Posted on 06/07/2005 4:38:29 PM PDT by nickcarraway
Yesterday the Supreme Court handed down its decision in Gonzales v. Raich (what was Ashcroft v. Raich, before the U.S. Attorney General was replaced). The case turned on a question of federalism: Does the federal government have the constitutional authority to prosecute individuals under the Controlled Substances Act even for conduct that is legal under a state's medical marijuana laws -- in this case, California's?
The majority answered yes. The Court's liberals have a very expansive view of the Interstate Commerce Clause -- "The Congress shall have Power... To regulate Commerce... among the several States." The majority opinion, written by John Paul Stevens and joined by Ruth Bader Ginsburg, Stephen Breyer, David Souter, and Anthony Kennedy, noted precedents like the absurd 1942 decision Wickard v. Filburn, affirming that the federal government may prohibit a farmer from growing wheat for consumption on his own farm because of the indirect effect on prices in the regulated wheat market. The primary dissent, written by Sandra Day O'Connor and joined in part by William Rehnquist and Clarence Thomas, pointed out that, since the statute in question had an exemption for wheat farms smaller than six acres, even "Wickard did not hold or imply that small-scale production of commodities is always economic, and automatically within Congress' reach."
As Clarence Thomas sharply put it in his own dissenting opinion,
Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything -- and the Federal Government is no longer one of limited and enumerated powers.
That's just fine with some of the justices; Stevens, Ginsburg, Breyer, and Souter simply don't believe in federalism constraints on Congress. Kennedy sometimes opines in favor of federalism constraints, but SCOTUSblog Reporter Lyle Denniston argues that Kennedy's policy preferences precede his judicial theory: "Kennedy, it has been clear for some time, has little tolerance, judicial or otherwise, for those who are users of drugs, or who resist drug control measures."
But what about Antonin Scalia? Scalia wrote a concurring opinion rather than simply joining the majority because, he writes, "my understanding of the doctrinal foundation on which [the Court's] holding rests is, if not inconsistent with that of the Court, at least more nuanced." His opinion is a dizzying array of hairsplitting and intellectual summersaults designed to show why this case is different from two major federalism cases, 1995's United States v. Lopez (overturning the Gun Free School Zones Act of 1990) and 2000's United States v. Morrison (overturning a provision of the Violence Against Women Act of 1994), which O'Connor's dissent argued were irreconcilable with Raich.
Based on his opinion in the search and seizure case Kyllo v. United States, the theory that Scalia is opportunistically hostile to drug users, Kennedy-style, can be discounted. Rather, he has let his impulse toward restraint get the better of his originalism.
Like most court opinions, Scalia's in Raich is premised on the principle of stare decisis, the doctrine of adhering to precedents except in the most extraordinary circumstances. He assumes that Wickard, Lopez, and Morrison are all correct in order to make his argument in Raich for nuanced doctrinal distinctions that allow for all four conclusions. It's a strange tack from a jurist who has ridiculed the Court for its reluctance to overturn some precedents, notably Roe v. Wade. In 1989's Webster v. Reproductive Health Services (which allowed some regulation of abortion), Scalia wrote in his concurring opinion that "Justice O'Connor's assertion [in her concurring opinion] that a 'fundamental rule of judicial restraint' requires us to avoid reconsidering Roe, cannot be taken seriously." If so, then it should be permissible to reconsider other precedents. By leaving it to judges to decide what constitutes a circumstance extraordinary enough to warrant reconsidering a precedent, the prevailing stare decisis standard invites the sort of mischief that Scalia is fond of warning against: it encourages judges to pick and choose the precedents they target according to their own policy preferences.
Whenever liberals want to argue that Clarence Thomas is really scary, they point out that "even Scalia" thinks Thomas is too quick to throw precedents out the window: Scalia was quoted in Ken Foskett's biography of Thomas as saying that Thomas "doesn't believe in stare decisis, period," adding that "if a constitutional line of argument is wrong, he'd say let's get it right. I wouldn't do that."
Why not?
I like Thomas. He's got guts. As to medical marijuana, I really don't care if some little old lady wants to grow a pot plant in her back yard because it helps her arthritis.
The problem is, this is a disingenuous argument made by addicts to open a loophole and get drugs for free. And lord only knows what "rights" we would have to grant to stoned co-workers. Sadly, we once again are denying a benefit to some because of the corruption it creates in the wrong hands. Probably for the greater good that it remains illegal.
Justice Thomas needs to take a refresher course in Con Law. That same issue was decided by SCOTUS for the government and against the Constitution back during the FDR reign.
The problem is that if you actually read the majority opinion in Raich you'll see that Stevens almost openly said that the court may accept a substantive due process argument in the future (and then we would just have another judge-made liberal law so the libs would have their goal - allowing pot and maybe other drugs without touching the Commerce Clause).
This has been reasonably obvious for quite some time now. However, the liberal rationale has always puzzled me. My puzzle could be hugely diminished if I could find constitutional answers to some of the following questions.
Article I, Section 8, Clause 3:
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; How does the constitutionally granted power to regulate interstate commerce extend to prohibiting the citizen the use of what is being regulated?
Why was the 18th amendment required before Congress could write law enforcing the prohibition of alcoholic beverages but no such amendment was required to enforce the prohibition of marijuana?
