Bad Supreme Court, Bad!
To the disappointment of many but the surprise of none, today the U.S. Supreme Court screwed the pooch (PDF) and upheld the federal ban on medical marijuana, 6-3. Four of the Gang of Six were a given, having voted to judicially nullify the Tenth Amendment outright in U.S. v. Lopez, 514 U. S. 549 (1995) and U.S. v. Morrison 529 U.S. 598 (2000), so it only took one turncoat to ruin this decision. Given the lack of federalism objections to nationwide drug laws in other countries around the world,* combined with his recent announcement that international opinion trumps the text of the U.S. Constitution, Kennedy easily sided with the “liberal” Justices who, much to the dismay of pot-smoking liberals everywhere, unanimously upheld the federal prohibition on all marijuana, medical or otherwise.
While the outcome and the final score came as no surprise, two minor aspects of the judicial makeup may. For one thing, in recent years Justice O’Connor has gone just as wobbly as Justice Kennedy, so I was a bit surprised to see her not only stick to her federalist guns, but write the lead dissenting opinion in the case. For another, Justice Scalia’s concurring opinion seemed a bit anomalous, essentially boiling down to “No, you dummies, we shouldn’t be upholding this unnecessary, improper and blatantly unconstitutional law under a tortured reading of the commerce clause, we should uphold it under an equally tortured reading of the ‘necessary and proper’ clause, instead. Dammit.” I didn’t put such a non-distinction distinction past Justice Rehnquist, who voted to uphold a ban on flag-burning, but I did think Justice Scalia was better than that.
Justice Thomas did not disappoint (except, of course, in the sense that he did disappoint the allegedly non-racist moonbats who expect him to vote reflexively with Justice Scalia every time), nor did Justice Rehnquist, despite his failing health. Unfortunately, Justice Rehnquist will doubtless be gone before the next term, leaving only three Justices on the bench who think the Tenth Amendment means anything at all, and only two who think it means much. All this could change for the better given our conservative President and our allegedly Republican Senate, if the liberal med marijuana advocates had the good sense to tell their fellow liberals to quit filibustering President Bush’s more conserative appointees and start supporting them instead. Unfortunately, that will never happen because most liberals care more about feeding their addiction to the federal government than they do about “medical” marijuana, and the few liberals who are serious about this issue are too stoned to care.
Also too dazed and/or confused to appreciate the effects of today’s idiotic ruling is Robert Raich, the losing attorney in the case, who according to the Frisco Chronicle had this to say:
“Today’s decision by the Supreme Court has absolutely no bearing on the validity of state and local laws that continue to protect patients and their doctors. Patients and doctors in states with medical cannabis laws continue to be protected from prosecution by their local and state authorities.”
That may be true of the existing federal law, as written, but it doesn’t mean patients and doctors are “protected” from anything Congress may do in the future. If Congress can ban states from allowing medical marijuana, upping the ante on enforcement is a non-issue by comparison. Following today’s ruling, if you use medical marijuana, you’re about as “protected” as illegal aliens are in your city.
*This is the proverbial cloud on the silver lining that was last week’s votes in France and the Netherlands. Had the Netherlands voted to ratify the EU Constitution rather than to reject it, and had an EU court later upheld the Netherlands’ liberal drug policies as the sovereign right of a member state, “Justice” Kennedy may have had something to work with.
June 6th, 2005 at 1:16 pm
I just have a hard time getting excited about the Supreme Court dashing the hopes for Libertarian Nirvana.
I’m all for a decent reading of the Commerce Clause, but it seems like the ability to forclose a market, is a necessary and proper extension of the Commerce Clause. I guess I read Scalia’s concurrence more favorably.
June 6th, 2005 at 2:00 pm
Who said anything about libertarian nirvana? Do only libertarians believe there’s a Tenth Amendment nowadays?
