The Ninth Circuit’s Revenge

NRO ^ | June 09, 2005 | Randy Barnett

[neverdem]

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June 09, 2005,

7:41 a.m.

The Ninth Circuit’s Revenge

In Gonzales v. Raich, the circuit court won big.

By Randy Barnett

The Ninth Circuit finally got its revenge on the Supreme Court justices who seemed to delight in reversing it. In Gonzales v. Raich, it gave the conservatives a choice: Uphold the Ninth Circuit's ruling favoring individuals engaged in the wholly intrastate non-economic activity of growing and consuming cannabis for medical purposes as recommended by a doctor and permitted by state law, or retreat from the landmark Commerce Clause decisions of U.S. v. Lopez (1995) and U.S. v. Morrison (2000). Either way the Ninth Circuit wins. But with Justices Kennedy and Scalia on the liberal side of the Court, the Ninth Circuit won big. So did Judge Stephen Reinhardt, who first implemented this strategy in the child-porn case of U.S. v. McCoy.

Of course, my clients and I were betting the other way. Either all five federalist justices would hold to their principles, or a few of the more liberal justices might decide to follow the "precedents" of Lopez and Morrison and make an exception to their principled stance in favor of federal power out of concern for the tens of thousands of suffering patents who acted through the democratic processes of their states to enact compassionate use acts. It was not to be.

I credit the four Lopez and Morrison dissenters with putting their vision of the Constitution above precedent. I agree that unconstitutional precedent should not be followed (see my take on precedent here). I credit even more the three dissenters.

Justice O'Connor gets lots of grief from conservatives, but here she clearly put her longstanding judicial commitment to federalism above her expressed distaste for medical-cannabis laws. Her dissenting opinion adopted our analysis in its entirety. She clearly got it — as did the two justices who joined her opinion — which means the entire Court got it. In the end, the six in the majority completely understood our theory of the case, and simply disagreed.

I have sometimes heard even some of Chief Justice Rehnquist's greatest supporters question his commitment to principle, and few thought he would rule for us. Yet he did, and at a cost. Had he joined the majority, he could have written the opinion himself to limit the damage to his New Federalist legacy. Yet he joined the dissent anyway.

It comes as no surprise that I admire Justice Thomas's opinion. His opinion now establishes that there are not two principled originalist justices on the Court today, but one. To me, this means that when it comes to enumerated federal powers, there is only one justice who is clearly willing to put the mandate of the Constitution above his or her own views of either policy or what would make a better constitution than the one enacted.

I note something overlooked by all coverage of the case I have seen. Justices Rehnquist and Thomas both declined to join the paragraph in Justice O'Connor's dissent in which she expresses her disagreement with the state medical-cannabis laws. This does not necessarily mean that these two justices agree with the Compassionate Use Act, but it does mean that they explicitly refused to go on record against it. Contrast this with Justice Thomas's condemnation of the Texas anti-sodomy law in his dissent in Lawrence v. Texas.

Which brings me to the two justices in the federalist majority of Lopez and Morrison who have now joined the four dissenters in those two cases: Justices Kennedy and Scalia. Many reporters have asked me whether I can explain their votes. Veteran Supreme Court reporter Lyle Dennison has suggested that Justice Kennedy has a zero-toelrance approach to drugs. Justice Kennedy's deportment during oral argument supports that theory, but we will never know because he joined the majority opinion without comment. In Lopez and Morrison, Justice Kennedy offered concurring opinions that rested his decisions on a respect for the traditional functions of states, rather than on original meaning. Much of our brief was devoted to this issue, which, if anything, was stronger here — where states have affirmatively acted to protect the health and safety of their citizens — than it was in either Lopez or Morrison. How he reconciles his expressed support for the traditional law-enforcement role of the states with his joining what can only be described as the opposite view expressed by Justice Stevens only he can say. But he chose not to.

What about Justice Scalia? He did not join the majority opinion, resting his decision on the Necessary and Proper Clause, which he had previously described in Printz v. U.S. as "the last, best hope of those who defend ultra vires congressional action." In his concurring opinion in Raich, Justice Scalia appears to put his commitment to majoritarianism over his commitment to originalism. Yet this decision does run counter to his oft-expressed insistence that the people should act to protect their un-enumerated rights in state political processes rather than in federal court. Here this is exactly what the citizens of California and ten other states have done, but Justice Scalia's new stance on the Necessary and Proper Clause leaves citizens little, if any, room to protect their liberty from federal encroachment in the future. It has always seemed significant that he never joined Justice Thomas's originalist concurrences in Lopez and Morrison. Nor does he explain why Justice Thomas's originalist dissent in Raich is historically inaccurate, which would be incumbent on him as an "originalist justice" to do. Instead, Justice Scalia now joins in expanding the reach of the Commerce Clause power beyond even that which the Court had endorsed in Wickard v.

Filburn. In oral argument he admitted, "I always used to laugh at Wickard." Now it's Judge Stephen Reinhardt and the Ninth Circuit's turn to laugh.

Gonzales v. Raich has had the salutary effect of showing that federalism is not just for conservatives. Many liberals are distressed about Justice Stevens's opinion. With a Republican Congress they have come to see the virtue of state experimentation. The case also succeeded in raising the national visibility of the medical-cannabis cause. Maybe now Congress will act where it has refused to act in the past.

