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Interesting decision by the Supreme Court on medical marijuana.

In short, the liberal wing of the court stuck with the notion that the feds can trump state laws and regulations on certain matters -- a stance that has allowed it to intervene in issues like civil rights, labor rights, and the environment.

Scalia and Kennedy, two supposed state-righters, joined the majority. Kennedy can be a bit erratic on such issues, so I'm not sure what was up with him. But Scalia? Is this decision any more evidence that he's a partisan hack with no respect for legal reasoning?  

I have far more respect for Rehnquist, Thomas, and O'Connor, who held true to form despite opining on an issue that is anathema to conservatives (drugs).

In fact, I would venture to say that Thomas is perhaps the most consistent member of the court. I could say with 99.9 percent certainty how he will vote on most issues. Just interpret the Constitution literally.  

As for the substance of the decision, it doesn't matter much. The Court said that states had no obligation to enforce federal laws, and the DEA isn't going to go around and arrest cancer patients growing weed in their homes. They don't have the manpower to do so, nor the will to generate that much bad publicity. It's a sort of "don't ask, don't tell" arrangement.

But the most interesting part of the decision, by far, is the Scalia vote. He's a partisan hack who lets his personal views on issues cloud his legal reasoning. He is a states righter one day, then demand federal supremacy the next. All depending on which is the best vehicle to promote his agenda. Just like the GOP at large. The fact that Bush would consider him for Chief Justice is probably apt.

Update: Meteor Blades links to this site listing DEA arrests of patients using marijuana for medicinal purposes. So it looks like contrary to public declarations, they ARE going after some of these people.

Originally posted to Daily Kos on Tue Jun 07, 2005 at 10:51 PM PDT.

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Comment Preferences

    •  Your comment was posted apparently before (none)
      the update. In the context of a rational administration with an ounce of humanity, this might not have been such a devastating decision, but as others have noted the Feds already have targeted chronically ill and seriously injured people who don't respond to traditional painkillers (or don't wish to take them, given the dangers of addiction and even death...most painkillers are opiate based or opiate like synthetics) for prosecution (even those with well under 50 plants), and you can be sure the numbers will increase. As Andrew Sullivan puts it, if there was ever a reason for civil disobedience, it is the health and well being of one's person. Every decent American with a modicum of compassion should be outraged at the prospect of prosecuting sick, injured, and dying people for seeking pain relief, and be actively working to change the law at the federal level.

      "'Cause it's getting kind of quiet in my city's head / Takes a teen age riot to get me out of bed right now" Sonic Youth

      by spot on Wed Jun 08, 2005 at 01:42:34 PM PDT

      [ Parent ]

  •  The Coming Commerce Clause Conflict (4.00)
    I agree completely on the Scalia hackery.

    But much more important in minority's dissent is yet another taste of the how a Bush Court will use a much narrower reading of the Commerce Clause to undermine federal regulatory power.

    For more on this, see:

    "Sharpening Their Clause: The Coming Bush Judges"

  •  Rehnquist, O'Connor and Thomas (4.00)
    All had a problem with states' rights in Bush v. Gore.

    "Over time your quickness with a cocky rejoinder must have gotten you many punches in the face." --Al Swearengen

    by RepublicanTaliban on Tue Jun 07, 2005 at 10:54:24 PM PDT

  •  RIP Bill of Rights (4.00)
    The Fourth Amendment has been pretty much toast since the War on Drugs trumped it, while the War on Terra seems to have shredded the other nine.

    So is this a Drug War ruling or a Terra War ruling?
    And Scalia is a big hack.  Bush v Gore as Fourteenth Amendment.  Feh!

    Chaos, fear, dread. My work here is done.

    by madhaus on Tue Jun 07, 2005 at 10:57:48 PM PDT

  •  This case (none)
    really revealed what a hack Scalia really is, as you said.  That man is scum, any way you evalutate him, and a disgrace.
  •  Umm... (4.00)
    "and the DEA isn't going to go around and arrest cancer patients growing weed in their homes. They don't have the manpower to do so, nor the will to generate that much bad publicity. It's a sort of "don't ask, don't tell" arrangement."

    Uh Kos, not to depress you or anything, but

    Sorry to bring around a cloud.  remember, these is the same administration that arrested Tommy Chong while Eric Robert Rudolph was on the loose....

    Florida Democrats: Learn how to WIN at the polls!

    by JR on Tue Jun 07, 2005 at 10:57:52 PM PDT

    •  Selective application (none)

      Annoy the establishment by say, marching in a protest against the Iraw war or appearing on a talk show to highlist Bush's ridiculous position on stem cells or writing your congressperson to inform them your transport unit in Iraq doesn't have working vehicles and see if the DEA come calling.

      Perform a perfectly legal act under California law that contravenes the federal anti-drug laws and you are saying to the government that they can choose to put you in prison for years at their whim.  

      Laws should be either enforced or stricken from the books.  

      •  "Place your hands behind your head!!!" (none)
        Linn Co., OREGON - Leroy Stubblefield, a quadriplegic, and two other patients are robbed of a 12-plant caregiver garden, legally registered under state law, by DEA on Sept. 23, 2002. They plan to sue the federal government.
        What's a pre-raid briefing like for the D.E.A. in something like this?
  •  I was fascinated... (none)
    by the dissenting Justices.  Thomas, O'Connor and Rehnquist??

    I don't know if Rehnquist "saw the light" after undergoing cancer treatment; perhaps he has.

    O'Connor always struck me as much more conservative on issues such as these (cultural, i.e. War on Drugs).

    The one I truly can't figure out is Thomas's.  He's seemed to be in bed with the righties more than anyone; I'd love to know what "Focus on the Family" has to be thinking of his vote...

    YEE-HAW is not a foreign policy.

    by molls on Tue Jun 07, 2005 at 10:58:25 PM PDT

    •  He's an absolutist (4.00)
      He wants the states to run everything except what the Constitution gives to the Feds (copyright, national defense, etc.).

      The Constitution doesn't give the feds power to regulate narcotics, hence it's the states' call.

      He's consistent to a fault.

      •  Quite true... (none)
        I guess I have to give him some credit for sticking to what he believes in.  

        But he's still a strange one to me; out of all the justices, what made him such a stickler for "states' rights"?  I must admit I don't know his biography at all; could be quite interesting.

        What do you make of O'Connor's ruling?  Another one I attributed to being part of the 'conservative gang'...

        YEE-HAW is not a foreign policy.

        by molls on Wed Jun 08, 2005 at 12:14:31 AM PDT

        [ Parent ]

        •  OConner (none)
          OConner and Rehnquist aren't surprising if you look back at the precedent at issue in the case.  Rehnquist authored the majority opinion in two landmark Commerce Clause cases that restricted federal authority, one striking down a gun possession statute and the other striking down part of the Violence Against Women Act.  OConner and Rehnquist were just applying those precedents.  Under the logic of those cases, at the least the Court should have held that regulating simple marijuana possession was outside federal commerce power.    

          As for their policy preferences, at the end of her dissent OConner had a brief section in which she said that she would not have voted for the medical marijuana initiative if she had been a California citizen but that a Justice's policy preferences should not dictate the limits of federalism.  Interestingly, Thomas and Rehnquist did not join that brief section of OConner's dissent.  It could mean either that they felt it was inappropriate to state how they would have voted on the initiative  or that they are supportive of medical marijuana as a policy matter.  The Crime and Federalism blog has a good post on this.

    •  Thomas (none)
      has been pretty consistent throughout his time on the Court with respect to his intepretation of the Commerce Clause.  His concurrence in the Arizona gun case comes to mind -- though I can neither remember the facts of the case nor the specifics of his "opinion".  

      I thought a lot of the "New Federalism" that we had been seeing from the Court since about 1990 was in anticipation of cutting back on the Federales authority in the 'war on drugs' -- I seem to have been wrong.  Unfortunately, others will pay the price.

      •  I do have to give him credit... (none)
        on the Commerce Clause part of the argument.  If a 'product' is not crossing state lines, it's a pretty good indication that said 'product' is not for mass distribution, but rather for personal use.  

        It seems like most of the neo-cons want to reject any law or line of reasoning unless it matches with their 'moral ethics'; I guess I assumed that the conservatives on the bench would follow suit in all cases.  That's why I was pretty confused when I saw who wrote the dissenting opinion on this case.

        And I'm completely with you on your hopes that we might have been seeing an eventual sign of sanity in regards to the 'war on drugs'.  I had been hoping that this 'war' had finally run its course - but the modern day 'Bush Moral Police' must have too much vested in it...

