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

FindLaw ^ | 6/6/05

[AntiGuv]

PS. And to answer your second question, nowhere in the Constitution do I find any federal authority to regulate "sadomasochism, cockfighting, bestiality, suicide, drug use, prostitution, or sodomy" except in the sphere of interstate commercial transactions.

[1rudeboy]

It's simply an idle thought on my part. I'm still wondering what Justice Scalia thinks of those that label him "conservative," and then chastise him for not being "conservative" enough.

[AmishDude]

The Bush administration The elected representatives of the people of the United States said "take your votes and shove 'em".

[P_A_I]

"even when they violate his own conservative principles."

Worth repeating.

Is that what is confusing you? You expect judges to vote according to their political views?

You confuse conservative [constitutional] principles with political views? I'm not the one confused here rudeeboy, you are.

If so, how do you explain Scalia's vote in this case? Maybe it was "political?"

Indeed, it might be.. Seems, imo, -- to be lobbying for chief justice.

[1rudeboy]

I refer you to my reply #42.

[Irontank]

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

Exactly right...in my opinion, judicial activism is wilfully ignoring the written Constitution...whether you are following a prior decision that did so...or whether you are doing so for the first time on a particular issue

[r9etb]

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

No, but it its general expression does tend to have the form of "deciding that existing law is wrong and should be overturned."

In that sense, Thomas is indeed leaning toward the "activist" label, whereas Scalia, in his reference to the law as written, is more in line with the "interpret the law, don't make it" position.

We can certainly debate whether or not Congress ought to change marijuana laws. I'd just as soon not let the Supremes do it.

[AntiGuv]

Well, I don't really have a dog in your fight regarding Scalia's judicial philosophy, but I did have a dispute about your framing of the rights question. I have a serious problem with people who ask: "Where in the Constitution is there a right to .. etc, etc, etc?" That should never be the first question. The first question should be: "Where does the Constitution grant government the authority to regulate .. etc, etc, etc?"

Only once the first question has been answered in the affirmative, only then should one ask: "How does the government exercise this authority without violating any Constitutional rights?" If the first question has been answered in the negative, there is no way for the government to exercise authority it does not have without violating Constitutional rights (the 9th & 10th amendments).

[P_A_I]

DuncanWaring wrote:

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.

It's beyond rational explanation from either prohibitionist faction, - the socialists - or the moralists.

[inquest]

In that sense, Thomas is indeed leaning toward the "activist" label, whereas Scalia, in his reference to the law as written, is more in line with the "interpret the law, don't make it" position.

I don't think you understand. It's Thomas who wants to go back to the written law - the Constitution itself, which does not give Congress power over intrastate transactions of any kind, whether they involve marijuana or matchbooks.

[PISANO]

Give me 9 like Thomas or 9 like Scalia or any combination thereof. I will not criticize either for there differing positions in this matter.

[P_A_I]

All of those 'sins' can be reasonably regulated by state or local governments, using constitutional due process.

[coloradan]

If Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare,

Yep.

they may appoint teachers in every State, county and parish and pay them out of their public treasury;

Yep.

they may take into their own hands the education of children,

Yep.

establishing in like manner schools throughout the Union;

Yep.

they may assume the provision of the poor;

Yep.

they may undertake the regulation of all roads other than post-roads;

Yep.

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.

Yep.

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.

Yep.

[wiley]

Stare decisis is wrong, pure and simple. To accept it is to accept the legislative 'power' of the courts. I dare not say 'authority' since the courts do not possess such an authority under the consitution.

As to 'order', that is achieved over a long period of time of consistent rulings one way or the other. That is how legal precedent should be established by the courts in a well ordered society.

I'm certain that Jefferson and Madison who considered the court to be the weakest of the branches by design would consider the exercise of stare decisis as an an egregious violation of the court's authority.

As for Thomas, he is the only true strict constructionist on the court today though Rehnquist seems close. Any one who holds to stare decisis is by definition not a strict constructionist, since it gives the courts absolute legislative power.

[mugs99]

But one state cannot defeat the drug law enforcement efforts of the rest of the country

ROFL!
How is a sick person growing for her own medical use defeating drug law enforcement in the rest of the country?

PERSUADE! That's how you win

Like our founders PERSUADED the king to grant us freedom?
...

[P_A_I]

Questioning the constitutionality of existing law shows "that it is Thomas, not Scalia, who has taken the "activist judge" stance in this case"?

Sorry, but you've got it backwards, imho.

[coloradan]

Is it an "activist" position to decide some law violates the Constitution and should be repealed on that basis?

For example, would a "true" conservative justice on SCOTUS uphold a conviction for violating a gun control law, because the law was on the books, and the law was violated on its face, or overturn conviction because the law violates the Second Amendment on it's face?

What is the non-activist thing to do, when interpreting the law as written conflicts with recognizing the Constitution as the supreme law of the land?

[publiusF27]

James Madison, from Federalist 45:

"The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security.

... If the new Constitution be examined with accuracy and candor, it will be found that the change which it proposes consists much less in the addition of NEW POWERS to the Union, than in the invigoration of its ORIGINAL POWERS. The regulation of commerce, it is true, is a new power; but that seems to be an addition which few oppose, and from which no apprehensions are entertained."

So "few and defined" has come to mean "just about anything."

And homegrown cannabis plants (or machine guns) are not included among "all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State."

[mugs99]

The Bush administration The elected representatives of the people of the United States said "take your votes and shove 'em".

ROFL!
Yeah right. I'm sure people will remember it that way during the next election, not to mention appointment of judges.
...

[Straight Vermonter]

Wow, that is an awesome quote! How prescient he was.