MaxedOutMama
Monday, June 06, 2005
Gonzales v. Raich
In Gonzales v. Raich the Supreme Court decision upheld the proposition that the federal government can regulate privately growing marijuana for personal medical use even if it is authorized by state law. Justice O'Connor had her say in her dissent (joined by Thomas and Rehnquist):
That decision also offends many people's sense of liberty. But there is another distinction in this case from the facts in Wickard that the court failed to make in its oligarchic fervor; wheat or wheat products may be bought legally, whereas marijuana may not. Thus the impingement upon individual liberty is thus not a matter of price but an absolute denial of legal access in this case. Concluding its opinion the court wrote:
This is also a fundamental violation of the separation of federal and state powers embodied in the Constitution. To forbid a state to make such a legal exception under the doubtful doctrine that allowing private production and use of marijuana under certain circumstances would affect the entire nation has not been established. As the court remarked when striking Bowers in the course of deciding Lawrence v. Texas, "This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects." In other words, the law should not be based on speculative injuries, and it is a purely speculative and unobserved injury to Congress' regulatory power upon which the court based its decision in Gonzales v. Raich.
The right of nullifcation still remains with the people; so it is possible that the people may decide that they will never vote to convict anyone brought for trial in a federal court for possession or distribution of marijuana. The people might also decide to email their senators and representatives and suggest that many may find it impossible to convict in such cases until Congress acts to restrain the over-vigilance of US Attorneys who believe that they are on a crusading mission to preserve the dying and the ill from the evils of marijuana.
It is somewhat incredible that a court that finds a fundamental liberty interest involved in allowing someone to refuse medical treatment even if that medical treatment would allow them to die, or forbidding states to regulate private sexual contact among two men or two women, would also find that a US attorney can prosecute a dying person for the use of a doctor-prescribed narcotic under the theory that Congress has the ability to regulate intra-state commerce.
This decision will be a shock to the consciences of voters in many states, just as it apparently was to the consciences of the majority of the people of the state of California. This decision is all about federal power. It has nothing to do with the constitution as it was intended to function. It has nothing to do with justice or liberty. This decision ought to fuel the movement which is beginning to recommend a constitutional amendment to rebalance the powers of the federal government and the states.
(And Dingo, tell me again about how courts that advance individual rights are no threat to liberty. I want to hear your justification of this one.)
Also posted to Blogger News Network
This case exemplifies the role of States as laboratories.The States’ core police powers have always included authority to define criminal law and to protect the health, safety, and welfare of their citizens. Brecht v. Abraham-son, 507 U. S. 619, 635 (1993); Whalen v. Roe, 429 U. S. 589, 603, n. 30 (1977). Exercising those powers, California(by ballot initiative and then by legislative codification) has come to its own conclusion about the difficult and sensitive question of whether marijuana should be available to relieve severe pain and suffering. Today the Court sanctions an application of the federal Controlled Substances Act that extinguishes that experiment, without any proof that the personal cultivation, possession, and use of marijuana for medicinal purposes, if economic activity in the first place, has a substantial effect on interstate commerce and is therefore an appropriate subject of federal regulation....This is an example of activist judges and the threat they impose to liberty and efficient, rational governance. To set forth the idea that the Interstate Commerce clause allows the federal government to prosecute non-commercial intra-state conduct is factually ludicrous. Consider the practical application. Congress could, under such reasoning, mandate that you might not grow carrots in your backyard garden for your own consumption because that meant you weren't buying them at the grocery store. True, the court's opinion relied heavily upon Wickard v. Filburn, in which the Supreme Court had decided that Congress' ability to regulate the wheat market allowed it to regulate a farmer growing wheat upon his own farm for his own consumption.
Even if intrastate cultivation and possession of marijuana for one’s own medicinal use can properly be characterized as economic, and I question whether it can, it has not been shown that such activity substantially affects interstate commerce. Similarly, it is neither self-evident nor demonstrated that regulating such activity is necessary to the interstate drug control scheme.