        YEE-HAW is not a foreign policy.

        by molls on Wed Jun 08, 2005 at 12:01:38 AM PDT

        [ Parent ]

  •  Legally logical reasoning (none)
    has been tossed to the wind by the Surpreme Court. It's now all about political alignment. Forget about seeing any decisions that make sense or include the words tolerance, compassion and justice.

    The Supreme Court will be guided by one principle. That principle is the support for the coporate controlled fasisct state America is heading towards. Justice be damned, Full Speed Ahead!

    "We drew the line in the sand, and like the fools they are, they stepped into the abyss." HMSJO

    by hmsjo on Tue Jun 07, 2005 at 11:05:59 PM PDT

  •  States' Rights (none)
    In the Beautiful New World it means that we believe in local control, especially for the following:
    ..Allowing only the right people to attend Republican events in our Red and Blue States
    ..For all the others, we'll provide them Free Speech Zones to do their constitutionally protected whining.
    ..Local and State governments should leave us to be free, except in our bedrooms, our libraries, our science labs, our doctor's office, and on our deathbeds.
    We are the true conservatives. Let Barry Goldwater spin in his grave. He was just so 1960's!

    "Everything that rises must converge"

    by jpgod on Tue Jun 07, 2005 at 11:09:53 PM PDT

  •  From the perspective of a cancer survivor (4.00)
    This might be off the subject here because you are all discussing the legal issues. But I take the decision very personally.

    I had high-dose chemo and terrible nausea and vomiting. None of the anti-nausea medications made a dent in my symptoms. One inhibited my ability to yawn, which doesn't sound awful, but it actually is quite distressing. The others gave me terrible nightmares. I asked my doctor, an eminent oncologist here in NYC, about Marinol (the legal pill), but he said it wouldn't do anything for me, that the "real thing" was what I needed. Luckily, I had recovered before I had to light up. But I would have if necessary.

    Anyone who has been in my position knows this decision is a real tragedy. To continue to criminalize something that can give people some peace.... shows what an inhuman, irrational, and anti-scientific society America has become.

    •  Then and now. (none)
      One of my dad's friends had cancer twice.  Once was before medical marijuana became a big deal and legalization was on people's minds and once was after.  Before there was a legalization movement, and an anti-legalization movement, he could light up in the hospital if he needed to.  They had a smoking room he could use.  The second time around, everyone would still admit that marijuana was what would help his nausea, but he couldn't smoke in the hospital.  

      I still think a legalization movement is good and necessary, but there is a one step forward, two steps back aspect to it.  

    •  yeah (none)
      it's a tough decision. had the conservative majority been consistent with its "states rights" mantra, the states would've gotten final say on drug laws. But the liberals couldn't do so without potentially endangering federal oversight on civil rights and myriad other issues.

      The liberals were consistent, only three of the conservatives followed suit.

      The Supremes punted to Congress. I wonder if pressure will be built at that level.

      •  don't know about the civil rights thing... (none)
        Although the civil rights cases did involve the Commerce power, I don't think a holding for Raich would have endangered them.  The central reason is that the civil rights cases involved regulation of businesses and the current Commerce Clause jurisprudence only restricts the regulation of noncommercial activity.  The dissent's view would have held that patients who grew their own marijuana (or for others at no charge) are outside the reach of the commerce power.  This would not have had any impact on the federal government's ability to regulate business or any commercial activity (ie, growing medical marijuana as a business, or requiring hotels with more than 5 or 10 rooms not to discriminate on the basis of race [which is, if memory serves, what the law at issue in the main civil rights Commerce Clause case did.])

        I think that, in general, a slightly constricted commerce power would probably be more good than bad for progressive issues.  The only two areas of potential concern, I think, would be environmental and endangered species regs.  But, even there, I don't think commerce power limits would have that big an impact.  Most (if not all) environmental regs deal with environmental concerns incidental to a business, which could still be regulated.  The federal government might not be able to, for example, mandate that every individual recycle their newspaper but any environmental requirement on business would be valid.  Endangered species regs. would be more likely to be impacted, since it would be unlikely that the government could stop, for example, an individual from killing an endangered species on his own property unless it was for monetary gain.  Still, the government surely could place strict penalties on the sale of an endangered species, the killing of an endangered animal for sale, etc. etc. which, as a practical matter, would still allow for strong regulation against the killing of an endangered animal.  Shameless plug: I've written a law review article that discusses some of these issues (though in legal rather than policy terms).

        So, while Kos is right to be concerned, I think that a real restriction against federal regulation of noncommercial activity (which is what Lopez and Morrison purported to create and what the Raich dissent argued for) would most likely be a good thing for progressives.

        •  I agree (none)
          I think liberal should embrace federalism. A restriction of the Commerce Clause to not reach non-commercial activities like the ones in Raich is very important to protecting many rights. The commerce power if too broad can be used for both good and bad policies. Many New Deal and civil rights policies are very good and important policies and legitimately deal with economic regulation. The law rejected in LOPEZ and unfortunatly upheld in RAICH are not economic regulations but federal police power. The federal government does not have a general police power under the constituion only specific enumerated powers. RAICH upholds that police power under the commerce clause which I believe is very dangerous. It opens the way for a federal police state that Bush and the christian right want to create to enforce their "values" on everyone.
          If Roe v. Wade was overturned a federal law banning abortion could be upheld under the current commerce clause jurisprudence, whereas if the court scrutinized non economic regulation by the federal government then a federal law banning abortion would be unconstitutional.
          This is why liberals need to rethink this knee jerk belief that unlimited federal power in good. This belief is not consitent with a free society or the Jeffersonian traditions of the Democratic Party.
      •  one other thought... (none)
        On whether support for reform might be built at the Congressional level, I don't remember if someone already posted this but there is a bi-partisan proposal for medical marijuana reform in Congress right now.  It's been voted on before and I think has received around 150 or 160 votes in the House.  It may get a few more this time, but I think that the only way to really get change on this issue is to run ads in one or two districts of congresspersons who vote against medical marijuana.  80% of the public supports medical marijuana, but most members of congress are still worried that if they vote for it, they'll be attacked as tough on crime.  They need to be convinced that if they vote against medical marijuana, they will be attacked for wanting to throw sick people in prison and that the attacks will cost them votes.
    •  if the drug companies could grow it... (4.00)
      and sell it to us at a high price it would probably be legal!  Think about it... they don't want you to grow and use something that would stop you from buying their high priced drugs.
  •  hrm (none)
    didn't scalia split with thomas and rehnquist for the wine sales decision, too?

    he said something about how his rules are normally that he sticks with state over federal, with the exception of the commerce clause.  I think.  I have a dim memory, and I'm not a lawyer.

    But his reasoning might be consistent if its similar to his reasoning with the wine sales.

    Politology.US - Politics and Technology in the United States

    by tunesmith on Tue Jun 07, 2005 at 11:24:55 PM PDT

    •  that one was a bit different though (none)
      Alchol has some bizarre exceptions, which explains why Thomas was on the side he was there.  One (unclear) exception is that the Constitution specifically delegates additional powers to the states dealing with alcohol regulation that it doesn't delegate with other commercial items, although it does so in a vague way.

      The 21st amendment, in addition to just repealing Prohibition, included a second section: The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

      There are two schools of thought on that clause.  One reads it as saying that if a state has laws banning alcohol, it's illegal to import or possess alcohol into that state—but that this is the only power that's given.  Another reads it as saying that a state can enact any laws at all relating to alcohol, and any importation that violates those laws can be prohibited; basically, the Amendment delegates to the States a specific power to regulate interstate commerce of alcohol destined for delivery into their states.  Thomas reads this as the latter, and since this is an amendment to the Constitution, it trumps the Commerce Clause in this specific area.

      An additional complication, which I don't have the details for offhand, is that Congress arguably passed some laws in the early 20th century delegating to states the authority to control importation into their states of alcohol, although they too are unclear.  This would make states regulating interstate commerce in that case legal, because the federal government would've delegated it to the states, which is its prerogative.

      "See a world of tanks, ruled by a world of banks." —Sol Invictus

      by Delirium on Tue Jun 07, 2005 at 11:57:57 PM PDT

      [ Parent ]

      •  Alcohol Homebrewing (4.00)
        IMO the only reason why it's legal to brew your own beer is because it's such a hassle that hardly anyone (relatively speaking) does it.

        Marijuana, on the other hand, grows so easily (so I hear...) that anyone can have a successful windowsill garden.  And they would.