Why is growing marijuana interstate commerce?
When I was younger, it was acceptable for me to produce 200 gallons of alcohol each year for my own use without paying the alcohol tax?
The answer most sought by me is based on several facts that most liberals and conservatives already agree upon. I guess this is what makes the answer so important to me.
* Agreed Upon Fact 1 – We the people established a government with limited powers.
** Agreed Upon Fact 2 – The limited powers are specific and enumerated.
*** Agreed Upon Fact 3 – Congress has the power to enforce law.
Article I, Section 1. All legislative Powers * this indicates that Congress has all legislative power herein granted **this indicates that Congress’s Powers are listed somewhere in this document shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
Article I, Section 8, Clause 1 –17 is the list **the specific and enumerated powers that Congress can write legislation regarding.
Article I, Section 8, Clause 18:
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, ***this indicates that Congress can enforce legislation regarding the “herein granted” powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
The conclusion I draw from Facts 1 and 2 is that all constitutional power is enumerated. If it does not say Congress can, Congress can’t.
The conclusion I draw from Fact 3 merely supports my previous conclusion.
So the question is; can you describe a power that Congress does not have?
The dwindling spiral we get when we fail to uphold the organization of our government as outlined in the Constitution. We'd be better off as a nation if California dealt with this alone.
I hope you are right, but if Democrats can get away with filibustering minor judicial nominees, why give way on the big ones? Maybe they will let a "moderate" replace Rehnquist, but if one of the six retire, I don't see any nominee being approvable.
Well, duh, of course. It can't regulate abortions because having one (including a partial-birth abortion of course) is a constitutional right (Amdt. XIV - penumbra).
Cause if stare decisis goes out the window, everything is open to relitigation and literally no issue is ever settled. The current behavior of the courts is bad enough, abandoning s.d. invites judicial tyranny.
Prior to R. v. W., the several states through their sovereign power expressed by their legislatures regulated abortion. It was legal in California and New York, banned in Texas and Massachusetts. That's how the constitution works, how it worked for almost 200 years. The New Deal greatly eroded the Constitution, the assault started with Lincoln and the Civil War.
Frankly, I think the 14th amendment comes closer to banning abortion than any penumbra comes to legalizing it. Conservatives never pressed for the Court to ban abortion in states allowing it, although they had (have) a better case.
Hm, wasn't it Scalia that wanted to overrule Miranda v. Arizona? Now if there is ANY judgment that is more settled (in an average person's consciousness) than that then let me know. Now let's see what Scalia says - overruling Roe v. Wade, OK, overruling Miranda v. Arizona, OK, overruling Wickard, BAD! Now where is the logic behind this?
Hank Rearden wrote:
And many/most FReepers can't wait to see Scalia as Chief Justice.
God help us. The Supreme Court sure as hell won't.
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Thomas v. Scalia in GONZALES v. RAICH et al.
Address:http://www.freerepublic.com/focus/f-news/1417693/posts
Posted by P_A_I to Ken H; yall
On News/Activism ^ 06/07/2005 1:00:25 PM PDT · 127 of 156 ^
Scalia's other statement:
"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."
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Scalia is simply reiterating that it is [in his mistaken opinion] constitutionally legitimate to eradicate "Schedule I substances from interstate commerce."
P_A_I
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It sounds like he is simply saying that he believes that I.8.3 delegates such a power in Raich.
But on what basis?
Substantial effects? It does sound like an endorsement of Wickard.
122 Ken
That pretty much says it all.
We need a "strict constructionist" like Clarence Thomas as Chief Justice. I'm not that fond of Scalia.
A certain consistency is the hobgoblin of small minds.
I'm not taking Scalia's side, just pointing out the value of s.d. The SCOTUS has, since about 1950, been a sad joke. Thomas at least is consistent in basing his opinions on the actual Constitution and ignoring wretched precedents.
Agreed to some extent but how then is an unconstitutional ruling overcome? And is ruling ever Unconstitutional? Doesn't judicial activism by definition render precedent obsolete?
The only drugs I do are legal (cafeinne, nicotine - only occationally in cigar form, and alcohol), so I have no personal motive in the legalization argument.
I have come not to care about legality of drugs because the vast majority of addicts - something like 90-95% - are alcohol addicts. They cause almost all the misery and death due to drugs. The Drug War is hugely expensive, ineffective, and corrosive to the freedom of law-abiding people. Any additional drug use will have no impact on your or me, and we will benefit hugely from the money saved and, most of all, from freedom from bad laws and bad cops.
If you want a federal Drug War and you want it to be constitutional, pass and ratify an amendment. Same thing if you want to force all states to legalize abortion.
For a smart man, Scalia sure missed the irony of listing a bunch of state and local crimes as examples.
No, I am not arguing both sides. Bad laws produce bad results, but that does not invalidate the principle of rule of law. Bad precedents assail the Constitution, but that does not necessarily invalidate the principle of judicial precedent. Bad precedents at least allow us to predict with some confidence how courts will rule in the future. No precedents means that we can never know what the law is.
The right way to attack bad precedents (Dred Scott) is to amend the underlying justification (in the case of Dred Scott, amendments XIII, XIV, XV).
See #59.
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