[IP] In medical marijuana case, Supreme Court says everything is interstate commerce [econ]
Begin forwarded message:
From: Declan McCullagh <declan@xxxxxxxx>
Date: June 6, 2005 11:05:26 PM EDT
To: politech@xxxxxxxxxxxxxxx
Subject: [Politech] In medical marijuana case, Supreme Court says
everything is interstate commerce [econ]
This might seem like unusual fare for Politech, but it's really not that
far afield. Today's decision in Gonzales v. Raich hints at how the
Supreme Court would rule on other cases dealing with federalism. It
also shows the lack of respect that six of the current Supreme Court
justices have for the plain text of the Constitution:
http://straylight.law.cornell.edu/supct/html/03-1454.ZS.html
Perhaps liberals will overcome their conventional distaste for
Justice Thomas and read his critique of how the majority got it wrong:
http://straylight.law.cornell.edu/supct/html/03-1454.ZD1.html
Background:
http://lsolum.blogspot.com/archives/2005_06_01_lsolum_archive.html
Below is GMU law professor David Bernstein's take, excerpted. It's
worth reading. He's being diplomatic: another way to say it is that
we live during a time of rule by men and women on the bench and in
Congress, each governed by personal whims and predilections and
fears. The rule of law, with a federal government properly limited by
constitutional dictates, no longer exists.
-Declan
---
http://volokh.com/archives/
archive_2005_06_05-2005_06_11.shtml#1118075289
(1) The five-member majority of the Court simply does not take
federalism seriously. Justice Stevens writes that Congressional
factual findings are required when there is a "special concern such
as the protection of free of speech." Apparently, however, the
Constitution's limitations on federal power--critical by any measure
to the American system of government--are not a "special concern," or
even especially important.
(4) There are essentially two strategies for those who are concerned
with civil liberties for limiting the government's ability to abuse
the rights of the public. One is the standard ACLU strategy of being
a liberal supporter of broad government power, and then insisting
that the government respect individual rights, especially
constitutional rights, when using that power. The other strategy,
followed by libertarians, is to try to limit the government's general
power to begin with because the government cannot abuse power it does
not have. The drug war provides a least one example of the
superiority of the libertarian strategy. The drug war has run
roughshod over the civil libertarian accomplishments of the Warren
Court, leading to a weakening to various degrees of the First,
Second, Fourth, Fifth, Sixth, and Eighth amendments, not to mention a
huge increase in the prison population, and the denial of the basic
right to use relatively innocuous recreational drugs, even for
medicinal or health purposes. Far better to have denied the federal
government the power to regulate intrastate use of and sale of drugs
to begin with, as, I recall, Justice Van Devanter advocated on
Commerce Clause grounds way back in the "dark ages" of the 1920's.
(5) I was both amused and angered by Justice Stevens's paean to the
democratic process as the appropriate avenue of relief for advocates
of medical marijuana at the end of his opinion. Every Justice who
joined Stevens's opinion voted to prohibit states from regulating
homosexual sex in Lawrence and [if they were on the Court at the
time] voted to limit the government's power to regulate abortion in
Casey. Why was the democratic process not the appropriate avenue of
relief for the victims of overzealous government regulation in those
cases? It seems we do to some extent live under a system where the
personal preferences of the Justices, having nothing to do with the
history, text, or logic of the Constitution, dictate when the Supreme
Court will or will not intervene to overturn particular regulations.
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