The Court’s definition of economic activity is breathtaking. It defines as economic any activity involving the production, distribution, and consumption of commodities. And it appears to reason that when an interstate market for a commodity exists, regulating the intrastate manufacture or possession of that commodity is constitutional either because that intrastate activity is itself economic, or because regulating it is a rational part of regulating its market.
That decision also offends many people's sense of liberty. But there is another distinction in this case from the facts in Wickard that the court failed to make in its oligarchic fervor; wheat or wheat products may be bought legally, whereas marijuana may not. Thus the impingement upon individual liberty is thus not a matter of price but an absolute denial of legal access in this case. Concluding its opinion the court wrote:
Respondents also raise a substantive due process claim and seek to avail themselves of the medical necessity defense. These theories of relief were set forth in their complaint but were not reached by the Court of Appeals.We therefore do not address the question whether judicial relief is available to respondents on these alternative bases. We do note, however, the presence of another avenue of relief. As the Solicitor General confirmed during oral argument, the statute authorizes procedures for the reclassification of Schedule I drugs. But perhaps even more important than these legal avenues is the democratic process, in which the voices of voters allied with these respondents may one day be heard in the halls of Congress. Under the present state of the law, however, the judgment of the Court of Appeals must be vacated. The case is remanded for further proceedings consistent with this opinion.The irony of the recommended remedy is excruciating to those who have followed the court's recent jurisprudence. In Romer v. Evans, the court decided that Colorado voters did not have the right to amend Colorado's constitution to deny homosexuals the right to be treated as a specially protected class. The court reasoned that the effect was to impose a special disability upon homosexuals, because it removed from them the ability to lobby a local body or even the state government for legal protection. Instead, Amendment 2 forced them to lobby the entire Colorado electorate for redress. Justice Kennedy, writing for the court:
Amendment 2 bars homosexuals from securing protection against the injuries that these public accommodations laws address. That in itself is a severe consequence, but there is more. Amendment 2, in addition, nullifies specific legal protections for this targeted class in all transactions in housing, sale of real estate, insurance, health and welfare services, private education, and employment....Is the court's suggested remedy - that federal law itself be changed - not just as great a burden upon the ill and suffering people who were authorized to use marijuana under the California law? Those who wished to use marijuana to alleviate medical conditions had made and won their case to the California electorate. In Lawrence v. Texas, the court observed that a state law banning private sexual conduct could expose a person charged under it to legal sanctions other than those directly imposed, as well as being a fundamental infringement of personal liberty based on society's moral disapproval. Is this not just as true for the individuals protected under the California law? Justice Kennedy, writing for the court:
Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance....
A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.
It must be acknowledged, of course, that the Court in Bowers was making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law....Does anyone really believe that the impediment upon homosexuals in Texas weighed more than it now does upon the ill and suffering that the California law was meant to protect? One is forced to wonder if Justice Kennedy might have ruled in the reverse if the plaintiffs in Lawrence v. Texas had been prosecuted under a federal law ciminalizing sexual conduct.
The stigma this criminal statute imposes, moreover, is not trivial. The offense, to be sure, is but a class C misdemeanor, a minor offense in the Texas legal system. Still, it remains a criminal offense with all that imports for the dignity of the persons charged. The petitioners will bear on their record the history of their criminal convictions.
This is also a fundamental violation of the separation of federal and state powers embodied in the Constitution. To forbid a state to make such a legal exception under the doubtful doctrine that allowing private production and use of marijuana under certain circumstances would affect the entire nation has not been established. As the court remarked when striking Bowers in the course of deciding Lawrence v. Texas, "This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects." In other words, the law should not be based on speculative injuries, and it is a purely speculative and unobserved injury to Congress' regulatory power upon which the court based its decision in Gonzales v. Raich.
The right of nullifcation still remains with the people; so it is possible that the people may decide that they will never vote to convict anyone brought for trial in a federal court for possession or distribution of marijuana. The people might also decide to email their senators and representatives and suggest that many may find it impossible to convict in such cases until Congress acts to restrain the over-vigilance of US Attorneys who believe that they are on a crusading mission to preserve the dying and the ill from the evils of marijuana.