But Gonzales v. Raich has placed the future of the New Federalism in doubt, which makes future appointments to the Supreme Court all the more important. Will the president name someone who, like Justice Thomas, is truly committed to federalism? Or will his nominee be a fair-weather federalist, as Justice Scalia has turned out to be when the chips were down?

— Randy Barnett is the Austin B. Fletcher Professor of Law at Boston University and author of Restoring the Lost Constitution: The Presumption of Liberty. He argued Gonzales v. Raich in the Supreme Court last November.

	http://www.nationalreview.com/comment/barnett200506090741.asp

[Enterprise]

bump

[mc6809e]

I think part of the ruling was "payback": if you support a broad interpretation of the commerce clause, then you have to support it even when you don't like the result.

Of course, most of us would prefer a restricted version of the clause, but then they'd have to shut down 90% of the federal government, wouldn't they?

[The Spirit Of Allegiance]

This is what happens when an American state is overrun by lawmakers without morals -- who create and use immoral state laws, then under States Rights doctrine hold them like a gun to the U.S. Constitution's head. Truly a horrid quandary for SCOTUS--and America.

"Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other." -- John Adams

"The wicked in his pride doth persecute the poor: let them be taken in the devices that they have imagined." -- Psalm 10:2
http://www.biblegateway.com/passage/?book_id=23&chapter=10&verse=2&version=9&context=verse

[onyx]

The pot stores closed in my area right after the announcement of this ruling.

[gr8eman]

Where do you live...New Amsterdam?

[TheOtherOne]

He argued Gonzales v. Raich in the Supreme Court last November.

So he has some bona fides to talk about this case. Actually, a very interesting analysis.

[The Spirit Of Allegiance]

"but then they'd have to shut down 90% of the federal government, wouldn't they?"


YOU SAY THAT LIKE IT'S A BAD THING.....

[Skywalk]

What's immoral about marijuana use for the sick?

(when alcohol is legal)

[The Spirit Of Allegiance]

"What's immoral about marijuana use for the sick?"

There are alternative painkillers.

In the bigger picture, I see an agenda here: an anti-American strategy to shred the U.S. Constitution via the 10th Amendment. This would be only one salvo in the bigger war.


I don't drink, toke or chew and don't go out with girls that do....

[sourcery]

This is what happens when an American state is overrun by lawmakers without morals

Well, it's certainly true that the lawmakers of California, just like those of other States (and those in Congress) are largely immoral. However, there is absolutely nothing immoral about the Compassionate Use Act. In fact, the only immorality lies with those who would prevent the sick from exercising their liberty right to heal themselves (provided they do not infringe on the rights of others in the process.) And the sin is a cardinal one, for it amounts to murder in some cases.

[sourcery]

There are alternative painkillers.

And the alternative for Peter McWilliams would have been what, exactly?

[mc6809e]

In the bigger picture, I see an agenda here: an anti-American strategy to shred the U.S. Constitution via the 10th Amendment. This would be only one salvo in the bigger war.

Well, the 10th amendment IS part of the constitution.

Besides, being able to smoke pot and tell everyone else to piss off IS hardly anti-american.

It's just like being able to worship and tell the catholic church to piss off if they don't agree.

Live and let live is really what America is about. And with freedom, but still responsible for yourself.

[steve-b]

strategy to shred the U.S. Constitution via the 10th Amendment What an idiotic statement. The Tenth Amendment is part of the Constitution, and the Constitution would never have been ratified without a clear committment to add it (and the rest of the Bill of Rights).

[The Spirit Of Allegiance]

What an idiotic statement.

By your reliance on effective, persuasive use of facts, you convince me fully of both the merit of your opinion and your good manners. Clearly you are a learned gentleman of wisdom and couth, a defender of the helpless and gentle with those you deem ill-informed and whose sad plight you seek to remedy. It should be immediately clear to all that you, by your above public remark of respectful repartee and rebuttal to my own lowly opinion, that surely you are of exceptional stock, noble and a leader and champion of millions. A living example thou art, Sir, of The Autobiography of Benjamin Franklin and How To Win Friends and Influence People; your prodigy for beneficial and educational cameraderie with the downtrodden and ignorant is breathtaking. Vividly more knowledgeable than mine, as the heavens are to the earth, is thy knowledge of the United States Constitution and the agenda of the Current Communist Goals and thy opinion unto mine.

NOT.

I'm sure you no more desire to shred me than the 9th Circuit Court desires to shred the Constitution, as later amended.

/s

I invite you to take a long hard look at your tagline, then your mirror.

[Tumbleweed_Connection]

I don't have the AP at hand but as I remember this decision was based on interstate commerce.

[The Spirit Of Allegiance]

I caught the IC aspect. The States Rights aspect is relevant as well.

[Oberon]

There are alternative painkillers.

Well, if marijuana use for the sick is immoral, why is the use of alternative painkillers permissible?

Those other painkillers are also subject to abuse, and frequently taken recreationally.

[Tumbleweed_Connection]

CSM -

...Justice Stevens and the other majority justices saw the case as substantially similar to a landmark 1942 commerce-clause decision called Wickard v. Filburn, in which the high court upheld federal regulation of wheat production on a family farm even when the wheat was grown for home consumption.

"In both cases, the regulation is squarely within Congress' commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity," Stevens writes.

"In assessing the scope of Congress' Commerce Clause authority, the court need not determine whether respondents' activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a 'rational basis' exists for so concluding," he says..."

This is a states rights case.

[houeto]

who create and use immoral state laws

You are referring to?