Posted on 10/23/2005 3:45:57 PM PDT by RWR8189
THE BUSH ADMINISTRATION CLAIMS THE authority to stop Oregon physicians from using prescription drugs to implement that state's unique program of physician-assisted suicide. But the administration's effort to use an ambiguous federal drug statute to undermine Oregon's assisted suicide law is a betrayal of conservative legal principles. Gonzales v. Oregon, argued before the Supreme Court earlier this month, may give an early signal about the commitment of the emerging Roberts Court to those principles. And the Court's decision could have unexpected implications for a range of other issues, including future policies about abortion.
Like the administration, I believe that the people of Oregon made a terrible mistake when they voted in two separate popular referenda to authorize Oregon doctors to help their patients commit suicide. Physicians are uniquely empowered by their technical knowledge and the nature of their work either to heal or to kill, and their patients know it. For millennia, the chief safeguard against abuse of this power has been the Hippocratic ethic, which forbids a doctor from seeking to hasten the death of any patient. That ethic was compromised when physicians began to violate a related Hippocratic prohibition of abortion, and it has continued to crumble in the face of pressures for doctors to make moral decisions (masquerading as medical decisions) about whose life is worth preserving. The Oregon law is a step along the path toward a world of legalized euthanasia in which seriously ill people will have good reasons to worry about what their doctors are up to.
Unlike the Bush administration, however, I believe the voters of Oregon are adults who are entitled to make their own decisions about this important policy question, even if they disagree with me. Among the signal achievements of the late Chief Justice Rehnquist was his long crusade to revive the constitutional principle of federalism. That principle demands that the people of each state be allowed to govern themselves as they see fit, so long as their decisions are not forbidden by the Constitution itself (as in certain decisions involving racial discrimination) or by federal statutes covering issues assigned by the Constitution to the jurisdiction of Congress (such as the regulation of foreign and interstate commerce).
The constitutional principle of federalism suggests that Oregon's assisted suicide law should be immune from congressional interference. Virtually all of the people affected by Oregon's law will be Oregonians, and there is nothing in Oregon's decision that will interfere with other states' ability to choose a different policy in regulating their own physicians. In any event, Congress has not clearly authorized the Bush administration to interfere with Oregon's decision. The federal statute generally requires that doctors with state licenses to prescribe drugs be given a federal license as well. Federal authorities do have a vaguely worded authorization to yank the licenses of doctors who behave irresponsibly, which was aimed at allowing federal agents to quickly shut down doctors who set up shop as drug dealers. The Bush administration is using this provision to claim a power to override any state law involving prescription drugs if the attorney general disagrees with that state's chosen policy about the proper use of such drugs.
The drug statute can easily be interpreted to leave policy decisions about medical practice to the states. The statute does not clearly grant the authority the administration is claiming, and it might be unconstitutional if it did. In any event, there was absolutely no necessity for the administration to claim this power (which reversed the Justice Department's previous position). This is a legally gratuitous departure from the principle that the states are free to manage their own internal affairs unless a valid federal law clearly constrains their discretion.
There may be further implications. If the Roberts Court eventually overrules Roe v. Wade, as I believe it should, the abortion issue will return to the democratic processes of each state, which is where it lay before the Supreme Court usurped state authority. We can be sure that interest groups on both sides of that issue--none of which is likely to have enough political support to obtain a clearly worded federal statute, let alone a constitutional amendment--will seek to get future administrations to attack state laws they disagree with, using maneuvers like the one the Bush administration has adopted here.
Assisted suicide is a serious issue. So is abortion. Less visibly, but no less important, this case involves the obligation of judges to be faithful to the constitutional principle of federalism. That principle should be especially significant in guiding the resolution of controversial issues, but the principle seldom has a strong political constituency. For that reason, whatever our views on assisted suicide and abortion, we should all hope that in this case the new chief justice will be true to Rehnquist's spirit rather than to the will of the president who appointed him.
Nelson Lund teaches at George Mason University School of Law in Arlington, Virginia.
I will stipulate that government agents will, at gun point, enforce all sorts of junk that's contrary to the Constitution.
If I am ever on a jury, however, I will act according to the Constitution as I understand it, and not as it has been misconstrued over the years. I believe every citizen should do likewise.
To be sure, I will in many cases bow to the judgement of courts when I find such judgement to be consistent with common sense. That does not, however, by any stretch that I regard the courts as master.
One of the things that has happened over the years is that the role of juries has been diminished. Among other things, juries used to effectively enforce a few unwritten rules:
Suppose a person has his friend at the DMV falsify the age on his driver's license. This person goes to a bar and buys a beer even though he's under 21 (his license says he's over). The bartender is indicted for underage serving and appears before you (you're on the jury). If the facts were as above, and the law did not specify that the presentation of a prima facie valid license was a legal defense, would you convict? Why or why not?
Suppose, as another example, that Congress were to pass the following legislation:
The only rational way I can see for preventing the passange and enforcement of such laws, without giving undue power to judges, would be for jurors to view laws as being limitted by their claimed rationale. In the case of the proposed legislation, a jury would have to find that a person not only smoked within fifty miles of a road or throughfare used for interstate commerce, but also that they did so in such a way that their smoke increased the risk of semi-trailer accidents on that road.
If a person riding in a semi were to blow smoke in the driver's face while the vehicle was in motion on a road used for interstate commerce, a jury might find that such action met the statutory and constitutional requirements above. But if someone was charged with smoking in their home, I don't think a jury would find that the factual obligations had been met.
