Thomas v. Scalia in GONZALES v. RAICH et al.

FindLaw ^ | 6/6/05

[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.

________________________________________________________

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.

[The Ghost of FReepers Past]

But one state cannot defeat the drug law enforcement efforts of the rest of the country. Work to overturn the federal law. In the meantime, I think freedom will survive even without stoned California citizens. No one's speech, press or voting rights have been taken away. PERSUADE! That's how you win.

[P_A_I]

"even when they violate his own conservative principles."


Worth repeating.

[P_A_I]

He doesn't?

[The Ghost of FReepers Past]

Well, I'm not working on it because it really means nothing to me one way or the other. Sorry. Good luck though.

[1rudeboy]

Is that what is confusing you? You expect judges to vote according to their political views? If so, how do you explain Scalia's vote in this case? Maybe it was "political?"

[1rudeboy]

You don't actually know?

[Irontank]

The conservative aversion to activism has its roots in the reliability of settled law...Order if you will. And Order is partly due to the citizens ability to rely upon what the law will be in the future; the freedom from arbitrary change

In some areas of the Constitution, I agree that stare decisis is necessary. However, unlike common law, where the practice of following precedent is rooted...there is another source of predictability in Constitutional law...the Constitution itself. In terms of what is meant by the phrase, "commerce between the several states"...Scalia should go back to his method of originalism rather than just accepting the bogus principles coming from the Court over the last 70 years...particularly because his method of originalism would definitively reject the principles he now accepts under the misplaced guidance of stare decisis

Scalia has stated that, even where he believes prior Courts have gotten it wrong...he will follow the prior rulings...Thomas, to his credit, does not. I think Thomas gets it right here.

[DuncanWaring]

I'm still waiting for the explanation of why the War on Alcohol required a constitutional amendment, but the War on Other Drugs doesn't.

[P_A_I]

Instead of saying what the law says I will make it say what I want.
3 handy old one


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Agreed.. Scalia is a past master at that.
12 P_A_I


______________________________________


1rudeboy wrote: Can you cite to a "past" instance of Justice Scalia doing what you claim he is "master" at?

---

In the 1991 nude dancing case, Barnes v. Glen Theatre, Inc., the USSC held that "Public nudity was considered an act malum in se."

As Justice Antonin Scalia elaborated:

"Our society prohibits, and all human societies have prohibited, certain activities not because they harm others but because they are considered, in the traditional phrase, 'contra bonos mores,' i.e., immoral.
In American society, such prohibitions have included, for example, sadomasochism, cockfighting, bestiality, suicide, drug use, prostitution, and sodomy."


Which can be paraphrased as: -- 'Our society prohibits, and all human societies have prohibited, certain activities not because they harm others but because we want to control the behaviors of our peers, regardless of Constitutional law.'

[Publius Valerius]

Oh, I don't know...Scalia has a point in that you can't just--all of a sudden--upset the constitutional law apple cart and then expect to carry on as if nothing happened. I think at some point you just have to accept an interpretation of the constitution, even if "wrong" as so much a part of society that it's not changable absent a constitutional amendment.

For instance, the Fourteenth Amendment was only intended to apply to a select group of civil (as opposed to political) rights for blacks; do you really want to overturn the last 60 or 70 years of case law? Or is it a good idea for the Supreme Court to wake up tomorrow and then declare that the administrative state is unconstitutional and to disband the FAA, FCC, EPA, etc.? While I might love for these agencies to go away, don't you think, by this point, it is beyond the means of the Court to do anything about them?

I think when talking about judicial activism, I think you have to admit that some things are just a fixed part of our society at this point, and the best way to get rid of such things is by the will of the voters, not the judiciary.

[P_A_I]

Justice Thomas is the leftists's worst nightmare...a judge that will actually undo all of their illegitimate rewriting of the Constitution.

Extremely well said. Thanks.

