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?
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.)? :-)
"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
"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?
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?]
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.
......would it or would it not be in violation of S.D to go back to the original ruling?
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.
I think this is the key point. Thomas is right.
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?
My thought would be to nominate the younger man to the bench. Scalia is getting up there.
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