        Rate posts as you go: "Rate All" at the end of the page.

        by winstnsmth on Wed Jun 08, 2005 at 03:36:08 AM PDT

        [ Parent ]

        •  wrong (none)
          having both brewed beer, and grown marijuana, (so long ago the Statute of Limitations has expired twice : )   ) the effort involved is roughly equal. distilled liquor is somewhat more difficult.

          Now indoor marijuana is a significantly greater effort and expense.

          I am not currently Licensed to Practice in this State. Or Yours.

          by ben masel on Wed Jun 08, 2005 at 11:14:03 AM PDT

          [ Parent ]

  •  I find the comments of the court interesting - (4.00)
    Don't remember the exact words, but what they said was if we really wanted some changes, what we needed to do was get rid of the 1970 act that outlawed marijuana.  It sounds like they're tired of this coming back again and again and really want the government to go ahead and make it legal, or make it completely illegal - no gray areas.

    I don't give them hell. I just tell the truth and the Republicans think it's hell. - Harry S. Truman

    by Jensequitur on Tue Jun 07, 2005 at 11:28:58 PM PDT

  •  the law is only the law if enforced (none)
    is as much as the courts said.  I don't like when I read Clarence Thomas and agree with him.  Too lazy to find the quotes, but he talked about how this had nothing to do w/ interstate or commerce since nothiing was going interstate, and since people were growing their own, no one was doing any commerce.

    Could be wrong about him saying that (pretty sure I read that).  Either way, that statement makes sense to me.

    SoapBlox - a new blog community
    Site #2 Launched: SoapBlox Chicago

    by pacified on Tue Jun 07, 2005 at 11:30:20 PM PDT

    •  he said it, all right... (none)
      Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. 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.
  •  Bullshit. The DEA has been ... (4.00)
    ...arresting medical marijuana users regularly since state laws went into effect.

    As noted two years ago here

    Over 40 medical marijuana patients and growers have been arrested or raided by DEA since Sept. 11, 2001, despite statements by DEA officials that medical marijuana is "not a priority." There are now more federal prisoners for medical marijuana than terrorism in California.

    And here's a whole list of DEA medical marijuana raids from 2001 to 2005.

    So, whatever this case shows about the consistency or the hypocrisy of the Supreme Court justices, let's not assume it doesn't really matter because,  unlike sodomy laws which mostly weren't enforced  before the Supreme Court overturned them all in Lawrence and Garner v. Texas, people ARE being busted for smoking pot to kill their pain and nausea.

    Medical marijuana, of course, is a teensy portion of this nation's moronic War on Some Drugs. In 2003, 662,886 Americans were arrested by local, state and federal officials for possession of pot.
    More than half our total law enforcement budget goes to the WoSD. The courts are clogged with these cases.



    Writing dialog George Lucas so terrible at is. --Yoda

    Visit The Next Hurrah

    by Meteor Blades on Tue Jun 07, 2005 at 11:31:29 PM PDT

    •  Thanks for the info and context. (none)
      But argh, I say, to the war on drugs (sorry, you're right, War on Some Drugs) and to all the ways basic citizenship is stripped from people who've been caught up in it.  

      Not sure how, but 3 lines into this comment, before I'd scrolled down to see who posted it, I knew it was you.

      And nice signature line - did you read the New Yorker review where, talkinga bout Yoda's syntax, Anthony Lane says "Break me a fucking give."  The whole review is hilarious.

    •  Most of those cases are for huge amounts of plants (none)
      And I highly doubt were being grown exclusively for medicinal purposes. Some seem like sophisticated growing and distribution operations that maintained a link with a cannabis club for legal cover.

      The thing about the case that the Supreme's just judged on was that it was only 6 plants being grown for personal use. There really wasn't any question about it. Yes, they got raided too and so did others on that list with very small numbers of plants. But it looks like all those charges were dropped eventually.

      I know a thing or two about growing marijuana and 100 plants yield a HUGE amount. More than a person could possibly smoke in a few months, which is how long it takes to complete another planting cycle.

      I'm totally for marijuana prohibition to be ended. But in terms of strategy for the medical marijuana community going forward in light of this decision, folks who need the medicine should be set-up with small growing operations in their homes that can provide a satisfactory amount. 3-6 plants should be plenty and the risk of raid is very low and the risk of prosecution even lower.

    •  Not to alarm, but (none)
      the US Attorney for Hawaii sure sounds locked and loaded in this piece today.
  •  Not so simple (4.00)
    Thge Raich Attorneys did not ask the Court to go back to Lochner, rather they asked that they go with the plurality holding in Wickard.

    In that case, 4 Justices had held that Wickard was engaging in Interstate commerce by feeding over quota wheat to his family, but one, that Federal jurisdiction came only because the hogs who were also eating the wheat were destined for sale.

    Raich sought to grow marijuana only for her own medical use, so the Court had, but declined, a choice to split that hair without a substantial shrinkage of the scope of the Commerce Clause.

    I am not currently Licensed to Practice in this State. Or Yours.

    by ben masel on Tue Jun 07, 2005 at 11:34:33 PM PDT

  •  terribly disappointed in (none)
    the court's "liberal" justices.

    There is nothing liberal about their ruling.

    And opting to support the right of the Federal government to enforce a law that takes people's rights away?

    How is that consistent with "life, liberty, and the pursuit of happiness?"

    Yes, Federal rights could trump those of the States if the States were taking people's rights away.  It would be right to enforce Federal civil rights legislation in the States, because this gives people more rights.

    Isn't that what being liberal is supposed to be all about--giving people more liberty?

    •  well, you can't just make things up (none)
      Being judges, they have to rule on some Constitutional principle, not just what they'd like to see happen.

      The only way Civil Rights legislation was enforced was through an expansive (one might argue overbroad) reading of the Commerce Clause.  If you accept that reading, then this ruling falls out naturally; to rule otherwise would be inconsistent.

      Your approach would be superior if in fact the Civil Rights Act were an enumerated right in the Constitution.  However, the political realities made passing a Constitutional amendment enshrining those civil rights impossible, so Congress had to rely on a kind of shaky interstate-commerce justification for a normal piece of legislation.

      "See a world of tanks, ruled by a world of banks." —Sol Invictus

      by Delirium on Wed Jun 08, 2005 at 12:01:12 AM PDT

      [ Parent ]

      •  not neccesarily (none)
        The civil right cases were regulations of economic activity. This case like LOPEZ and MORRISON where the court ruled against the Federal Government are not regulation of economic activity. They are regulation of private, non commercial activity. The court could have ruled for RAICH and not touched the civil rights rulings. If fact none of the attorney's for RAICH made the argument that precedent needed to be overturned.
        •  Some were commerce related (none)
          There was a case where an obscure restraunt somewhere in the south wanted to ban blacks.  The place was not located near a highway or otherwise caters to tourists or other out-of-staters.  I think they got them because a small portion of the meat they sold was shipped from out of state.
          •  yes (none)
            That was my point. The civil rights cases were economic regulations. They affected busineses. The court said they also affected interstate commerce in that out of staters could go there and that they bought products from out of state.
            Congress can not regulate whether on not you allow black people in your home or private club even if they are from a different state because that is not commerce. It is beyond the scope of congresses power. Just like growing marijuana for your personal use and not selling it is not an economic transaction and should be beyond the power of Congress to regulate.
    •  Being Liberal has nothing to do with rights (none)
      The entire ruling was Liberal in the sense that they just made up a use of (i.e. judicial activism) the Commerce Clause even though the illicit narcotic was never in an interstate exchange. Reading the Constitution in any way they like is classic Liberalism. This has allowed them to have made good rulings on the environment, slavery, civil rights, evolution, etc but has also allowed judges to make the wrong rulings on gun rights, business rights, self-defense rights and the death penalty.

      Activist judges (such as Jack Weinstein) are the most dangerous kind as they will completely ignore what is written in law. I for one am glad there will be more strict Constitutionalists like Owen, Pryor, and Brown in the system.

      •  bahhh (none)
        I for one am glad there will be more strict Constitutionalists like Owen, Pryor, and Brown in the system.

        I'm not convinced these folks are strict constructionists. To be truthful, I just haven't read their writings. Could you link me to some or otherwise convince me that they are?

        I'm afraid there are too many folks who believe because Bush says they're strict constructionists, they must be. Even a self-proclaimed textualist like Scalia has been known to veer off the reservation when it suits him.

        I wouldn't want to unjustifiably believe the rehotoric and marketing hype about Bush's nominees.

        •  Tought to pin down (none)
          In general, Pryor, Owen and Brown all follow established case law or Supreme Court precedent in their rulings. The ratings by the ABA are pretty good indicators for how far off the norm a judge will be and all three had good to excellent ratings.
          It is impossible to say how someone will rule when appointed to a lifetime job, but most judges are consistent (except for Justice Souter) with their prior behavior.

