bow to the majority will and leave? Where will you go if all States prohibit guns?
--but at the same time, I wouldn't live in California if it was the last place on Earth.
Emotional plea. Tell someone who cares.
The beauty of Our Federalism is that the federal government can't just stomp all over the states when it feels like.
You are preaching to the choir, as my post #107 to you on 'Brown' made clear.
Individual states are free to make laws that not everyone agrees with. If Alabama wants to ban dildoes (it does), great. Fine. There's no "right" to buy one. If Virginia wants to ban unmarried co-habitation (it did until this year), fine. If Vermont wants to allow same-sex marriages, also fine.
Yep, 'reasonable regulations' can be written, as long as they do not infringe on our individual Constitutional rights. Try to understand the Constitutional principle.
We've got 50 great states (well, OK, 35 great states and 15 ok ones) and I'm sure that you can find one that you like. Once you start allowing the federal government to stomp all over the states, there is no principled place to draw the line.
Exactly. Fed or State, the line on guns must be drawn. -- I came to CA 45 years ago, well before gun bans. Now you say I should move because my peers have become prohibitionists? Bet me.
You seemed to imply earlier that you thought Brown was wrongly decided--why? If you think the federal government can command the states, why was Brown wrong?
Because both fed & state governments are required to support the Constitution.
Neither did so in 'Brown', as I wrote in #107.
-- Really, you do need to learn to understand what you read, particularly in regard to our Constitution.
setting aside for a moment your definition of "activist", i will say that Thomas would be correct to overturn roe.
the judge who would uphold roe would be the activist based on my understanding of the usage of the term "activist".
roe was an "activist" decision to begin with. scalia says he believes in the "original meaning" of the constitution, and he has apparently upheld the original meaning over and above stare decisis many times.
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