It is somewhat incredible that a court that finds a fundamental liberty interest involved in allowing someone to refuse medical treatment even if that medical treatment would allow them to die, or forbidding states to regulate private sexual contact among two men or two women, would also find that a US attorney can prosecute a dying person for the use of a doctor-prescribed narcotic under the theory that Congress has the ability to regulate intra-state commerce.
This decision will be a shock to the consciences of voters in many states, just as it apparently was to the consciences of the majority of the people of the state of California. This decision is all about federal power. It has nothing to do with the constitution as it was intended to function. It has nothing to do with justice or liberty. This decision ought to fuel the movement which is beginning to recommend a constitutional amendment to rebalance the powers of the federal government and the states.
(And Dingo, tell me again about how courts that advance individual rights are no threat to liberty. I want to hear your justification of this one.)
Also posted to Blogger News Network
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Great, great post.
An additional thought: only one Justice of the Supreme Court voted the proper way in both Lawrence and Raich. He's my favorite Justice, for his opinions, for his reasoning, and for the fact that he's a smart, witty and enjoyable man (I was fortunate enough to meet and talk with the Justice twice). When Rehnquist retires, I hope the next chief is Clarence Thomas.
An additional thought: only one Justice of the Supreme Court voted the proper way in both Lawrence and Raich. He's my favorite Justice, for his opinions, for his reasoning, and for the fact that he's a smart, witty and enjoyable man (I was fortunate enough to meet and talk with the Justice twice). When Rehnquist retires, I hope the next chief is Clarence Thomas.
Me too, although I would be okay with O'Connor - she has a habit of close and careful reasoning that would be good for a Chief Justice. For instance, in Lawrence she concurred on the basis of equal protection, on the basis that the law only prohibited the conduct between persons of the same sex. That was just as good. Nor did she concur in overruling Bowers. She is a very strategic thinker.
But Thomas would be the best. Of them all, he calls most frequently to the humanity and spirit of the constitution while sticking to the letter of it. Although I agree with the result in Lawrence, I have to agree with Thomas that there is simply no basis in the constitution for the court's opinion.
It is terrifying to realize that all our liberties depend upon the whims of a few people who derive most frequently from a class and an education system which is quite isolated from the realities of the common existence. Perhaps Thomas' personal history has something to do with his struggle to maintain the primacy of the letter.
But Thomas would be the best. Of them all, he calls most frequently to the humanity and spirit of the constitution while sticking to the letter of it. Although I agree with the result in Lawrence, I have to agree with Thomas that there is simply no basis in the constitution for the court's opinion.
It is terrifying to realize that all our liberties depend upon the whims of a few people who derive most frequently from a class and an education system which is quite isolated from the realities of the common existence. Perhaps Thomas' personal history has something to do with his struggle to maintain the primacy of the letter.
I think they made the wrong decision, also, but (there is always a but :)...
1) How the hell do you call this an activist decision, MOM? take a second and think about it. If they overturn the state law, they ACTIVISTS because they overturned the LEGISLATIVE BODY!!!... and if they overturn the federal law they are ACTIVISTS because they overturned the LEGISLATIVE BODY!!! You are guaranteed to have big bad ACTIVISTS COURT in these cases 100% of the time. One way or the other, the court has to overrule a legislative body... Can we please just dispense with the term "activist." As your teenage kids would say, "that is sooooo old."
2) This actually prooves you need a strong court, not a weaker one. If you think using the commerce clause is something new... You know that congress has been using that since the 30's. let me repeat that... Congress has been using that since the 30's. Guess what is the only body is that ever limits Congress's use and abuse of the commerce clause? That, my friend, would be the Supreme Court. The court had to finally check the Congress's abuse of the commerce clause in US v. Lopez. Yes, the SC is the only thing that stops Congress from using the commerce clause for pretty much everything and completely controlling everything. What you are actually wanting is a stronger court here, not a weaker one. Howga like dem apples?
3) The commerce clause is in the constitution, right? What happened to strict construcitonism? Whether you agree or disagree with the decision, where is the court making up new laws?
