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. _______________________________________________ Politech mailing list Archived at http://www.politechbot.com/ Moderated by Declan McCullagh (http://www.mccullagh.org/)
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