It is possible for the government to make someone a slave. It is not, so far as I am aware, possible for a government to turn a person into an orangutan. Further, even if technology were to make it possible, I would suggest that such an action would probably be construed as cruel and unusual punishment.
What is so hard about the concept that a person convicted of a crime becomes a slave of the state? Would the state have the authority to demand that anyone who wasn't a slave live in a prison, conduct their lives according to a certain schedule, and perform labor for the state under the that the term of incarceration would be extended if they didn't?
Just that...
No person shall be... deprived of life... without due process of law...
No State shall... deprive any person of life... without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
It does say ANY PERSON.
If you decide to take your life by your own hand, that is one thing. But the state allowing someone else to do so without a trial is another matter entirely...
(Self defense is a red herring.)
See Lopez.
The power to regulate alcohol among the several states, a power that the poster claimed Congress didn't have.
If it took an amendment to ban alcohol, and that amendment was repealed, why Section 2?
The wording of the Commerce Clause is sufficiently vague to allow the regulation of ship navigation, railroads, or jet airplanes. Maybe you see some major difference which requires a constitutional amendment -- I don't.
Whether the power is contained within the Commerce Clause or some amendment, let's not lose sight of the issue. Madison did not intend that the states be allowed to undermine and subvert a constitutional Congressional regulatory effort.
And nothing to show that it was effective. And that's the point Congress was making -- medical marijuana is a fungible product which cannot be distinguised from recreational marijuana.
"it should be the job of a jury to determine whether, in a particular case, such entry is likely."
In each case, a California jury is going to determine if their marijuana is making its way into interstate commerce? Yeah right.
If so, then let's extend that to driving, drinking, voting, marriage, gun ownership, etc. Every individual deserves their day in court to prove that they are responsible enough to engage in that activity -- no more one-size-fits-all-you-must-be-21-years-old.
The poison was illegally prescribed. That's the point.
And everytime they catch a counterfeiter, they'll have to prove that his specific phoney bills damaged the economy.
That was the finding of one lower court, but the USSC has not incorporated the 3rd amendment.
So instead of one Wickard v Filburn, you'd have what, 10,000 of them? 100,000? 1,000,000?
And this makes sense to you?
You'd have to prove that his specific bills were (before their discovery) likely to interfere with Congress' efforts to regulate the value of money (some may question whether that power applies to fiat notes as well as coinage, but that's a separate issue). Not that they in fact did so (since their discovery would likely prevent that).
I don't think requiring the government to show that would be overly burdensome. I think the fact that the guy was caught with bogus money in apparently-circulable condition would probably be enough to convince a jury of an intent to distribute it unless he could demonstrate that it would not have. For example, if the person was filming television commercials about "don't let your money go up in smoke", the bogus bills were produced as props, and they were produced in such a way that they would look good on camera but any normal person examining them would immediately know they were fake, I would suggest that he could overcome the presumption that the bills were likely to adversely affect the money supply.
Sure it does. What makes you think it doesn't? I don't know of any state that exercises such power over ropes, though many do exercise it over certain types of politically-incorrect knives.
So instead of one Wickard v Filburn, you'd have what, 10,000 of them? 100,000? 1,000,000? And this makes sense to you?
What's the problem? This isn't about calling in a jury just to decide the "interstate commerce" question--the same jury would be used to decide all the other factual questions in the case. In most of the cases that the federal government has any business being involved in, proving the "interstate commerce" nexus would be a very small part of the government's case. Indeed, it would often be a "gimme". But letting juries deal with those few cases where the question of interstate commercial involvement is a matter of disputed fact seems much better than declaring that it never is.
Among other things, letting jurors decide the matter avoids the question of how strong the "interstate commerce" nexus has to be for a statute to pass muster. If a statute is really about interstate commerce, the government will have no trouble selling juries on that fact, and will thus be able to score convictions. If, however, the "interstate commerce" clause is merely used as a pretext for legislation that actually has only the flimsiest relation to actual interstate commerce, then juries would more likely not buy the government's arguments and the statute would thus be unenforceable. For matters that are between the two extremes, the government would be able to prosecute those cases where the ties were strong, and not prosecute those where the ties were weak?
What's the problem?
Not every individual deserves to make his own laws, tpaine. Consider trespassers, for instance.
Not on this planet.
Think Soviet show trials.
Not on this planet.
Well, perhaps "prove" was too strong a word, but my point would be that to convict, a jury which is aware of its rights and responsibilities should believe that the money was either produced for the purpose of being used fraudulently, or was produced in such a fashion that it was likely to be used fraudulently.
Of course, in most cases, the fact that a guy was producing counterfeit bills and can't offer anything to contradict the obvious theory (that he was intending to use them fraudulently, since that is the normal purpose for which such bills are produced) would suffice. But suppose a guy produces bills which look like bank notes except that they're very skilled pen and ink drawings on a tablecloth. Such notes may fall afoul of the legal definitions of "couterfeit banknotes", but I don't think a responsible jury would convict someone who produced them [IIRC, about 15-20 years ago there was a guy in Britain who was charged with counterfeiting for doing exactly that, and a jury acquitted him].
Of course, nowadays few juries are aware that their responsibility is to society and not to the government. To be sure, the interests of government and society often overlap, but when they diverge a jury's duty is to put society first.
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