I am sorry, but this case just does not make your case at all. Plus, you never responded to the fact that the Indiana judge (divorce case) was an elected Republican judge.
1) How the hell do you call this an activist decision, MOM? take a second and think about it. If they overturn the state law, they ACTIVISTS because they overturned the LEGISLATIVE BODY!!!... and if they overturn the federal law they are ACTIVISTS because they overturned the LEGISLATIVE BODY!!! You are guaranteed to have big bad ACTIVISTS COURT in these cases 100% of the time. One way or the other, the court has to overrule a legislative body... Can we please just dispense with the term "activist." As your teenage kids would say, "that is sooooo old."
2) This actually prooves you need a strong court, not a weaker one. If you think using the commerce clause is something new... You know that congress has been using that since the 30's. let me repeat that... Congress has been using that since the 30's. Guess what is the only body is that ever limits Congress's use and abuse of the commerce clause? That, my friend, would be the Supreme Court. The court had to finally check the Congress's abuse of the commerce clause in US v. Lopez. Yes, the SC is the only thing that stops Congress from using the commerce clause for pretty much everything and completely controlling everything. What you are actually wanting is a stronger court here, not a weaker one. Howga like dem apples?
3) The commerce clause is in the constitution, right? What happened to strict construcitonism? Whether you agree or disagree with the decision, where is the court making up new laws?
I am sorry, but this case just does not make your case at all. Plus, you never responded to the fact that the Indiana judge (divorce case) was an elected Republican judge.
Dingo - judicial activism to me is making law - creating law - not interpreting it. It is quite a stretch to get from the Interstate Commerce clause to this mess. The judicial philosophy ennunciated is remarkable, to say the least.
I never answered the elected judge thing because I thought it was a pointless snipe. The problem is that when a judge does what he did - imposes a particular moral code - he or she is an activist judge. I don't even remember precisely which judges were appointed by which president, but I have said very clearly before that I don't think the problem is politics but judicial philosophy.
This is a judicially activist decision because it created a federal right that does not exist in the constitution. Dingo, I will not let you mischaracterize my meaning.
The issue to me is not a "strong" or a "weak" court. I want a court that is independent and therefore free to rule upon cases as it sees them. I do not want a court making up law. This decision almost reverses US v. Lopez, as O'Connor observed in some disbelief.
Back to my question to you. You said before that I should not fear an oligarchy from a court that only expands rights. I responded that from what I have been reading the history of jurisprudence lately has been to constrict rights in many cases.
This is largely a statist court. I happen to believe that their beliefs that they judicially legislated in Lawrence were morally correct, but that doesn't mean they have the right to invent law to support their moral beliefs.
Romer is pretty frightening, but they could have hemmed it in later. I did see the argument - I just considered it a fundamental power grab. It is not their morals I question in those cases - it is their inability to stick to their constitutional mandate. However I find it amazing that the same court that decided those cases as they did could then decide this one as they did.
Do you really believe that this is a ruling of a court that supports the Bill of Rights or the US Constitution? Do you really believe that this court is following a coherent judicial philosophy? Don't you see the direct contradiction between the principles ennunciated in Romer, Lawrence, and now Gonzales?
The Commerce clause gives Congress the power to regulate commerce among (that's between) the states. Since what we have here is no type of economic activity and affects no market, this is a monumental extention of the scope of the Commerce clause. Monumental. And let's not forget Amendments 9 and 10, shall we? Non-enumerated and reserved rights?
The courts will often find themselves in the situation of having to overturn either state or Congressional law. That's fine, if they do so according to constitutional principles. I would be a lot less upset if the court at this point could even stick to their own constitution, even though I find it exceedingly undemocratic that they should invent their own. But they aren't, Dingo. In cases where they feel it is morally correct to do so, they are writing new clauses to the Constitution, and they are happily ignoring the clauses written into the Constitution from the beginning in cases like this.
This court is exalting federal power, first and foremost. After that, if it feels it appropriate, it doles out a few additional rights in cases where those additional rights don't threaten the power of the federal government. If you can't see that, then you can't see that. But that is what is happening.
