Supreme Court Medical Marijuana

[TomCollins]

Please do not vote if you already know the answer.
The vote was 6-3 against use of medical marijuana.

Which three justices voted for the pot smokers?

[TomCollins]

For those of you who don't follow the court too much:

Typical voting blocks:

Scalia, Thomas, Rehnquist = Conservative
O'Connor, Kennedy = Swing
Breyer, Ginsburg, Stevens, Souter = Liberal

[Jakesta]

O'Connor, Rehnquist, and Thomas.

O'Connor because she is for states rights most of the time. Rehnquist and Thomas because they respect the constitution, and they are not liberal pigs like those who voted for this abomination.

No surprise to me that the Court's socialists authored this ruling.

Scalia wrote a separate affirmation of it, but the 5 pro-Justice Department votes were from the court commies.

That little nerd Ginsburg was the biggest supporter of this law.

[nokona13]

Um, either your response is really mixed up, or you didn't notice that the court actually ruled that the federal government could prosecute people regardless of medical marijuana laws...

[Broken Glass Can]

Just as long as they don't take away my medical heroin. /images/graemlins/grin.gif

[elwoodblues]

While I think banning medical marijuana is stupid, shouldn't it be the legislatures job to overturn the applicable federal law, not the court's. Without knowing many of the details of the case, this seems like a pretty obvious case of federal preemption. I'm not able to see the arguments of the other side (despite the stirring logic of the "pinko commie" reply in this thread.)

[nokona13]

Yeah I didn't quite understand this either. When I read about it back during arguments, it seemed the judges supporting the federal goverment were mostly basing their reasoning on the commerce clause, but these people were indisputably growing their own and not selling to others, so I didn't quite get how the federal goverment's right to regulate interstate commerce could apply here. Anyone?

[TomCollins]

I don't know why I was surprised by who actually made a ruling on this. But it makes a lot more sense. The states rights crowd of course rejected this. There is no interstate commerce here, thus no federal justification for having any authority on the issue.

I did find it ironic that two of the three justices here are probably among the three most hated by the pro-MM crowd.

[Jakesta]

No. I am a liberal, and I think Clarence Thomas is one of the great Supreme Court justices.

[vulturesrow]

[ QUOTE ]
Yeah I didn't quite understand this either. When I read about it back during arguments, it seemed the judges supporting the federal goverment were mostly basing their reasoning on the commerce clause, but these people were indisputably growing their own and not selling to others, so I didn't quite get how the federal goverment's right to regulate interstate commerce could apply here. Anyone?

[/ QUOTE ]

Here is the salient point from the majority opinion:

...have identified three general categories
of regulation in which Congress is authorized to engage
under its commerce power. First, Congress canregulate the channels of interstate commerce. Perez v. United States, 402 U. S. 146, 150 (1971). Second, Congress has authority to regulate and protect the instrumentalities of interstate commerce, and persons or things in interstate commerce. Ibid. Third, Congress has the power to regulate
activities that substantially affect interstate commerce.
Ibid.; NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 37 (1937). Only the third category is implicated in the case at hand.
Our case law firmly establishes Congress’ power to regulate purely local activities that are part of an economic
“class of activities” that have a substantial effect on interstate commerce. See, e.g., Perez, 402 U. S., at 151;Wickard v. Filburn, 317 U. S. 111, 128–129 (1942). As we stated in Wickard, “even if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.” Id., at 125. We have never required Congress to legislate with scientific exactitude. When Congress decides that the “ ‘total incidence’ ” of a practice poses a threat to a national market, it may regulate the entire class. See Perez, 402 U. S., at 154–155 (quoting Westfall v. United States, 274 U. S. 256, 259 (1927) (“[W]hen it is necessary in order to prevent an evil to make the law embrace more than the precise thing to be prevented it may do so”)). In this vein, we have reiterated that when “‘a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence.’” E.g., Lopez, 514 U. S., at 558 (emphasis
deleted) (quoting Maryland v. Wirtz, 392 U. S. 183, 196, n. 27 (1968)).

Obviously the dissenters disagreed with this but I havent gotten all the way through all the opinions yet other than quick skim.

Here is the link to download the PDF:

Gonzales vs. Raich (http://a257.g.akamaitech.net/7/257/2422/06jun20051130/www.supremecourtus.gov/opinions/04pdf/03-1454.pdf)

[nokona13]

That seems pretty weak to me. But then, it's kind of a gray area where basically you can read what you want to into it. Much the way I'm sure rabid anti-abortion types feel about the privacy reasoning in roe.

[Felix_Nietsche]

.......US Constitution has been Utterly Destroyed.

The founders vision of checks and balances between the branches of government (Judicial, Legislative, and Excutive) has been officialy destroyed in this decion. The Judicial Branch is now by FAR the most powerful branch in the US Govt.

The 10th amendment of the US Constitution says
"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."

When created, this amendment was a STEEL LOCK protecting the powers of the individual states and limiting the power of the Federal Govt. After all, the USA had just fought a revolution against Britain who exercised excessive CENTRALIZED power over American Sovereignty and many in the USA were leery of an all powerful central govt. Before the US Constitution, the USA operated under the articles of confederation which made the federal govt VERY, VERY Weak. So weak, that they decided to adjust power of the central govt by giving a little more power to the federal govt. The result of this adjustment was the US Constitution. The 10th Amendment was specifically added by founders to keep the power of the federal govt in check. In theory the 10th amendment should make sure there is ZERO overlap in jurisdiction. The worked for about 100 years. Then the judicial branch used the "interstate commerce clause" of the US Constitution to give that federal govt new powers like how many gallons a toilet may flush.

If you except this premise that the 10th amendment should prevent overlapping jurisdiction between the state and federal govt, can anyway explain to me why selling .001 of an ounce of marijuana WITHIN state boundries is a state crime but selling 100 lbs of marijuana WITHIN state boundries is a FEDERAL crime? The only difference is QUANTITY. If you take this challenge please provide the clause in the constitution that gives the federal govt this power. I don't think you can find a QUANTITY CLAUSE in the US Constitution.

The Answer is: The federal drug laws are UNconstitutional while STATE DRUG LAWSs ARE constitutional. This means is the state penalty for selling 100lbs of MariJane is 5 years and the federal penalty is 20 years. Then the perp should be sentence to five years. Because of the 10th amendment, the federal govt has ZERO jurisdiction. ZERO! NADA!

The judges who voted to uphold the 10th Amendment were:
Clarence Thomas
Renquist
Sandra O'Conner

I am SHOCKED that Scalia did not vote with the minority.
I expected O'Conner to strike down the 10th amendment (after all she voted against political speech 60 days before an election (McCain-Feingold)) but for Scalia to vote this way shocks me. I feel like he stabbed conservatives in the back. Although Clarence Thomas has made unconstitutional decisions before, I'm proud of his vote today. In his ruling he wrote in effect that this decision gives powers to the Federal govt which can abused in untold ways. Kudos to Thomas and a utter disappointment to Scalia. As for the five 'liberal' members of the supreme court they're brain dead anyway so their decision was no surprise.

This is a sad day for the 10th amendment.

[ QUOTE ]
.......US Constitution has been Utterly Destroyed.

The founders vision of checks and balances between the branches of government (Judicial, Legislative, and Excutive) has been officialy destroyed in this decion. The Judicial Branch is now by FAR the most powerful branch in the US Govt.

The 10th amendment of the US Constitution says
"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."

When created, this amendment was a STEEL LOCK protecting the powers of the individual states and limiting the power of the Federal Govt. After all, the USA had just fought a revolution against Britain who exercised excessive CENTRALIZED power over American Sovereignty and many in the USA were leery of an all powerful central govt. Before the US Constitution, the USA operated under the articles of confederation which made the federal govt VERY, VERY Weak. So weak, that they decided to adjust power of the central govt by giving a little more power to the federal govt. The result of this adjustment was the US Constitution. The 10th Amendment was specifically added by founders to keep the power of the federal govt in check. In theory the 10th amendment should make sure there is ZERO overlap in jurisdiction. The worked for about 100 years. Then the judicial branch used the "interstate commerce clause" of the US Constitution to give that federal govt new powers like how many gallons a toilet may flush.

If you except this premise that the 10th amendment should prevent overlapping jurisdiction between the state and federal govt, can anyway explain to me why selling .001 of an ounce of marijuana WITHIN state boundries is a state crime but selling 100 lbs of marijuana WITHIN state boundries is a FEDERAL crime? The only difference is QUANTITY. If you take this challenge please provide the clause in the constitution that gives the federal govt this power. I don't think you can find a QUANTITY CLAUSE in the US Constitution.

The Answer is: The federal drug laws are UNconstitutional while STATE DRUG LAWSs ARE constitutional. This means is the state penalty for selling 100lbs of MariJane is 5 years and the federal penalty is 20 years. Then the perp should be sentence to five years. Because of the 10th amendment, the federal govt has ZERO jurisdiction. ZERO! NADA!

The judges who voted to uphold the 10th Amendment were:
Clarence Thomas
Renquist
Sandra O'Conner

I am SHOCKED that Scalia did not vote with the minority.
I expected O'Conner to strike down the 10th amendment (after all she voted against political speech 60 days before an election (McCain-Feingold)) but for Scalia to vote this way shocks me. I feel like he stabbed conservatives in the back. Although Clarence Thomas has made unconstitutional decisions before, I'm proud of his vote today. In his ruling he wrote in effect that this decision gives powers to the Federal govt which can abused in untold ways. Kudos to Thomas and a utter disappointment to Scalia. As for the five 'liberal' members of the supreme court they're brain dead anyway so their decision was no surprise.

This is a sad day for the 10th amendment.

[/ QUOTE ]

I'm sorry ... but you're nuts. This decision somehow makes the judicial branch "by FAR the most powerful branch of the US Govt"??? Why is your beef with the Supreme Court for upholding a law validly enacted by Congress, AND NOT WITH CONGRESS FOR ENACTING THE STUPID LAW IN THE FIRST PLACE?

[elwoodblues]

[ QUOTE ]
can anyway explain to me why selling .001 of an ounce of marijuana WITHIN state boundries is a state crime but selling 100 lbs of marijuana WITHIN state boundries is a FEDERAL crime

[/ QUOTE ]

Because congress decided it didn't want to waste federal resources prosecuting small amounts.

[ QUOTE ]
If you except this premise that the 10th amendment should prevent overlapping jurisdiction between the state and federal govt

[/ QUOTE ]

That's what the decision seems to stand for. Because the federal government has decided to regulate this commercial activity (which, the court found affects interstate commerce) then the states can't "overrule" valid federal law.

[Felix_Nietsche]

Congress does NOT have the authority to regulate INTRA-state commerce.
If you understood my post, you will know this is based on the 10th amendment. In otherwords, the BURDEN OF PROVING JURISDICTION IS ON THE FEDERAL govt. The federal govt must prove their jurisdiction based on the constitution, otherwise the state govt has the power and the federal govt has ZERO influence in the matter. Three supreme court justices agreed while six disagreed. I guess by your logic, then at LEAST three supreme court justices are nuts. I personal think the number is 6 or 7 but everyone is entitled to their opinion.

Anyway, California Medical Marijuana laws were about marijuana:
1. Grown in California
2. Perscribed in California
3. Used in California

If you bothered to read my post or the constitution, you know the 10th amendment gives states carte blanc power over the federal govt UNLESS the constitution SPECIFIES a power belonging to the federal govt.

Since I'm so 'nuts', I CHALLENGE YOU to show me the clause in the US Constitution that gives the Congress the power to regulate INTRA state activities. Afterall, you don't want me to think you are just talking out your a$$ about a subject you know nothing about. Do you? /images/graemlins/smile.gif

If you want to plagerize Scalia's logic, he argued the INTER-state commerce clause applied to an INTRA-state activity. For a SMART, INFORMED, and EDUCATED person like yourself I'm sure this won't take more than 5 minutes. I'll start the clock now. /images/graemlins/smile.gif

[Felix_Nietsche]

"Because congress decided it didn't want to waste federal resources prosecuting small amounts."
************************************************** *****
So are you conceding that TECHNICALLY, states are violating the 'law of the land' (constitution) by prosecuting petty drug offences since they legally have no jurisdiction?

Consider this, money is spent prosecuting petty drug offences. Does it cost the state govt LESS to prosecute petty drug offences than it would the federal govt? Why does it matter if the money comes from the federal govt rather that the state govt?


"Because the federal government has decided to regulate this commercial activity (which, the court found affects interstate commerce) then the states can't "overrule" valid federal law."
************************************************** *********
Forget what the court says. I want to see how YOU THINK. How does marijauna:
1. Grown in California
2. Perscribed in California
3. Used in California

......trigger the inter-state commerce clause?
I'm serious. Can *YOU* make a logical argument how these INTRA-state activities trigger the INTER-state commerce clause? 3 supreme court justices are saying you can not.

Again, I REALLY want to hear *YOU* make an argument how the INTER-state commerce clause applies....

[elwoodblues]

Frankly in our current economy almost any commercial activity affect interstate commerce. Note that the Constitution doesn't require a substantial affect on interstate commerce. Further, while a particular transaction might not affect interstate commerce, the sale of drugs (in general) affects interstate commerce. Thus, the federal government has the constitutional authority to regulate the activity.

Further, it doesn't take too much imagination to envision a scenario where a foreign (out-of-state) individual sees a california doctor and is prescribed marijuana. It doesn't take too much imagination to envision a California resident travelling between states with their prescription marijuana.

[ QUOTE ]
So are you conceding that TECHNICALLY, states are violating the 'law of the land' (constitution) by prosecuting petty drug offences since they legally have no jurisdiction?

[/ QUOTE ]

No. The states also have jurisdiction under their general police powers so long as they don't create laws that are counter to the federal law.

[natedogg]

From the dissent: If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything--and the Federal Government is no longer one of limited and enumerated powers.

Freedom in the USA is at the point of being little more than a quaint notion. Anyone who thinks any of our "liberal" leaders are actually in favor of liberty is highly confused. You should have to look no further than the authoritarian leftists on the court. Our liberty is under assault by all sides.

natedogg

[ QUOTE ]
Congress does NOT have the authority to regulate INTRA-state commerce.
If you understood my post, you will know this is based on the 10th amendment. In otherwords, the BURDEN OF PROVING JURISDICTION IS ON THE FEDERAL govt. The federal govt must prove their jurisdiction based on the constitution, otherwise the state govt has the power and the federal govt has ZERO influence in the matter. Three supreme court justices agreed while six disagreed. I guess by your logic, then at LEAST three supreme court justices are nuts. I personal think the number is 6 or 7 but everyone is entitled to their opinion.

Anyway, California Medical Marijuana laws were about marijuana:
1. Grown in California
2. Perscribed in California
3. Used in California

If you bothered to read my post or the constitution, you know the 10th amendment gives states carte blanc power over the federal govt UNLESS the constitution SPECIFIES a power belonging to the federal govt.

Since I'm so 'nuts', I CHALLENGE YOU to show me the clause in the US Constitution that gives the Congress the power to regulate INTRA state activities. Afterall, you don't want me to think you are just talking out your a$$ about a subject you know nothing about. Do you? /images/graemlins/smile.gif

If you want to plagerize Scalia's logic, he argued the INTER-state commerce clause applied to an INTRA-state activity. For a SMART, INFORMED, and EDUCATED person like yourself I'm sure this won't take more than 5 minutes. I'll start the clock now. /images/graemlins/smile.gif

[/ QUOTE ]

Man, I read your posts, and you're like the Yogi Berra of the Politics forum. "Carte blanc"? God bless you. Keep up the good work.

Read my response, Hemmingway. I'm not arguing whether the decision is right or wrong. I am curious why you are attacking the Supreme Court so vehemently yet you give Congress -- the outfit which enacted the law that you claim oversteps constitutional bounds -- a free pass.

[fluxrad]

[ QUOTE ]
From the dissent: If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything--and the Federal Government is no longer one of limited and enumerated powers.

Freedom in the USA is at the point of being little more than a quaint notion. Anyone who thinks any of our "liberal" leaders are actually in favor of liberty is highly confused. You should have to look no further than the authoritarian leftists on the court. Our liberty is under assault by all sides.

natedogg

[/ QUOTE ]

HOLY [censored]!

I actually agree with natedogg. Seriously, someone take a screen capture for posterity.

The reason no one blames the federal legislature for this attempted usurpation of powers is because thats what power wants...more power. I blame SCOTUS because they, in this instance, have failed to do what they are charged with in the constitution; that is to say they have failed to uphold amendments 9 and 10.

[Jakesta]

You do realize that if you stand up for amendments 9 and 10, that you must also be opposed to all of the socialist programs at the federal level(like Social Security, Medicare, and WIC), in order to be consistent.

[fluxrad]

[ QUOTE ]
You do realize that if you stand up for amendments 9 and 10, that you must also be opposed to all of the socialist programs at the federal level(like Social Security, Medicare, and WIC), in order to be consistent.

[/ QUOTE ]

WTF are you talking about?

Article I, Secion 8.

[Jakesta]

[ QUOTE ]
[ QUOTE ]
You do realize that if you stand up for amendments 9 and 10, that you must also be opposed to all of the socialist programs at the federal level(like Social Security, Medicare, and WIC), in order to be consistent.

[/ QUOTE ]

WTF are you talking about?

Article I, Secion 8.

[/ QUOTE ]

Now you sound like a Libertarian. Only things that are enumerated in A1,S8 are constitutional, blah blah blah. Except you don't think this way, because I've read your other posts in the politics forum and you are a liberal.

[fluxrad]

Read the last 5 posts in order.

Seriously, Dead. You've completely strayed from the fucking herd.

[Cyrus]

It'll help ya relax.

[BadBoyBenny]

The Supreme Court was pretty much sticking to precedent on this one, and I don't see why this should be surprising to most people.

See Wickard v. Filburn and to a lesser extent Gibbens V. Ogden. I think most justices didn't see a reason to change the longstanding tradition of a broad interpretation of the commerce clause.

I am sort of with you in thinking that this is not what the framers really wanted, and the logical arguements are weak, but I don't think the could have ruled for the states in this one without overturning Wickard. It may be beneficial for people on both sides (myself included) to read some of the arguements from that case and figure out how the heck they sided against the farmer.

To the OP…

We know Kennedy was in the majority and O’Connor was in the minority since that’s who wrote the opinion and dissent.

[vulturesrow]

Piece on this issue by NRO's Johnathan Adler.

Federalism, Up in Smoke? (http://www.nationalreview.com/adler/adler200506070921.asp)

...Raich prevailed in the U.S. Court of Appeals for the Ninth Circuit. The Supreme Court ruled against her Monday, however, and upheld federal bans of marijuana possession and cultivation for personal medicinal use. In a majority opinion authored by Justice John Paul Stevens, and joined by Justices Souter, Ginsburg, Kennedy, and Breyer, the Court held that the Constitution’s “commerce clause” authorizes federal regulation of such conduct under the Controlled Substances Act (CSA). Justice Antonin Scalia also concurred in the result. Only Justices O’Connor, Thomas, and Chief Justice Rehnquist dissented. Few expected the Court to rule differently. The question now is whether Gonzales v. Raich means the federalism doctrine of enumerated powers has gone up in smoke.

[kt421]

Agreed. This decision was a foregone conclusion. The precedent is fairly solid and the Commerce Clause very widely interpreted.

As a cannabis activist, I'm disappointed in the ruling because a victory would have been huge. On the other hand, one's disgust with the idea of prosecuting critically and chronically ill Americans because they use a safe and effective medicine should be reserved for Congress and the Bush administration. In that vein, Congress will soon vote on an amendment which would bar the federal government from spending money prosecuting legal medpot users. Lobby to get this passed and tell your elected representative to stop wasting your tax money going after sick people.

What I find appalling is the hysteria and misinformation propogated by the Drug Czar and Drug Free America fools - even in victory they manage to be repulsive. Walters says the decision shows that smoked cannabis is not medicine, ignoring wholly that 7 Americans still get pre-rolled joints from the US government for medical use, that Canada has some 800 legal medical pot users and that Holland is handing out the "crude plant" in pharmacies. That they need to keep lying, even in victory, says a lot about the shallowness of their stance.

[lehighguy]

O M F G

I'm buying my own pacific island if I get rich enough. [censored] this [censored].

[lehighguy]

The issue at hand is the congress SHOULDN'T have been able to enact the stupid law in the first place.

[Felix_Nietsche]

.....Over INTRA-State Commerce (medical marijuana grown in Cali, prescribed in Cali, and used in Cali).

The Govenor of California needs to arrest federal law enoforcement agents who 'arrest medical marijuana users. All the charges would be charges under the laws of the STATE OF CALIFORNIA. The charges could include:
1. Armed Kidnapping
2. Illegal detainment
3. Theft (of the doctor prescribe weed)
4. Battery (if the victim is forcefully 'arrested')
This should be good for 15-30 years in a California state prison. Put a few federal agents in California State prisons and Federal agents won't be so gung ho to arrest medical marijuana users.

The 10th amendment of the Constitution clearly gives STATES the sovereignty over INTRA-state commerce. The legislatures of the states can not sit by with their hat-in-hand saying. 'Please federal govt, lets us have our rights under the US Constitution, pretty please'. You don't beg people for your rights, you take them...

Of course if marijuana crosses state lines then the federal govt could claim jurisdiction. Then the INTER-State commerce clause could be legally invoked.

[QuadsOverQuads]

And here we have the real (political) motivation underlying this particular decision (which also explains the way the specific justices came down on the question) : the Activist Right hates the federal authority that arises under the Commerce Clause. They hate it SPECIFICALLY because it allows for federal-level labor regulation. The Activist Right intends to gut that authority, via radically activist SCOTUS rulings (THIS is what they are after with their next SCOTUS appointee -- Roe v. Wade is little more than a means for keeping the useful idiots of the Religious Right in line while the real damage to the Constitution is done elsewhere).

Bottom line: they're already setting up their line of attack on Commerce Clause authority, and this case is just another example of that larger game-plan. It isn't the first case in this line, and it won't be the last. By the time it's done (if the wingnuts get their way), you can kiss federal labor standards goodbye. That is their intent and their ultimate goal, plain and simple. The point being, to truly understand why the so-called "conservatives" ruled as they did on this case, you need to keep this broader context in mind.


q/q

[JackWhite]

[ QUOTE ]
The point being, to truly understand why the so-called "conservatives" ruled as they did on this case, you need to keep this broader context in mind.


[/ QUOTE ]

Sure..could be this massive plot..or maybe people like Clarence Thomas actually believe in what the Constitution says. Maybe he has this crazy notion that Interstate Commerce actually means commence taking place between people in difference states. That radical.

[elwoodblues]

[ QUOTE ]
or maybe people like Clarence Thomas actually believe in what the Constitution says. Maybe he has this crazy notion that Interstate Commerce actually means commence taking place between people in difference states. That radical.

[/ QUOTE ]

Or maybe that left wing radical Antonin Scalia was right when he essentially said that because regulating drug sales is generally a permissible activity under the Commerce Clause, that regulation of activities that fall within that category that are intrastate activities are proper due to the necessary and proper clause.

[vulturesrow]

[ QUOTE ]
[ QUOTE ]
or maybe people like Clarence Thomas actually believe in what the Constitution says. Maybe he has this crazy notion that Interstate Commerce actually means commence taking place between people in difference states. That radical.

[/ QUOTE ]

Or maybe that left wing radical Antonin Scalia was right when he essentially said that because regulating drug sales is generally a permissible activity under the Commerce Clause, that regulation of activities that fall within that category that are intrastate activities are proper due to the necessary and proper clause.

[/ QUOTE ]

Elwood,

Just curious, given your background in law, whether you agree with my assertion that this decision was essentially a a "conservative" one in that the Court elected to uphold precedent?

[elwoodblues]

[ QUOTE ]
Just curious, given your background in law, whether you agree with my assertion that this decision was essentially a a "conservative" one in that the Court elected to uphold precedent?

[/ QUOTE ]

Adherence to precedent isn't a liberal or conservative position (in my opinion.) Liberals want to adhere to precedent when they like the precedent and overrule precedent when they don't. The same is true of conservatives.

Ask conservatives if they want to overrule Roe v. Wade and I highly doubt you'll hear much in the way of "we should keep it because it has precedential value."

[vulturesrow]

[ QUOTE ]
Adherence to precedent isn't a liberal or conservative position (in my opinion.) Liberals want to adhere to precedent when they like the precedent and overrule precedent when they don't. The same is true of conservatives.

[/ QUOTE ]

Understood. I actually agree with that more or less.

However I noticed that you mentioned Scalia concurring opinion and this is one I find most interesting. Some conservatives have portrayed Scalia as some sort of a traitor for his concurring decision but I think he was pretty true to what I understand his particular form of legal thinking. Would you say this was just an expression of the form of jurisprudence that Scalia believes in or does it mirror "conservative" political thinking?


[ QUOTE ]
Ask conservatives if they want to overrule Roe v. Wade and I highly doubt you'll hear much in the way of "we should keep it because it has precedential value."

[/ QUOTE ]

I think Scalia has said on this point that abortion should a legislative decision and that the Court has no business deciding what the law of the land should be regarding abortion.

[JackWhite]

Here is an interesting George Will article from this week on the question at hand: what is a conservative or liberal decision or judge.

http://jewishworldreview.com/cols/will1.asp

[MMMMMM]

Elwood,

From just my layman's take, it does strike me as quite strange that the Commerce Clause should have been interpreted so broadly (not in this case, but originally).

Care to shed any light on that?

And do you agree that the interpretation of the Commerce Clause should have been so very broad (again, initially or originally)? And what about its seeming conflict with that Amendment which delegates respective powers? Why should a clause to carry more weight than an Amendment?

[vulturesrow]

[ QUOTE ]
Here is an interesting George Will article from this week on the question at hand: what is a conservative or liberal decision or judge.

http://jewishworldreview.com/cols/will1.asp


[/ QUOTE ]

Jack,

See my post about SCOTUS decision was the conservative one. No one responded. I linked that piece and a piece by Buckley. Also, a few weeks ago Will hit this particular theme in a piece about the decision on the restriction of shipping win across states. I do enjoy reading Will's columns.

[elwoodblues]

[ QUOTE ]
it does strike me as quite strange that the Commerce Clause should have been interpreted so broadly

[/ QUOTE ]

My take on it is that if the framers wanted Congress to have the authority to only regulate those activities that, for example, substantially affected interstate commerce, they should have said so.

I would say that I'm a little surprised that the language "among the several states" took the meaning that it did.

[ QUOTE ]
And do you agree that the interpretation of the Commerce Clause should have been so very broad

[/ QUOTE ]

Yeah, I do. Again, the langauge (assuming "among the several states" doesn't mean commerce where two states are actually the parties to the transactions) is broad. Those who want to limit the Interstate Commerce to just commerce that "substantially affects" interstate commerce are calling for just as much of a loose interpretation of the Constitution as those they criticize.





[ QUOTE ]
And what about its seeming conflict with that Amendment which delegates respective powers? Why should a clause to carry more weight than an Amendment?

[/ QUOTE ]

I'm not 100% certain about which Amendment you are referring to. My guess is you are referring to the 10th Amendment. Generally speaking, where two provisions appear to conflict (and I personnaly don't believe that they do here) the one which should prevail is the more specific one (as it would be logical to then read the more specific as an exception to the general rule.) The 10th Amendment is a general standard and the Commerce Clause is a specific one...therefore, I would err on the side of the Commerce Clause.

[Ray Zee]

forget legality and think sensibility. if your doctor can prescribe morphine for you why cant he prescibe pot.
the law makers and courts have gotten out of hand in regulating everyday events in our lives that is none of their business.

[elwoodblues]

No question about it...dumb law. But the fact of the matter is, thecase wasn't at all about whether the federal government SHOULD regulate drugs, it was about whether they COULD. For what it's worth, Congress could ban prescription Morphine if they wanted to as well.