Scalia’s view seems to be that originalism is a great tool for combatting the excesses of the Warren Court, but not a useful guide for interpreting the Constitution more generally. Historically, the Commerce Clause is there to promote free trade between the states, not to set up Congress as the uber-state free to shut down any business in any state as it sees fit. Scalia just doesn’t care.
Ah, for the good old days, when even those foolish enough to advocate national prohibition were nevertheless wise enough to understand that they needed a constitutional amendment to do so.
June 6th, 2005 at 2:22 pm
Well, is there little doubt that the Congress can ban the interstate traffic of any material? I assume there is none, so the question turns on what is necessary and proper power to ban the interstate traffic of certain materials. If the prohibition of materials is within that necessary and proper power, than it seems to fall squarely within the numerated powers. Now, consider how hard it would be to regulate the interstate traffic of certain goods without the authority to ban possession of those goods and we can see why the extension of a N&P power makes sense. It is not exclusively libertarian to think that the Tenth Amendment means something. It tends to be libertarian that the Tenth Amendment means something greater than it does.
Let’s not forget that “in the good old days,” New York and Rhode Island were farther apart for “Interstate Commerce” than California and Rhode Island are nowadays.
June 6th, 2005 at 2:31 pm
I think it is consistent with originalism to think that while the necessary and proper clause means one thing, as technology and time passes, what is necessary and proper changes.
June 6th, 2005 at 3:18 pm
First of all, I don’t assume that the power to regulate interstate commerce, when properly construed, gives Congress carte blanche to prohibit the interstate traffic of anything they want, for any reason or no reason. The purpose of the commerce clause was to ensure free trade between the states, not to add an extra layer of protectionism, and certainly not to give Congress an excuse to regulate purely intrastate activity under the pretext of regulating interstate commerce. To accept your convoluted logic about pot, I’d have to accept the same logic for everything else, leading to the inevitable conclusion that the Tenth Amendment no longer means anything at all. Not that it means less than I’d prefer, mind you, but that it means literally nothing of substance; at most, that Congress is still required to consult Lopez and Morrison as drafting guides for future “economic” laws. But since you think today’s ruling leaves at least some substance of the Tenth Amendment intact, I’d be curious to know what, exactly, you think Congress can’t regulate, and why.
That’s like arguing that First Amendment shouldn’t mean anything because TV, radio and the “Internets” hadn’t been invented in 1791, or that the Second Amendment shouldn’t mean anything because today’s guns are more functional than any that existed back then. Those are arguments for amending the Constitution, not for ignoring it while pretending not to.
June 6th, 2005 at 4:12 pm
Regardless of the purpose of the Commerce Clause, textually, the Commerce Clause gave the Congress the power to regulate Interstate Commerce, the drafters of the constitution for what ever reason did not include a “only that it increases free trade” clause.
Secondly, how has the Tenth Amendment come to mean nothing? It hasn’t. It means exactly what it provides for that the powers not granted to the Feds remain with the states and people respectively. This would include the regulation of things outside of interstate commerce. This category will necessarily be smaller than it was in 1800, but is that surprising? More things affect interstate commerce today, than they did in the 1800s. My point about R.I. and New York is that in 1800, the acts of Rhode Islanders were far less relevant to New Yorkers in 1800 than R.I. and Californians today. The U.S. is much smaller in time to cross than it was in 1800 despite its huge increase in Area. Commerce is far more developed than it was even 100 years ago. Let alone 200.
Note that even in Lopez, Scalia conceded that regulation would be allowed if it was essential part of a larger regulation of economic activity. That seems consistent with his reading in Raich.
Now you say That’s like arguing that First Amendment shouldn’t mean anything because TV, radio and the “Internets” hadn’t been invented in 1791, or that the Second Amendment shouldn’t mean anything because today’s guns are more functional than any that existed back then. Those are arguments for amending the Constitution, not for ignoring it while pretending not to. Come on seriously, I think my point better fits with an interpretation that extends first amendment protection to “communication” which may not be narrowly understood as verbal speech. It’s your interpretation (that necessary and proper is limited to whatever was necessary and proper in 1800 for the regulation of interstate commerce) that would limit the first amendment to speech or the second amendment to low-tech rifles. If, we think that the first amendment should expand to include changes in technology why shouldn’t the necessary and proper clause expand to include what is necessary and proper for regulation of interstate commerce in 2005. Or did I miss the 28th amendment which provided that rights expand with technology but powers don’t? You seriously wouldn’t suggest we need a constitutional amendment for an air force would you?