I never answered the elected judge thing because I thought it was a pointless snipe. The problem is that when a judge does what he did - imposes a particular moral code - he or she is an activist judge. I don't even remember precisely which judges were appointed by which president, but I have said very clearly before that I don't think the problem is politics but judicial philosophy.
This is a judicially activist decision because it created a federal right that does not exist in the constitution. Dingo, I will not let you mischaracterize my meaning.
The issue to me is not a "strong" or a "weak" court. I want a court that is independent and therefore free to rule upon cases as it sees them. I do not want a court making up law. This decision almost reverses US v. Lopez, as O'Connor observed in some disbelief.
Back to my question to you. You said before that I should not fear an oligarchy from a court that only expands rights. I responded that from what I have been reading the history of jurisprudence lately has been to constrict rights in many cases.
This is largely a statist court. I happen to believe that their beliefs that they judicially legislated in Lawrence were morally correct, but that doesn't mean they have the right to invent law to support their moral beliefs.
Romer is pretty frightening, but they could have hemmed it in later. I did see the argument - I just considered it a fundamental power grab. It is not their morals I question in those cases - it is their inability to stick to their constitutional mandate. However I find it amazing that the same court that decided those cases as they did could then decide this one as they did.
Do you really believe that this is a ruling of a court that supports the Bill of Rights or the US Constitution? Do you really believe that this court is following a coherent judicial philosophy? Don't you see the direct contradiction between the principles ennunciated in Romer, Lawrence, and now Gonzales?
The Commerce clause gives Congress the power to regulate commerce among (that's between) the states. Since what we have here is no type of economic activity and affects no market, this is a monumental extention of the scope of the Commerce clause. Monumental. And let's not forget Amendments 9 and 10, shall we? Non-enumerated and reserved rights?
The courts will often find themselves in the situation of having to overturn either state or Congressional law. That's fine, if they do so according to constitutional principles. I would be a lot less upset if the court at this point could even stick to their own constitution, even though I find it exceedingly undemocratic that they should invent their own. But they aren't, Dingo. In cases where they feel it is morally correct to do so, they are writing new clauses to the Constitution, and they are happily ignoring the clauses written into the Constitution from the beginning in cases like this.
This court is exalting federal power, first and foremost. After that, if it feels it appropriate, it doles out a few additional rights in cases where those additional rights don't threaten the power of the federal government. If you can't see that, then you can't see that. But that is what is happening.
As I said, I don't like the decision either. I think it is an over interpritation of the commerce clause also. I don't argue with you on that. What I do argue with is if this is an "activist court."
But,
1) the commerce clause is in the constitution. You can't say they are making up law because it is there, black and white. How it is interpreted, can go many ways, but that does not make it activist. The point I am trying to get across is that this was not "making up law." It was interpretation. Did you ever read the post I did about this?
http://barkingdingo.blogspot.com/2005/05/constructionist-myth.html
2) what you have here is an "activist" congress that is overstepping its bounds. The court is defering to the congress. You can't ask the courts to defer to congress in cases like Schiavo, and overrule the states on one hand and the complain that the courts defered to congress on this and overruled the states. There is no more consistency in that than the courts you are complaining about.
3) the 9th and 10th amendment have been wholly overlooked and ignored by the courts. BUT, if the courts do start recognizing those amendments more, you are going to be HANDING the courts license to make up "laws" and "rights." I would argue that it is the one door you would not want opened up as someone who does not want activists courts.
basically, your ideals are not reconcilable with reality. I understand your frustration, but it is just impossible to have a court that is both emasculated and empowered at the same time.
I'll comment more in the morning, but right now, it is late.
But,
1) the commerce clause is in the constitution. You can't say they are making up law because it is there, black and white. How it is interpreted, can go many ways, but that does not make it activist. The point I am trying to get across is that this was not "making up law." It was interpretation. Did you ever read the post I did about this?
http://barkingdingo.blogspot.com/2005/05/constructionist-myth.html
2) what you have here is an "activist" congress that is overstepping its bounds. The court is defering to the congress. You can't ask the courts to defer to congress in cases like Schiavo, and overrule the states on one hand and the complain that the courts defered to congress on this and overruled the states. There is no more consistency in that than the courts you are complaining about.