          One thing that everyone forgets is that a judge can only rule based on the evidence presented before them or in prior cases. If an anti-abortion case came up that had not been covered previously in law and the pro-choice side did not show up to argue, any good judge could only find for the anti-abortion plaintiff, even if their personal feeling is to be pro-choice.

          •  Burden of proof issues aside.... (none)
            I take your response to be that the ABA rating is indicative of their strict constructionist nature. By that measure, there is nearly no such thing as an activist on the federal bench at all, because the vast majority of them received positive ratings from the ABA.

            I'm not understanding how one arrives at the conclusion of who is an activist judge and who isn't - unless of course we're just using the talking points of either party.

            IMO, there is far too much political rhetoric and not enough legal analysis in the debate over judges. I don't disagree that the ABA rating system is a positive thing. I would like to see some support for the proposition that Bush's nominees are strict constructionists - the President's rhetoric aside.

            •  Activism is in the eye of the beholder (none)
              All of it is rhetoric by both sides. The legal community has endorsed these judges with positive to excellent jurist ratings and that should be enough for those who oppose their nominations.

              There is a belief that they will be strict constitutionalists based on their personal testimony and opinions, but there is no hard evidence for this.

              There is no reason to suppose that conservative judges will be any more activist than their liberal counterparts. Owens, Brown and Pryor are good judges and all deserve confirmation. Sure they had cases before them where they may have ruled in favor of a conservative issue, but they all have also faced cases where they ruled in favor of liberal issues. It was all based on the evidence in the individual cases.

              •  Show me one case (none)
                where Owen has given a liberal ruling, not simply the result.

                Pryor has at times been a conservative centrist, that is, rejected right-wing activism to follow precedent.  The Terri Schiavo case is one, but I am 99% sure that had he been already confirmed, Pryor would have voted the other way.  

                Brown is an activist right-winger on everything but criminal procedure, where she makes her hatred of "big government" known by siding with defendants sometimes.  Still her methods are activist even in those cases.

                You are a Freeper with Rethug talking points.  

                •  Typical close-minded stuff (none)
                  Here is just one example of Judge Owen's liberal rulings: Hernandez vs Tokai Corp (2 S.W.3d 251 Texas 1999) She ruled that the Tokai Corp had to ensure that cigarette lighters be child-resistant even though they are only marketed to adults.

                  Every judge has both liberal and conservative rulings, which are based on the evidence presented before them for that case alone. The only thing that should matter is whether the ABA believes they are good jurists, based on whether they are fair, uphold case law and precedent, etc.

                  I don't apply any labels to myself nor you. Applying offensive terminology such as "Freeper" is the sign of a closed mind.

                  •  Don't give me such bullshit (none)
                    "I don't apply any labels to myself nor you. Applying offensive terminology such as "Freeper" is the sign of a closed mind."

                    This is a Democratic blog.  If you are a wingnut, W or Rethug supporter, you are not wanted here and you are a troll.

                    Your views on judges are fully wingnuttery.  My suspicion is that you are a W supporter.  If so you are unwanted here.

                    •  Democrats are inclusive? (none)
                      I happen to be a Democrat, a minority, and a lawyer (does that make me less than human?). I side with the Democratic party platform on all issues except self-defense, gun rights and obviously judicial appointments.

                      Just because you don't have anything more constructive to say on the issue of judicial appointments, don't take it out on me.

                      Go learn more about what it means to be a judge and what it means to be a good one.

                      •  Quite frankly I think you are a Rethug (none)
                        who is pretending to be a Democrat and a minority.

                        But I did preface with an "If you are a wingnut, W or Rethug supporter, you are not wanted here."

                        Regardless, your views on judicial appointments place you well outside the Democratic platform.

                        Under your(Owen and Brown's, since you think they are good judges) judicial philosophy, Griswold is bad law, the New Deal should be found unconstitutional, Social Security is unconstitutional, environmental protection is unconstitutional, and anything opposing big business is unconstitutional.  Thus the entire Democratic platform, should it be enacted into law, in unconstitutional.  Of course the worst judge to ever sit on any bench is Clarence Thomas, who is both unqualified, as well as a pure right-wing activist.  His decision yesterday was an example of that activism, with some pragmatism in that to advance his legal agenda.
                        Do you believe that Bush v Gore was strict constructionism?  What about all the religion cases where your heroes sided with the fundies?

                        As far what it is to be a good judge, I don't need your scolding, rather I've given good examples, William Douglas, William Brennan, and Jack Weinstein, who was recommended for appointment by my political hero, Robert F. Kennedy(whom the article claims may have appointed Weinstein to the Supreme Court had he lived to become President).  These guys are great heroes and opened the doors to many people previously shut out.  That is the hallmark and legacy of liberalism.  Chances are, if you indeed are a minority and a Democrat, you(or your parents or grandparents) have been helped in some way by some of the "activist" decisions of these great heroes.

      •  Jack Weinstein is a great judge (none)
        Here's an article on him for all the non-Freepers(i.e. those who are not a Lemon)

        Those like Owen, Pryor and Brown are so unfit that they ought not to simply not allowed to be on the bench, they ought not to be allowed to ever practice law.

        •  Judge Weinstein is a GOOD judge? (none)
          For people who know how to think logically:

          Here is a quote by Sen. Schumer on Judge Owen:"If there was ever a judge who would substitute her own views for the law, it is Judge Owen. Her record is a paper trail of case after case where she thinks she knows better than 100 years of legal tradition and clear legislative intent. There is no question that when you look up 'judicial activist' in the dictionary, you see a picture of Priscilla Owen."

          Now here is a quote from Judge Weinstein:"If the Court of Appeals disagrees with me or somebody else disagrees with my rulings, it doesn't bother me," Weinstein says in an interview shortly after the trial's end. "After almost 33 years, I don't feel I have to justify myself to anybody but myself."

          Now here is a quote from one of Judge Weinstein's friends:But Lou Dorfsman, who still exercises with Weinstein three times a week, did manage to chat about the case with him afterward. "He thought if you can lay this gun thing on these guys -- the manufacturers -- then there's got to be a case against the automobile business," the judge's friend recalls. "It seems they're next in line. He just made that observation in passing."

          Judge Weinstein is ignoring decades of precedent established in tort via both case law and legislation that holds party's free from harm for the third party misuse of a product. If Judge Weinstein is a good judge because he ignores precedent and rules completely independently, then under the same criteria Judge Owen is also a good judge (if you belive Sen. Schumer's statement)

          •  For those who are not right-wing extremists (none)
            The fact is that Weinstein follows the law and the Constitution as it should be interpreted, with ample protection for those who cannot protect themselves, as Justice Brennan often said.  Or as Justice Hugo Black said, "justice with a dash of mercy"

            On the other hand, Owen tries to put through her extreme right-wing theocratic agenda, with her activism on the bench.  Her goal is to advance the Rethug theocratic fascist agenda as best as she can.    

            Weinstein's comments are reasonable, he is simply saying that he doesn't take it personally when he is overruled.  Pretty reasonable IMO.


            •  "Should be interpreted"? (none)
              In Hamilton vs Accu-tek, the crux of the case was not about protecting people who cannot protect themselves. It was whether a manufacturer of a legal product can be held financially responsible for the third-party misuse of said product. Elisa Barnes argued that Accu-tek did not prevent the third party from obtaining said product thereby creating liability. Accu-tek's lawyers argued that the product was sold in accordance with all Federal, State and local laws including background checks of all purchasers. They held that it would be impossible for any manufacturer to ensure that their products are not used for crime.

              Judge Weinstein ignored decades of product liability precedent in coming up with his opinion in this case.

              Judge Owen MAY promote a right-wing agenda, but there is no evidence that this will be true. Taking a few cases out of tens of thousands that she has presided over can only paint a distorted view. Since she has been confirmed, the point is moot. Only time will tell who was right. I believe she will be a strict constitutionalist, which I personally believe is the only way a democratic government can exist. It is not up to judges to make up new laws, that is what legislatures are for.

              On the legalized marijuana fight, the Court rightly decided that the Congress must decide what is legal for medical use of marijuana.

  •  Scratching My Head (none)
    Trying to figure out what the Supreme Court's marijuana decision as to do with "electoral issues, the netroots, and Iraq."

