Free Republic
Browse · Search
News/Activism
Topics · Post Article

To: Mr. Silverback
IIRC, the question in the assisted suicide case was whether a federal law prohibiting overdoses of controlled substances would necessarily override a state law allowing their use.

There could not possibly be any such "question" for Scalia, if he believes his own rhetoric in the Lawrence dissent. The plain language of the Constitution (the Tenth Amendment combined with the absence of explicit Constitutional authorization for such a federal law) makes it perfectly clear that the state law is the "controlling legal authority".

10 posted on 07/01/2003 11:52:26 AM PDT by steve-b
[ Post Reply | Private Reply | To 7 | View Replies ]


To: steve-b
Actually, there is a huge difference between the Sodomy case and the medical mj case.

In the sodomy case, there was no federal statute that was inconsistent with the state sodomy laws--that is, no federal statute expressly making sodomy a federal right.

Thus, to invalidate the state law, the SC had to invent a brand new constitutional right of Sodomy, which then superseded the state law under the Supremacy clause. It is the invention of the new right of Sodomy (where none exists in the constitution) that was the essence of this case and about which conservatives complain. Without the wholecloth invention of this new right, the state law stands.

On the other hand, in the medical mj case, federal statutory law makes mj illegal. So the SC did not have to invent any news federal laws or rights. MJ has been illegal under Federal law for years.

Of course, the state statute makes mj legal. Thus, there is a conflict between the existing federal and state laws and, under the supremacy clause, federal law prevails.

So the difference between the two cases arises from whether the SC created an entirely new, extra-constitutional, right. In the sodomy case, it did. In the medical mj case, it did not.

Now, if you were to argue that the medical mj case was wrongly decided because the federal statute there was not within the enumerated powers of the federal government, you would have a much better argument, imho. But the 10th amendment by itself is no basis at all for ignoring the supremacy clause, which is the essence of your argument on the medical mj case.

12 posted on 07/01/2003 1:21:43 PM PDT by ModelBreaker
[ Post Reply | Private Reply | To 10 | View Replies ]

Free Republic
Browse · Search
News/Activism
Topics · Post Article


FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson