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.
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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.
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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.
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.
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
He claims?
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.
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.
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.
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.
There are other conclusions. For example, Scalia is a pygmy compared to Thomas.
I judge people by how many times they say something stupid. I don't think I've ever heard anything from Thomas, or seen any opinion written over his signature that strikes me as anything but reasoned. (And considering the public inquisition he was subjected to, this is even more remarkable.) But Scalia ... At the only USSC argument I have attended at one point when Scalia made a point (Yes, it was a question.) I wanted to stand up and shout, "Et tu, Brute." (But I knew all the security there would have crushed a grape.)
ML/NJ
If Scalia was a conservative and applied conservative principles rather than read and interpret the law and the constitution as he sees fit, he would be an activist judge.
A judge can be simultaneously damned if you do and damned if you don't.
Gobbledygook.
Thomas agrees with Scalia that the commerce clause may be properly invoked by the federal government to control or prohibit marijuana in derogation of states' power to do otherwise. But he then proceeds to carve out an exception for these two women. Why? Just because.
Great reasoning there, Justice Thomas.
Scalia dissapointed me, O'Connor surprised me, The Chief Justice and Justice Thomas just did what they were expected to do.
when i heard the decision was 6 to 3, i immediately thought "of course, the 3 conservatives--scalia, thomas, rehnquist--verses the 6 leftists".
i was very surprised to see scalia on the majority and O'Connor in the minority.
--John F. Scalia.
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"They [inspection laws] form a portion of that immense mass of legislation, which embraces everything within the territory of a State, not surrendered to the general government: all which can be most advantageously exercised by the States themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c., are component parts of this mass."
"No direct general power over these objects is granted to Congress; and, consequently, they remain subject to State legislation."
That is stare decisis, isn't it?
Scalia: In the CSA, Congress has undertaken to extinguish the interstate market in Schedule I controlled substances, including marijuana.
The Commerce Clause unquestionably permits this.
Am I mistaken, or did he just endorse Wickard, not as stare decisis, but as his own judicial philosophy?