    This aggression will not stand, man

    by kaleidescope on Tue Jun 07, 2005 at 11:52:12 PM PDT

    •  well (none)
      The netroots are all a bunch of pot-smoking hippies, you know. =]

      "See a world of tanks, ruled by a world of banks." —Sol Invictus

      by Delirium on Wed Jun 08, 2005 at 12:05:26 AM PDT

      [ Parent ]

    •  Because elected officials could fix this (none)
      From MSNBC

      "Justice John Paul Stevens, an 85-year-old cancer survivor, said the Constitution allows federal regulation of homegrown marijuana as interstate commerce. But he noted the court was not passing judgment on the potential medical benefits of marijuana.

      And Congress could change federal law if it desires, Stevens said, although that is not considered likely."
      (Empasis added)

      Democracy is the worst form of government except for all those others that have been tried. -Winston Churchill

      by roysol on Wed Jun 08, 2005 at 06:52:42 AM PDT

      [ Parent ]

    •  we all know (none)
      That if this passes, then they'll outlaw liberals next.
  •  Rhode Island Senate Responds (4.00)
    By a 34 to 2 vote, the Rhode Island Senate today passed a Medical marijuana bill. Next up the State's House of Representatives, where the measure is expected to pass.

    Governor Carcieri, a Republican, has expressed opposition, but has not as of yet expressly threatened a veto.

    Meanwhile, Greg Underheim, a Republican member of the Wisconsin Assembly (and cancer survivor), responded to the Court's ruling by announcing he'll be introducing a Medical Marijuana bill shortly. 3 years ago Underheim, Chair of the Health Committee, declared that no Medical Marijuana bill would get a hearing so long as he was chair. While denying he'd used the banned medication during his own chemotherapy, he credits his turnaround to members of his survivors' support group.

    I am not currently Licensed to Practice in this State. Or Yours.

    by ben masel on Tue Jun 07, 2005 at 11:53:04 PM PDT

    •  So why doesn't Congress bring up the issue? (none)
      These things are passing in more and more states, and have broad support in both those states and nationwide, yet congresscriters from these same states refuse to bring up the issue.  What the hell?  Heck, if the Democrats brought this up, you could even do a medical marijuana/sten cell one two attack on the Republicans.
    •  And... (none)
      the Rhode Island bill passed the Senate with enough votes that if the Governor does veto it, it will probably get overridden.

      However, nobody really knows what the General Assembly will do...not even them.

  •  judicial hackery & Eldred vs. Ashcroft (4.00)
    How I Lost the Big One

    If a principle were at work here, then it should apply to the progress clause as much as the commerce clause. And if it is applied to the progress clause, the principle should yield the conclusion that Congress can't claim the power to extend an existing term on a theory that puts no effective limit on its power.

    If, that is, the principle announced in Lopez was a genuine principle. Many believed the decision in Lopez represented politics--a political preference for states' rights, gun ownership rights, and so on. But I rejected that view of the Supreme Court's decision. Shortly after the decision, I wrote an article demonstrating the "fidelity" of such an interpretation to the Constitution. The idea that the Supreme Court decides cases based upon justices' political preferences struck me as extraordinarily boring. I was not going to devote my life to teaching constitutional law if these nine justices were going to be petty politicians.


    A few seconds later, the opinions arrived by e-mail. I took the phone off the hook, posted an announcement of the ruling on our blog, and sat down to see where I had been wrong in my reasoning. My reasoning. Here was a case that pitted all the money in the world against reasoning. And here was the last naïve law professor, scouring the pages, looking for reasoning.

    I first scoured the majority opinion, written by Ginsburg, looking for how the court would distinguish the principle in this case from the principle in Lopez. The reasoning was nowhere to be found. The case was not even cited. The core argument of our case did not even appear in the court's opinion. I couldn't quite believe what I was reading. I had said that there was no way this court could reconcile limited powers with the commerce clause and unlimited powers with the progress clause. It had never even occurred to me that they could reconcile the two by not addressing the argument at all.

    Ginsburg simply ignored the enumerated powers argument. Consistent with her view that Congress's power was not limited generally, she had found Congress's power not limited here. Her opinion was perfectly reasonable--for her, and for Souter. Neither believes in Lopez. But what about the silent five? By what right did they get to select the part of the Constitution they would enforce? We were back to the argument that I said I hated at the start: I had failed to convince them that the issue here was important, and I had failed to recognize that however much I might hate a system in which the court gets to pick the constitutional values that it will respect, that is the system we have.

    Read the whole thing.

  •  John Jay on the inconstant federalists (none)
    It has until lately been a received and uncontradicted opinion, that the prosperity of the people of America depended on their continuing firmly united, and the wishes, prayers, and efforts of our best and wisest Citizens have been constantly directed to that object. But Politicians now appear, who insist that this opinion is erroneous, and that instead of looking for safety and happiness in union, we ought to seek it in a division of the States into distinct confederacies or sovereignties. However extraordinary this new doctrine may appear, it nevertheless has its advocates; and certain characters who were much opposed to it formerly, are at present of the number. Whatever may be the arguments or inducements, which have wrought this change in the sentiments and declarations of these Gentlemen, it certainly would not be wise in the people at large to adopt these new political tenets without being fully convinced that they are founded in truth and sound Policy.

    - The Federalist, No. 2

    "When I came to this town, my eyes were big blue stars. Now they're big green dollar signs." - Jean Arthur, "Mr. Smith Goes to Washington"

    by brooksfoe on Wed Jun 08, 2005 at 02:32:35 AM PDT

  •  the nazi scalie (1.50)
    you understand scalia has said states have the rights to establish state churches, correct? you understand scalia believes utah, for instance, could require being a mormon to hold statewide office?
  •  Justice Thomas (3.50)
    In fact, I would venture to say that Thomas is perhaps the most consistent member of the court. I could say with 99.9 percent certainty how he will vote on most issues. Just interpret the Constitution literally.
    If Thomas is the justice most likely to do so, then is it fair to say that he is the best justice on the court, or the one we should most like future justices to emulate?
    Shouldn't a Supreme Court justice be in the business of literally interpretting the Constitution?
    •  Good point! (none)
      I'm going to ruminate on this one quite a bit...thanks!
    •  No. (4.00)
      Shouldn't a Supreme Court justice be in the business of literally interpretting [sic] the Constitution?
      You are kidding, right?

      Please find literal interpretations to justify the "separation of church and state," Roe v. Wade, public ownership of broadcast airwaves, and a woman's right to vote.

      The Constitution is a living, breathing concept, embodied in a document written in the 18th century.  Interpreting it literally is as fundamentalist a notion as literally interpreting the Bible.

      •  No, I am not kidding (3.33)
        You are kidding, right?
        Well, no :(

        Please find literal interpretations to justify the "separation of church and state," Roe v. Wade, public ownership of broadcast airwaves, and a woman's right to vote.
        I wouldn't even know where to begin finding a Constitutional right to abortion in the Constitution.  I happen to believe that it was wrongly judged and handled--permutations and emanations euphemistically being used to describe writing new law.
        A woman's right to vote would literally be found in an amendment to the Constitution.  That seems like the proper way to go.

        The Constitution is a living, breathing concept, embodied in a document written in the 18th century.  Interpreting it literally is as fundamentalist a notion as literally interpreting the Bible.
        I do understand that many agree with you on this.  But I find myself troubled when judges do the 'living, breathing' thing, rather than literally interpret existing law.  It just seems like taking on the role on another branch of gov.
        Besides, if you truly want judges doing the 'living, breathing' thing and believe they should make their decisions based on prevailing attitudes and mores (granted, you did not say that but it must be implied, no?) and Republicans win election after election, can liberals then complain if judges make law that tends to favor Repub visions on things?

        •  Given the text, literal interpretation still (none)
          leaves a lot of room for argument.

          You have the 9th ammendment which in effect says that we may well have rights that the drafters of the document forgot to enumerate.  It says, "The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people."

          And the tenth says, "The powers not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved to the States respectively, or to the people."

          So the document clearly implies that people very likely have rights not listed. Furthermore, the language only makes sense to have here if the point is that people can in fact invoke those rights to limit government action. The document also says that in addition there are powers which are also not mentioned and the legitimate exercise of these powers is reserved either for the states or the people.

          That much it seems to me counts as a pretty straightforward and literal interpretation of the constitution.  The tricky part comes in figuring out which rights these might be.  It would not be a literal interpretation to deny a person some right because it isn't enumerated.

          My point is that the privacy rights found in one reading of the constitution are more consistent with a literal reading of the document than a reading on which only enumerated rights have legal standing. At the same time, any given reading which picks out certain rights as the ones covered by this clause has to go beyond the words of the text to figure out what rights they might be.  A literal reading requires that.