3) the 9th and 10th amendment have been wholly overlooked and ignored by the courts. BUT, if the courts do start recognizing those amendments more, you are going to be HANDING the courts license to make up "laws" and "rights." I would argue that it is the one door you would not want opened up as someone who does not want activists courts.
basically, your ideals are not reconcilable with reality. I understand your frustration, but it is just impossible to have a court that is both emasculated and empowered at the same time.
I'll comment more in the morning, but right now, it is late.
"To set forth the idea that the Interstate Commerce clause allows the federal government to prosecute non-commercial intra-state conduct is factually ludicrous. Consider the practical application. Congress could, under such reasoning, mandate that you might not grow carrots in your backyard garden for your own consumption because that meant you weren't buying them at the grocery store."
And, it might allow them to stop racial discrimination. The courts were able to stop state seregation laws through the commerce clause.
And you have still not say what right the court was making up? The commerce clause may have been interpreted in a way you and I do not like, but they didn't make up anything.
"And Dingo, tell me again about how courts that advance individual rights are no threat to liberty."
where were the individual rights advanced in Raich?
And, it might allow them to stop racial discrimination. The courts were able to stop state seregation laws through the commerce clause.
And you have still not say what right the court was making up? The commerce clause may have been interpreted in a way you and I do not like, but they didn't make up anything.
"And Dingo, tell me again about how courts that advance individual rights are no threat to liberty."
where were the individual rights advanced in Raich?
The point, Dingo, is that the courts aren't really advancing individual rights. You said they were.
We'll see how Kelo comes out.
You and I may have fundamentally different ideas of government. My idea is that our system can only stay away from profoundly undemocratic concentrations of power when the states and the federal government exert opposing forces and the powers in the three branches of federal governments remain effectively balanced.
As I have said before, the executive is gaining power at the expense of Congress (and the SC has been very helpful to the Executive), the federal government is gaining power over the states (assisted nobly by the SC), and the SC is not advancing individual rights supposed to be guaranteed under the constitution EITHER. It is constraining them.
You say I don't need to worry about an oligarchy. I think I do.
We'll see how Kelo comes out.
You and I may have fundamentally different ideas of government. My idea is that our system can only stay away from profoundly undemocratic concentrations of power when the states and the federal government exert opposing forces and the powers in the three branches of federal governments remain effectively balanced.
As I have said before, the executive is gaining power at the expense of Congress (and the SC has been very helpful to the Executive), the federal government is gaining power over the states (assisted nobly by the SC), and the SC is not advancing individual rights supposed to be guaranteed under the constitution EITHER. It is constraining them.
You say I don't need to worry about an oligarchy. I think I do.
"and the SC is not advancing individual rights supposed to be guaranteed under the constitution EITHER. It is constraining them."
So, then who wins when there are constitutional conflicts? That is what you have here, competing constitutional rights of states, federal government and individuals. Read the briefs presented by the government (first and reply). The SC doesn't make these rulings in a vacuum. These are complex issues. Sorry, but I can't find the Respondents Answer, but you can make it out from the Reply brief.
http://www.usdoj.gov/osg/briefs/2004/3mer/2mer/2003-1454.mer.aa.html
http://www.usdoj.gov/osg/briefs/2004/3mer/2mer/2003-1454.mer.rep.html
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So, then who wins when there are constitutional conflicts? That is what you have here, competing constitutional rights of states, federal government and individuals. Read the briefs presented by the government (first and reply). The SC doesn't make these rulings in a vacuum. These are complex issues. Sorry, but I can't find the Respondents Answer, but you can make it out from the Reply brief.
http://www.usdoj.gov/osg/briefs/2004/3mer/2mer/2003-1454.mer.aa.html
http://www.usdoj.gov/osg/briefs/2004/3mer/2mer/2003-1454.mer.rep.html
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