Scalia v. Thomas (The noteworthy part of yesterday's ruling was the divergence between them)

The American Prowler ^ | 6/7/2005 | John Tabin

[Tarkin]

So you think that in order to overrule Roe we should pass a Constitutional Amendment? What about Plessy v. Ferguson? Was the SCOTUS supposed to uphold it, if they believed that it was unconstitutional? And what about precedents that overruled previous precedents (like West Coast Hotel v. Parrish f.ex.)? :-)

[P_A_I]

Haru Hara Haruko wrote, quoting Scalia:

"Our society prohibits, and all human societies have prohibited, certain activities not because they harm others but because they are considered, in the traditional phrase, 'contra bonos mores,' i.e., immoral. In American society, such prohibitions have included, for example, sadomasochism, cockfighting, bestiality, suicide, drug use, prostitution, and sodomy."


For a smart man, Scalia sure missed the irony of listing a bunch of state and local crimes as examples.

---

To him there is no 'irony'. -
- He admits it when he claims that:

"all human societies have prohibited certain activities not because they harm others but because they are considered, in the traditional phrase, 'contra bonos mores,' i.e., immoral."

The moral majority rules, - in Scalias philosophy.

[Tarkin]

"Doesn't judicial activism by definition render precedent obsolete?"

You reminded me one of my "favourite" quotes:

"I don't follow precedents, I create them."
William O. Douglas

[Lonesome in Massachussets]

A certain consistency...

Nothing you say is wrong, it's just that without S.D. we're only temporizing. Precedents countermand precedents and courts are even less restrained and rule of law further eroded.

[Archon of the East]

Given the precedents set by interpreting the 14th Amendment, I'm not so sure we want to go down that path :) Is there a legal obligation to follow precedent or is just for consistency?

[Hank Rearden]

Many "conservatives" walk a fine line on the other side of which is totalitarianism.

"The people demand a strong ruler" - that kind of crap.

Our government was constituted to secure the individual liberties of a free, self-governing people. What the hell is so wrong or hard to understand about that? And why are "conservatives" so afraid of the concept?

[Lonesome in Massachussets]

Yes, btw, I think we do need a Constitutional amendment to overturn R.v.W. That should put a stake in its black heart. Remember at the time of R.v.W. abortion was legal in at least two states. The authors of RvW possessed the kind of tinkering busybody mentality that leads to things like the European Constitution.

[MHGinTN]

Good point ... and from Scalia's own mouth the reason why Thomas is THE most superiro Justice on the subpreme court! [BTW, the court got this one wrong, as usual, emphasizing once again why the appointing of high court judges is so crucial. Of what good are state or U.S. legislatures if activist, drag-tail (as in stare decesis even if a previous ruling is wrong) judges are too powerful and denying the very Constitution the supposedly pledged to defend and uphold? [It has been interesting to note the duplicitous rhetoric where 'a doctor patient right' is touted with abortion slaughter but denied with a medicinal application. 'Keep the courts out of our prescription lists' isn't ringing too loudly, is it?]

[LibertarianInExile]

LIM has a point, and you do, too, Tarkin.

LIM's right in that we don't solve the problem if we appoint judges. We just make it temporarily go away.

Tarkin, you're right in that the judges shouldn't be only reversible by constitutional amendment.

I think we should impeach `em, personally. And that'd be easier than any constitutional amendment.

The problem is amendments don't happen. Impeachments don't happen. And as a result, the best chance we have to get things back to where they once belonged is appointments.

Which sucks. Yeah, ideally the problem ought to be fixed permanently by amendment after the appointments by removing the bastardized language that has been so abused and replacing it with more limited language that doesn't allow for misinterpretation. But that can't happen right now. I am inclined toward optimism unless it's estimating the intelligence of the American people in the face of MSM propagandizing. By the time constitutionalists are appointed, if the MSM is neutered, we might have a shot, however.

[UnbelievingScumOnTheOtherSide]

Is it possible, this particular federal law could become one of those nullified by jurors?

When they put 20 years in front of you, it never gets to a pothead-hanging FReeper and anti-States-Rights-DUer jury.

[Archon of the East]

I have often wondered why the Judiciary can't at the request of lets say the legislative and or executive branch be asked to re examine a ruling. This would eliminate the need for way too many amendments to correct rulings that had no Constitutional basis. Also, if a ruling ignores precedent for the sake of activism would it or would it not be in violation of S.D?