          So I kind of think that a literal interpretation requires thinking of the constitution as proptecting rights that it takes to exist apart from the constitution and of which any group of people, including the writers, might have only a partial understanding.  How that then gets worked into a story about how judges and courts should make rulings which recognize that understanding is of course difficult and I'm not sure exactly what I think about the issue.

          While I don't actually think that John Hart Ely's positive theory of the correct role for judges is quite right, the argument he gives in Democracy and Distrust against "Clause-bound Interpretivism," is pretty strong.

        •  Great reply, (none)
           thanks.  And I apologize for the suffrage comment - obviously the Amendments are incorporated and officially a part of the document itself.  Good point.

          re: literalism v. living/breathing/changing: There must be some balance.  "Interpreting exisiting law" can surely be a lot different than reading the Consitution and accepting every notion therein word-for-word.  I don't think I suggest that judges should pick and choose from prevailing mores when they do their interpreting.  But surely they are influenced by common sense and changing societal conditions (not to mention scientific advances) even as they apply precedent and choose among conflcting appellate arguments.

          You are right that it tips one way and then the other over the years and decades.  And yes, when Republicans win election after election and appoint judge after judge in court after court, the balance tips their way.

          That's why we're all here -- trying to restore some balance, or even tip some things our way for the next good long while.

        •  Where are we told to literally interpret? (none)
          I do understand that many agree with you on this.  But I find myself troubled when judges do the 'living, breathing' thing, rather than literally interpret existing law.  It just seems like taking on the role on another branch of gov.

          Just pointing out a couple things:

          The Constitution itself is vague on how it is to be interpreted.  There is no guidance on whether the Constitution should be followed literally, or whether it should be an evolving, 'living, breathing' document, or any combination of the two.  Any statement that the Constitution should be interpreted in any particular fashion is itself a subjective interpretation of what the Constitution says.

          In support of the idea that the Constitution cannot always be read literally, there is no Constitutional provision for the Air Force, and nobody asks why we have an Air Force when the Constitution only provides for an Army and Navy.   Also, there is no definition 'due process'. Whenever a new issue of due process appears before the court, the justices are forced to interpret based on what the new issues are and how the Constitution applies.

          My guess is the founders were deliberately vague when they wrote the Constitution.

    •  Not Thomas (none)
      Thomas is the justice who thought permanent detention without trial was just fine in Hamdi.  No other justice agreed.

      So Thomas is not always the literalist.  Maybe we could do better.  A lot better.

  •  This case... (4.00)
    is an INCREDIBLY good issue for us for two reasons:

    1. The "small govt" Bush Administration spent YEARS fighting thru the Federal judiciary to get the right to arrest CA cancer patients. Talk about a grand slam.

    2. These people claim the judociary is packed with "leftist activist judges." Oh yeah, I can see that. What they were actually looking for wasn't the right to arrest cancer patients, but to take them outtside and shoot them. Damn activist judges!

    I have talked about the importance of using "populist" issues against the thugs. Well, this fits the bill. This is a great issue to use when talking to a total stranger. Ex:

    "Can you believe what the govt has done now. These guys are incredible. They want to arrest cancer patients using pot on their doctor's recommendation. I can't believe the White House spent years fighting in court for this with taxpayer money. You kind of have to wonder what motivates them. It's like they are working for the drug companies or something. And they say the courts aren't right wing enough for them."

    If you say this to someone, you have just planted a seed for an electoral revolution. Nobody would disagree with this. Notice the lack of the word "Bush". Come back and water your seed next week. Ease into it, without attacking Man or Monkey by name, and gradually build up over a couple weeks. Try it on someone at work. This will be a hundred times more effective if the person doesn't identify you as a highly "political", but rather an ordinary guy/gal. About three or four sessions like this, and in most cases you have "indoctrinated" someone, and can then let fly. It is critical that people not identify you as too political at the outset, that will turn them off like flipping a switch (unless you're really, REALLY good).

    If everyone on this site effectively did this to 5 people. I think it would be over for the thugs.

    Issues to use besides this:
    *Bankruptcy Bill
    *Real ID Act (national ID cards)
    *$600 Million Embassy in Baghdad
    *US will spend as much on defense as the rest of the world combined this year
    *Social Security
    *The deficit
    *Huge cuts in VA funding/mistreatment of vets

    Issues to stay away from (now at least)
    *Gay marriage
    *Prisoner Abuse (some dopes actually like this)

  •  Establishment liberals hate dopers. (4.00)
    I've now posted this comment in somewhat different form two other diaries. This is the third and last time. The reason I'm posting it again is that the previous diaries sank into oblivion. Today, we finally get a front-page diary on the constitutional issues. The political reality lies, however, in the American Gulag -- not Guantánamo, but the vast system of prisons that are the back-end of the criminal injustice system.

    Richard Nixon began the war on marijuana users as a means of controlling dissent.

    Once-Secret Nixon Tapes Show Why US Outlawed Pot

    Nixon's private comments about marijuana showed he was the epitome of misinformation and prejudice. He believed marijuana led to hard drugs, despite the evidence to the contrary. He saw marijuana as tied to "radical demonstrators." He believed that "the Jews," especially "Jewish psychiatrists" were behind advocacy for legalization, asking advisor Bob Haldeman, "What the Christ is the matter with the Jews, Bob?" He made a bizarre distinction between marijuana and alcohol, saying people use marijuana "to get high" while "a person drinks to have fun."

    "Homosexuality, dope, immorality in general," Nixon fumed. "These are the enemies of strong societies. That's why the Communists and the left-wingers are pushing the stuff, they're trying to destroy us."

    I find it really interesting that the decision was covered in several extensively commented diaries on, with the majority of the posters disagreeing with it on constitutional grounds and also on the underlying issues of pot itself.

    When I raised the issue of the doper vote during the election, people here yawned or ridiculed me. It's nothing new. I spent my life in media as an outsider. The only major publications that would touch my work during my most productive years were Playboy, Penthouse and Larry Flynt. Other than some poetry published on the editorial page while I was still in college and a handful of letters to the editor, my name has never appeared in the New York Times. I am not going to go into my personal history here except to say that I am a liberal dissident. No one can challenge my liberal credentials.

    Despite this, I think that the liberal mentality that I see expressed over and over again on dailykos and other similar forums is completely out of touch on the non-economic issues that touch the American heart. When it comes to the emotional and the sensual, these liberals are closet prudes.

    Liberals in general conveniently ignore their own utterly totalitarian disrespect for human freedom in areas such as vice. They've been right there with the worst conservatives doing their best to forbid prostitution, pornography and non-pharmaceutical drug use. Add in their complicity in the abuses of the mental health system, and you understand how the right has always been able to label liberals anti-freedom.

    If you look at the history of vice, you see that the laws regulating vice are fully congruent with the liberal idea that government has a right to tell you what to do with your personal life if it chooses to do so in areas that can be considered health or sanitary regulation.

    When it comes to vice, liberals have been hand in hand with conservatives in enforcing totalitarian beliefs and standards.

    I spent many hours online trying to convince my doper friends to vote Democratic. One of the most powerful arguments was who would name a better Supreme Court when it comes to drug use -- Kerry or Bush.

    The Doper Vote

    By Jules Siegel, AlterNet. Posted October 22, 2004.


    Orthodox leftists seem to be incapable of understanding the size and intensity of the anti-drug war movement. Do they think these people don't vote?"

    Thus there's only one practical consideration left for the anti-drug war side. Who will appoint the judiciary, including as many as three Supreme Court justices?

    The Supreme Court can legalize marijuana by fiat. Think of it -- no negotiations and tortured lobbying, but genuine experts expounding on the facts, constrained by rules of evidence.

    Pick one: Bush or Kerry. Which candidate is most likely to name judges who will interpret the Constitution of the United States according to facts in evidence rather than DEA propaganda?

    I feel like an utter fool. News and issues for journalists.

    by Jules Siegel on Wed Jun 08, 2005 at 06:06:18 AM PDT

    •  Huh! War! What is it good for? Absolutely nada! (none)
      With this frigging country, every thing seems to be a frigging WAR.  Our citizens do drugs.  We're waging WAR on our citizens?  No wonder we have so many murders in this country; the government has instilled a war mentality, and war is about fighting or dying.

      The interesting thing is that if you cruise the Republican-oriented websites, you find a LOT of words of war concerning their battle with liberals.  The radical born-agains are also in a war and battle with us infidels.  I'm just waiting for one of the nut-cases that get on TV every Sunday to start in on Levitical law about what to do about unbelievers.

      Say it again!  War! Huh!

    •  I'm amazed this is the first time I've heard this (none)
      outside my own voice ringing in my ears like an amp at a Phish concert.

