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.
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.
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.
I refer you to my reply #42.
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
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.
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).
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.
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.
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.
All of those 'sins' can be reasonably regulated by state or local governments, using constitutional due process.
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.
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.
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?
Wow, that is an awesome quote! How prescient he was.
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