See, I can be snarky when I want. In any event, all in the best Xrlq.
June 6th, 2005 at 4:33 pm
I think you’re misunderstanding my position. I’m not arguing that the definition of what is or isn’t reasonable or proper may vary over time. I am arguing that it can’t vary to the point of severely impacting the Tenth Amendment, or even eradicating the Tenth Amendment altogether. To the extent the two conflict, shouldn’t the newer provision prevail?
Such as home-grown pot, held for personal use with no intent to distribute to anyone else nor to travel to another state? Oops, scratch that example, or anything else that can be as easily connected with interstate commerce as that. Meanwhile, I’m still waiting for a single, concrete example of some any activity that is so far removed from interstate commerce as to be off limits to the federal government on account the Tenth Amendment, as intepreted by the majority today.
June 6th, 2005 at 5:15 pm
I can think of a couple examples, things such as morality based regulation. The criminalization of adultery for example, or if it were still “constitutional” the regulation of sodomy. Definations of Marriage, outside of full-faith and credit defination or for federal tax and spend purposes. The regulation of bigamy etc.
Additionally, criminalization of non-consentual acts of violence economically unrelated, such as rape, or crimes of passion without an economic motivation.
FWIW, the Supreme Court has to some degree limited the ability of the states to regulate some of those things, but that the Supreme Court has cut off the most relevant portion of the Tenth Amendment reserved powers by the act of the interpretation of the 14th, is the fault of the court, not mine.
I admit the examples are limited, but that flows from our increasing economic interconnectedness.
I am arguing that it can’t vary to the point of severely impacting the Tenth Amendment, or even eradicating the Tenth Amendment altogether. To the extent the two conflict, shouldn’t the newer provision prevail?
But I guess, here’s the thing…ultimately, the Tenth Amendment states that powers not granted are reserved. That’s doesn’t conflict with the necessary and proper clause at all. The necessary and proper power was granted to the feds. However, wise or foolish that may have been. If what is necessary and proper changes, does that impact the Tenth Amendment? The Tenth Amendment doesn’t reserve extensions of N&P. So as the realm of N&P grows the Tenth Amendment will fade. Is that a tragedy? No, it is the way the amendment was meant to work. If it meant to limit the expansion of N&P, it would have so said. Yes, the 10th is later in time, but the statute doesn’t affect the granted power.
If I granted to you the power to take care of my vineyard for example, and an N&P power for taking care of my vineyard, but said, Whatever power I haven’t given you is still mine. And then the state created more and more requirements for vineyard operators (must provide annual accountings, must pay workers a minimum wage, required the vineyard to approve certain utility easements etc.) Would your N&P power include that, I’d think so, it necessarily expands if what’s necessary to take care of the vineyard expands. That doesn’t affect my reservation, except that what I’ve reserved is diminishing, because what’s N&P is increasing.
June 6th, 2005 at 5:22 pm
Your examples may be right but I wouldn’t bet the farm on them. Suppose Congress passed an omnibus statute “finding and declaring” that adultery, bigamy and non-conventional marriage all substantially affected interstate commerce, estabilshing a national definition of marriage and making adultery and bigamy federal offenses. Prior to today’s ruling, I’d have assumed that such a law would easily be kicked under Morrison. Now, I’m not so sure, and I’m even less sure that any of these things affect interstate commerce any less than the private, intrastate use of marijuana.
June 6th, 2005 at 5:28 pm
Well, I wouldn’t bet the farm on anything when it comes to the Supreme Court for sure!
But I grant, the over/under line as to whether those would be too far outside the commerce clause has changed after Raich, and in the direction of more likely to be upheld. I still think however, it’s more likely than not that they would not be upheld.
June 6th, 2005 at 5:54 pm
This whole issue leaves bare the hypocrisy of those who support the “compassionate use” argument but don’t have the wontons enough to actually draft or support legislation to that end (removal of MJ as a schedule II drug, via modification of 21-USC-812).
They will bleat and preen for the camera, and trot forth the widow who can’t eat anything but Campbell’s Chicken Broth unless she gets stoney-high, but at the same time they will send forth missives declaring themselves foursquare for the War On Drugs, for they Care About Our Children’s Future!
My suggestion: Pick one and go with it. If tree is such a great, medicinal drug, absolutely beneficial to all exposed to it, then start the legislation, see it through. Prohibition was overturned in the 1930s, and that was done by constitutional amendment, a far more difficult process. If y’all can’t (or won’t) have the balls to go on record as to what you support in regards to marijuana, then STFU. The supremes have ruled.
Thatisall.
June 6th, 2005 at 9:47 pm
Scalia’s Hypocricy
Conservatives talk a good game about states’ rights. We now know that many of them are bald-faced liars. Antonin Scalia chief among them, along with anyone else who endorses
June 6th, 2005 at 9:55 pm
I suppose all that Joel’s reading of the 10th amendment boils down to is, “The states may pass laws even more restrictive and intrusive than the Federal government if the want to.”
I’m sorry, but growing pot in your own home under medicinal license by the state isn’t interstate commerce. It just isn’t.
June 6th, 2005 at 10:01 pm
[...] kes the most sense to me. Others in the blogosphere are ranting and raving: The Agitator, XRLQ, Wizbang! and TalkLeft. You can read the Supreme Court’s opinion here.
[...]
June 7th, 2005 at 6:21 am
I suppose all that Joel’s reading of the 10th amendment boils down to is, “The states may pass laws even more restrictive and intrusive than the Federal government if the want to.”
But, what does the 10th Amendment Say?
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
So, my reading of the 10th amendment in the way you describe it is absolutely correct because that’s what the 10th amendment says, that’s states have even more powers than the feds. So I don’t see what your complaint with my reading is? Other than that you don’t like it, which is fair, but unconvincing.
As to the statement that growing pot “just isn’t just isn’t” interstate commerce, look, I’d agree with you that it’s not. But, let’s say, even though you may not, that the national regulation of pharmaceuticals and controlled substances is. IF, the regulation of possession of those controlled substances is Necessary and Proper, than bam easy decision, the regulation stands under the enumerated powers.
June 7th, 2005 at 6:32 am
Dean- You take issue with that reading of the Tenth Amendment, but that’s almost exactly what the Tenth Amendment says. The Tenth amendment recognizes powers reserved to the states and people. So, read “The states may pass laws even more restrictive and intrusive than the Federal government if the want to.” is not too far off in fact, pre-14th amendment days there was almost nothing that a state could not regulate. As the bill of rights did not apply against the states. (Congress shall make no law, not Pennsylvania).
I’m sorry, but growing pot in your own home under medicinal license by the state isn’t interstate commerce. It just isn’t.
So what if it isn’t, that’s not the issue. The issue is, is the regulation of possession and homegrown cultivation of controlled substances a Necessary and Proper extension of the Commerce Clause. IF, there is to be a nationwide drug regulation (which necessarily is Interstate Commerce), as well as Pharma regulation, than the regulation of possession and cultivation could easily fall within the Necessary and Proper power. I think it does, apparently Scalia does as well, despite how poorly he is being treated.
June 7th, 2005 at 7:23 am
Doh-I thought the 15th comment got destroyed. I wasn’t trying to be extra snarky by saying the same thing twice.
June 9th, 2005 at 1:26 pm
Tenth Amendment Calling Justice Scalia, Tenth Amendment Calling Justice Scalia…
Remember me?Amendment X.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.