      How many pot heads voted for Bush? A lot more than I ever thought. IN fact, I was shocked at some of the people I know, who are anti-drug-war, social libertarians voting for this fascist theocracy.

      Thank you for this comment, as I would have missed it otherwise.

      •  Well... (none)
        ...if Bush nominates two more Thomases, this ruling would go the other way, wouldn't it?


      •  Well, that's because most of them (none)
        are (per Dean) white people who likely would never go to jail for possessing personal amounts of pot. Now a black kid from a poor family...

        Keeping recreational drugs illegal gives the government a nice trump card. If you want to indulge in your private pleasure - you white, middle class - keep your mouth shut. Otherwise we just might decide to use our sentencing leeway to make you pay.

        George Bush prancing on the aircraft carrier: one of America's worst moments

        by grushka on Wed Jun 08, 2005 at 09:57:10 AM PDT

        [ Parent ]

      •  Before this administration (none)
        The GOP was generally more supportive of freedom in everyday life. From raising or eliminating speed limits, opposing seat belt laws, opposing anti smoking laws, opposing gun control and also restricting the federal police power. These affect people in their everyday lives and it seemed that "liberals" were the ones proposing these new regulations or opposing their repeal. That is why many people associate "liberals" with being anti- freedom and elitist control freaks.  Obviously Bush has no regard for individual rights and freedom. Democrats need to embrace federalism and privacy. So many voters would come there way if the Democrats were credible on these issues.
      •  Not a big deal, but... (none)
        it really cheapens language and causes the rest of the post to be glossed over when someone says for this fascist theocracy in relation to Bush or whomever or other such extreme silliness.  Save the 'fascist'or 'Nazi' nonsense for when it really is deserved.
        •  Whoa, hold on there - read the definitions... (none)
          First of all, I didn't say NAZI. But I did say fascist.

          fas·cism  A system of government marked by centralization of authority under a dictator, stringent socioeconomic controls, suppression of the opposition through terror and censorship, and typically a policy of belligerent nationalism and racism.

          The Bush administration has centralized the power of the executive branch more than any administration in history. Socio-economic controls: arresting cancer patients for smoking pot based on the Commerce Clause, the BLM giving away federal lands to Oil Companies, oh, fuck it, you know what I'm talking about.

          Here's where Dean has it right. We need to stand up and speak the truth. These people are fascists. They are limiting personal freedom thorugh socio-economic controls. What's more controlling than making poor people poorer, getting rid of the middle class, and creating plutocrats?

          As for belligerent nationalism and racism, well, just read the diaries here today about kidnapping kids and forcing them to sign up for a military on a global crusade and Holy war against Muslims. Or the Family research people paying Duke 80G for his racist mailing list.

          As for theocracy, how else do you explain a president who says God told him to strike Al Qaeda and God told him to attack Iraq? How else do you explain Carte Blanche for Israel? How else do you explain the Air Force Academy? How else do you explain Faith Based Initiatives?

          We need to stop being so goddamn nice. They win by being mean. It's time we fought back. The Republican Government is a fascist theocracy/plutocracy. They still have a way to go before their Nazi's, but they've gotten off to a good start.

    •  good article (none)
      It wasn't clear who you were advocating for on the judges. "liberal" judges do tend to be more deferential to the government, which boggles me. The drug war is not a partisan issue. Almost all elected officials publically support it. Clinton was horrible on marijuana policy and Bush is just as bad.
    •  On what possible grounds (none)
      do you think the Supreme Court could legalize marijuana by fiat?

      And how in the HELL would that be a good thing?

      You are advocating the abandonment of democracy in this country.

      You are in fact arguing for a THEOCRACY- one where the clerics are lawyers and the High Priests are judges.

      Can't imagine why your arguments can't gain any traction.

      A flame rescued from dry wood has no weight in it's luminous flight yet lifts the heavy lid of night.

      by JakeC on Wed Jun 08, 2005 at 10:51:50 AM PDT

      [ Parent ]

      •  so I can assume (none)
        that you believe Roe v. Wade was incorrectly decided as it took the abortion issue out of democracy. Marijuana could be legalized by the court on the same grounds, privacy and the right to control our bodies.
        •  n/t (none)
          1.  I believe Roe v Wade will be judged by history to have ultimately set back abortion rights in this country, for exactly this reason- it threw out democracy.

          2.  For the court to make that decision, based on privacy, it would have to similarly rule for all controlled substances.  There is NO way that is going to happen.  I would even speculate (but I'm not doing a Lexis search) that there already case law establishing that the states and federal government can in fact regulate controlled substances.  Abortion didn't open any similar flood gates.

          3.  There are dozens of things in this country that you are not permitted to do, regardless of the so called "right" to control our bodies.  Largely because it is virtually impossible for any such right not to infringe on others.

          4.  And, you didn't address my point, that endorsing a country where the Courts make such determinations over the objections of the People, is NOT A DEMOCRACY.  It is a THEOCRACY.  That's how they do things in Iran- you have elections, choose leaders, and those leaders make the laws, except that those leaders can be overruled at any time by the theocrats.

          5.  And, since you threw Roe v Wade up there as a sacred cow, figuring that no one could possibly dispute it, I will- I believe Roe v Wade to be a travesty of a legal decision.  Not just because it overturned the will of various majorities in several states, plenty of Supreme Court decisions do that, and if you accept the principle of a Constitutional right to abortion, then the Court's holding is understandable.  But, the whole segregating by trimester was legislating, not a court ruling.

          A flame rescued from dry wood has no weight in it's luminous flight yet lifts the heavy lid of night.

          by JakeC on Wed Jun 08, 2005 at 01:45:43 PM PDT

          [ Parent ]

          •  n/t (none)
            OK, I was just seeing if your reasoning is consistent. I too have mixed feelings about Roe v. Wade and generally oppose legislating by the courts. I do not think that marijuana will be legalized by the courts. I do think that the commerce clause does not justify the current federal involvement in drug policy. Police powers should be limited to the states in most circumstances. Interstate trafficing calls for federal involvement but possesion and sale of illegal or "legal" substances should be handled by the state governments. What took place in RAICH, personal growth and consumption, is clearly beyond the reach of the federal goverment in my opinion.
    •  Totally agree, why do dems support the WoD? (none)
      Jules' and the immediately preceding comment about how the WoD can be shown to be just more regressive Bush republicanism hit the nail on the head.  I too am amazed that there is more justified outrage about the war on pot and sick people over at the Free Republic site than here.  

      And I was similarly baffled last year why the Kerry blogmeisters held drug reformers at a good arms length, like we had cooties or something.  It makes me want to hurl when I realize that economic "liberals" who I otherwise share many values with, are so tone deaf to how drug prohibition and a war on a commonly used recreational substance have spawned this gulag and eviscerated civil and legal rights for millions of families.  Yet, we're still talking about this failed Clinton triagulating liberalism that supports this out of control status quo inertia so we don't lose the votes of a few suburban "security moms" by being soft on crime.

      Folks, when record high numbers of people (mostly poor kids) are busted for pot (735,000 last year) and then lose student aid, and when prison spending has overtaken higher education, and this whole WoD costs $50Billion/yr do you think this is good policy?

      If you think that the courts' ruling on pot had anything to do with a possible repeal of the minimum wage or child labor laws or that Scalia was not being a hypocritical whore just jettisoning his professed beliefs to position himself for the chief justice appointment, and thus you think it was a good decision, that seems to me the product of this incredible blindness of some "liberals" to the drug - freedom issue.

  •  And so? (none)
    What's new?  

    A Republican (Scalia) is a hypocrite.
    Republicans turn out to be activist when it suits them.
    The DEA and Justice Department lie through their teeth (about busting individual pot growers).
    The government - Republicans, mostly - continue to legislate morality - as long as it's THEIR morality, thought that seems to change, depending on how much money they've received from whatever immoral enterprise there is. (take, for instance, the fact that the co-chair of a subcommittee of the National Republican Congressional Committee is a porn film maker)
    You can depend to be able not to depend on SCOTUS to preserve our liberties.

    What's new?

  •  32000 plants!! (none)
    I checked the link KOS posted by MBlades....the first case on the list was/is a guy who had 32000 plants in his house/yard!!  Now folks, that aint for his personal use.....and his answer, that they belonged to other people....puh-lease!!  These types of things destroy the credibility of those who are REALLY serious about medicinal MJ.  I haven't checked out all of the available info but I wonder if the DEA is cracking the heads of people who are growing one or two plants??
    •  I had a similar reaction (none)
      See my reply to meteor blades above. Generally, the answer is no to your question. But the case just decided was for a raid on 6 plants and there are a few others like it.