[1rudeboy]

So, using your example, there is a Constitutional right to "sadomasochism, cockfighting, bestiality, suicide, drug use, prostitution, and sodomy?" Where do you see it?

[ALPAPilot]

If the citizens knew in 1789 that the Federal Government could imprison you for growing hemp under the provisions of the Commerce Clause, they would have never, ever allowed its ratification. The farmers of NY were dubious enough of it to begin with; Alexander Hamilton and the rest of the business classes would have never prevailed in the NY ratification convention and the whole thing would have gone down in flames.

[1rudeboy]

Cannabis indica is not "hemp," no matter how much of it you smoke.

[P_A_I]

Publius Valerius wrote:

When it comes to drugs, a lot of conservatives sell out; witness the folks in the other thread who are cheering the decision despite the fact that it totally stomps all over states' rights.
I guess Scalia falls into this category; when it comes to guns ---

It would be interesting to see a Scalia opinion on CA's "states right" to ban assault weapons.
-- Two bits he would cheer them on.

[r9etb]

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.

Oh, pshaw.

When you get right down to it, the difference between Thomas and Scalia boils down to a couple of things.

First, is "honest, officer, I wasn't gonna sell it to anybody," an acceptable excuse in a criminal case? There's a fuzzy line between "growing for personal use only," and "growing for the personal use of others."

Second, it's a matter of the written law as it currently stands.

Scalia's ruling takes into account the fact that it is currently a federal crime (which has passed USSC muster) to possess marijuana, and on those grounds he is not out of line in his ruling -- he's interpreting the law as it currently stands.

Thomas is asking a broader question: should current federal laws on marijuana be repealed or modified? It's a legitimate question, but by going against precedent we must note that it is Thomas, not Scalia, who has taken the "activist judge" stance in this case.

[bvw]

More interesting for what they left out. In his fulsome dissent Justice Thomas goes into a lengthly exposition on what constituted "commerce" to the founders -- that is what the "original intent" was.

Justice Scalia has spoken publically and repeated as to what original intent is, and how to him -- it is the sine que non of legal reasoning at the level of the Supreme Court.

Yet here, "Originalist" Scalia and "So-Modern" FindLaw both agree to focus on the Texas Superhighway truck lanes of the the non-orginalist expansionary "necessary and proper clause" and Scalia ignores what the founders held Commerce to mean -- a far more limited definition -- so as to make love to Miss Stare Decisis.

[AntiGuv]

The question is whether there is a Constitutional authority to regulate "sadomasochism, cockfighting, bestiality, suicide, drug use, prostitution, and sodomy."

Your question promulgates an authoritarian framework. As reformulated above, the question advances a libertarian framework.

[Publius Valerius]

That's not an easy question.

On one hand, I don't think the 14th Amemdment was intended to "incorporate" the Bill of Rights against the states, and I think a state, absent its own constitutional provision to the contrary, should be able to enact any laws on the regulation of firearms it deems fit. If citizens of that state don't like it, there are 49 others and plenty are certainly "gun friendly." Personally, you couldn't get me near California to even visit, let alone live, and so what California does is the business of it and its citizens. Thus, in my mind, the second amendment, in no uncertain terms, prohibits ANY legislation on the FEDERAL level restricting firearm ownership--that includes laws providing for background checks, taxes, felony convictions, etc. I think a 14 year old girl should be able to walk into Home Depot and buy a chain fed machine gun over the counter with no federal laws requiring her to show identification, pay any taxes, submit to a background check, submit to a waiting period or otherwise fill out any registration or paperwork.

On the other hand, in light of what I wrote in my last post on this thread, incorporation has been around for sometime, and I think we, at this point, have to accept it as the law of the land. But, partial incorporation--incorporating SOME of the guarantees in the Bill of Rights--is totally bogus in my mind. Either the Fourteenth Amendment was intended to secure these rights or it wasn't--can't have it both ways.

But states passing laws on guns is a tough question. Not easy at all.

[inquest]

"Judicial activism" doesn't translate to "going against precedent".