[Archon of the East]

......would it or would it not be in violation of S.D to go back to the original ruling?

[UnbelievingScumOnTheOtherSide]

If Bush nominates Thomas it might be because Thomas is a lot younger than Scalia.

That consideration does not apply to promotion within the court. Scalia's inconsistency could be what get him the nod because Bush is inconsistent.

[P_A_I]

Hank wrote:

Many "conservatives" walk a fine line on the other side of which is totalitarianism.

"The people demand a strong ruler" - that kind of crap.
Our government was constituted to secure the individual liberties of a free, self-governing people. What the hell is so wrong or hard to understand about that?

And why are "conservatives" so afraid of the concept?

---

I can't figure it either. -- Here we have a 'conservative' USSC Justice, -- who is afraid of:

"certain activities, not because they harm others but because they are considered, in the traditional phrase, 'contra bonos mores,' i.e., immoral.
In American society, such prohibitions have included, for example, sadomasochism, cockfighting, bestiality, suicide, drug use, prostitution, and sodomy."

--- It baffles me why these people feel the need for such prohibitions over and above the reasonable regulations allowed by our Constitution.

[UnbelievingScumOnTheOtherSide]

Moving the law (back) in the right direction is more important that merely extrapolating it in a wrong direction. One can look beyond the status quo however to the status quo ante.

[JWinNC]

"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."

I think this is the key point. Thomas is right.

[GVnana]

the vast majority of addicts - something like 90-95% - are alcohol addicts.
Probably true.

They cause almost all the misery and death due to drugs.
Don't pull my chain, man. You're talking to a kid from the 1960's California. You ever heard of Meth? You can't rationalize that social scourge by pointing to alcohol abuse.

The Drug War is hugely expensive, ineffective, and corrosive to the freedom of law-abiding people.
The classic Libertarian argument and one that I find almost persuasive.

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.
I'm with you on the "cop society" aspect. But, there was a time-- in the Western states at least--where you could walk over laudanum addicts in the gutter in nearly any town. I'm not sure I want to live in a society like that. We say that social mores against such behavior will win out, but do they? Aren't laws born from such mores?

[planekT]

The biggest waste of time I've ever seen. Some woman wants to grow and smoke pot because she is sick and she thinks it helps her. Why didn't she just keep her mouth shut and do it?

The court decides it's a federally controlled substance for sure, and they even called it a commodity. It must be the only commodity which doesn't have a futures market where it can be traded here. Is it really a commodity? No. You don't have to have it.
I've read posts that say this decision is a threat to States rights and is an unconstitutional power grab. Some posts say this is a correct decision based on the Constitution and that there is no transfer of power.
I think it is a bad decision for this reason. Marijuana may be an illegal substance, but in some states (I believe 9 of them) it has been said that Marijuana should be legal for medicinal purposes because it is medicinal and they want to treat it as such.

There is probably something to that (marijuana's medicinal value). If nothing else, it can pass the alcohol test for destruction with ease (which is btw a legal over the counter substance). Alcohol has medicinal purpose as well, even if it is not widely used for many of those purposes' anymore. I happen to believe that marijuana may very well have medicinal purpose, and though it is not as conclusively well documented or studied as alcohol, it is certainly less harmful then many things you can get with a prescription, and less harmful then things you can get without a prescription (like alcohol, maybe even tobacco).

Cheer this decision if you will. I don't. The Federal Government (in this instance, the U.S. Supreme Court) has decided that you may not grow your own medicine (as defined by your state) for fear of it becoming a whoopie cushion unregulated so called commodity, and without going into the argument of whether it is medicine or not, they have denied you the right to produce it for yourself or others, because of jurisdiction of trade. I guess it does go back to that wheat farmer case. Hey, if everyone decided to grow wheat without the governments permission, it might change the wheat market in a way government had not intended nor wanted. Law of supply and demand be damned. Funny, but I trust the markets judgment in things economical (or medicinal for that matter) more then the governments, for some reason.

[zeugma]

i really would like to see Thomas get nominated for chief justice. I don't always agree with him, but his decisions and dissents, seem to make sense more than any of the other justices but Scalia.

[satchmodog9]

My thought would be to nominate the younger man to the bench. Scalia is getting up there.