      But in reality growing 3-6 plants is very low risk. The DEA really does have better things to do. The problem is they don't always know what's going on. Someone tips them off about their neighbor who has a "huge" growing operation and the next thing you know the feds are busting your door down. I'm sure they are probably pretty pissed when they find only three plants. But you'll still get hauled off and spend a night jail. Not a pleasant experience.

      The thing is, (and I would wish this on nobody) the more old sick ladies getting frog-marched on tv for three plants the more likely the public puts pressure on their congressman to do something.

  •  Scalia and Thomas (4.00)
    While I haven't done more than skimmed Scalia's concurrence, I'd like to say that I think its rather  unfair to characterize him as a partisan hack. From cases I have studied closely, I'd say that outside of issues of religion (where his personal views seem to, unfortunately, trump the legal reasoning a man of his immense intellect ought to be able to generate), he's a very strong and consistent civil libertarian. The best examples of this I can think of off the top of my head are his dissent in Booker and Fanfan and his concurrence in Kyllo (coincidentally, a case also concerning marijuana). Anyway, I'm not sure why he voted with the majority in this case, and, as I mentioned above, I don't like his rulings in cases touching religion, but I have a great deal of respect for him as a jurist, and I'll put my liberal credentials up against anybody here while I say that.

    As for Thomas... frankly, the fact that he dissented makes me almost glad the case came out this way. Thomas is pretty clearly a follower of Douglas Ginsberg's "Constitution in Exile" movement, and probably saw this case in that light. While I'm all for medicinal marijuana, and think marijuana restrictions ought to be relaxed en toto, that issue flies rather low on my radar, especially when put up against fundamental issues such as the federal government's right to enforce labor restrictions (overtime, minimum wage, safety regulations, etc.). Thomas believes that the New Deal court's rulings on these issues were not consistent with the commerce clause (an idea Scalia finds absurd, for the record), and that probably guided his vote in this case. While I'd rather not have to take a few steps back on medicinal marijuana, I'd rather do that than give up an inch on the New Deal.

    •  Scalia (none)
      I haven't read all the Scalia opinions but I think one thing here might be his love of laws period.  This is, I suspect, why he was opposed to getting involved in the feeding tube thing.  His philosophy is that if you don't like the law, change it, but don't try to make it something that it isn't.  Now this doesn't negate the fact that he is a hack....I truly believe he is that and more.  But his judicial philosophy is basically that the law, as written, is what you go by.
      •  One more point (none)
        I think that Scalia wouldn't have a problem if you went to the federal level and changed the classification of pot or if you just changed the federal law......he would say good ridance.  That's my understanding of a positivist, which he is.
  •  Scalia (4.00)
    I think he's dangerous, but he's not a "partisan hack" and kos is taking a cheap shot when he says he is.  Scalia's votes have included upholding the 1st amendment in Texas v. Johnson (the flag burning case) and a very pro- 4th amendment decision upholding the right of people to be free from surveillance via police thermal scanners.

    Thomas and Scalia often vote the same way, but there is a subtle difference in their votes that is reflected in this case.  Scalia is considered an originalist.  Thomas is flirting with the "Constitution in Exile" movement which wraps itself in the flag of originalism, but in actuality masks a frightening conservative political agenda that seeks to undo virtually all progress the federal government has ever made through programs like the New Deal.

    As for this decision, I have to say that I think it was correct.  As a matter of policy, I consider drug prohibition, especially at the federal level, to be overreaching.  Prosecuting users of medical marijuana is particularly vicious and cruel.  But I do believe that the Constitution properly construed, gives the Congress broad powers under the commerce clause, and those who seek to limit it in this case because of a (very understandable) sympathy for the patients in this case ultimately do more harm than good.

    •  You beat me to the same point (none)
      (with regards to the first two paragraphs), and articulated the position better than I can.

      I can't really agree with your third paragraph.  Part of it is that I really don't even see how there can be any dispute when it comes to medical marijuana, and I am a lot less pro-legalization than a lot of the people on this site.  I realize that your argument is one of principle, and I can respect that, but I can't help but have my reaction colored by that.

      Also, I do think the Commerce Clause is over broadly used, and this case highlights that.  If not in this matter, than do states have any rights at all?  Is there any matter that shouldn't be the province of the federal government, but rather local governments.

      Also, I like what O'Connor had to say regarding the idea that each state can act as a "social labratory" to try out new things without impacting the society as a whole.  Again, I can't think of an issue that fits this better.

      A flame rescued from dry wood has no weight in it's luminous flight yet lifts the heavy lid of night.

      by JakeC on Wed Jun 08, 2005 at 08:42:25 AM PDT

      [ Parent ]

      •  Exactly (none)
        If growing plants in your backyard for your own personal use, with no money changing hands, is "interstate commerce"-then everything is.
        •  Ironically (none)
          The big case in this area (whose name escapes me)also involved growing plants for a person's own personal use, with no money changing hands- only that plant was some sort of wheat or other crop, not marijuana.

          As I thought about it, I came off my main point a little- if you substitute "medical marijuana" with "crack cocaine" it's a little easier to see where the feds would be coming from.

          I know I'm not going to get it here, but I really would like to hear someone, somewhere, give me a decent argument against medical marijuana.  Because I just don't see this as having two sides.  (And, I don't buy slippery slope in this case, plenty of proscribed controlled substances are used legitimately in medicine).

          A flame rescued from dry wood has no weight in it's luminous flight yet lifts the heavy lid of night.

          by JakeC on Wed Jun 08, 2005 at 10:31:27 AM PDT

          [ Parent ]

        •  Ironically (none)
          The big case in this area (whose name escapes me)also involved growing plants for a person's own personal use, with no money changing hands- only that plant was some sort of wheat or other crop, not marijuana.

          As I thought about it, I came off my main point a little- if you substitute "medical marijuana" with "crack cocaine" it's a little easier to see where the feds would be coming from.

          I know I'm not going to get it here, but I really would like to hear someone, somewhere, give me a decent argument against medical marijuana.  Because I just don't see this as having two sides.  (And, I don't buy slippery slope in this case, plenty of proscribed controlled substances are used legitimately in medicine).

          A flame rescued from dry wood has no weight in it's luminous flight yet lifts the heavy lid of night.

          by JakeC on Wed Jun 08, 2005 at 10:31:55 AM PDT

          [ Parent ]

          •  Re: Ironically (none)
            Luckily, I'm in the middle of Bill Rehnquist's history of the SCOTUS, and have it handy.

            Wickard v. Filburn is the wheat case of which you're thinking, although its easily distinguished legally. In the case, decided in 1942, Filburn was growing wheat for use as feed and seed on his own farm, but the Sec. of Ag. imposed wheat restrictions, including limiting how much Filburn could grow. Filburn challenged the constitutionality, and the court decided that the government could constitutionally restrict Filburn's wheat production under the commerce clause, as his growing his own wheat meant he didn't buy any, which indirectly affects interstate commerce.

            Of course, the big difference here is that you can't buy or sell marijuana legally, so growing your own doesn't affect interstate commerce in quite the same way.

            The most logical commerce clause argument the court could make in this case is that you had to originally get the seeds from somewhere, and that somewhere is regulable by the federal government. I don't know if this argument was made (I tend to doubt it) as I haven't read the decision.

            •  Distinguishable or not (none)
              Both are ridiculous.

              Take the logic through to the end.  If the government were to set a price floor for tomatoes, any person growing them in their own back yard for eating would have to stop, since absent the one's they grew, they would have to buy them at the designated price.

              Thank you for the cite.  

              A flame rescued from dry wood has no weight in it's luminous flight yet lifts the heavy lid of night.

              by JakeC on Wed Jun 08, 2005 at 01:55:29 PM PDT

              [ Parent ]

        •  Perhaps (none)
          First, let me make my policy views a bit clearer, although they wont be that clear because these are tough issues.

          1.  I believe that both the feds and the states should allow the use of marijuana for medicinal reasons.  I believe that if a state has made such a decision, the feds should not spend their resources controverting that policy.

          2.  I also have serious doubts as to the efficacy of drug prohibition, particularly when it comes to marijuana.  So long as enough states prohibit drugs, I do not think the feds should legalize them, but I think the federal government should only focus on large scale trafficking.  With respect to states, I am ambivalent on the idea of legalization, but I am open to hearing arguments.

          Now with respect to the commerce clause...

          I think it can be argued that, in specific instances, that one's activity, judged in isolation, can be small scale enough to say that one is not engaged in "interstate commerce" by any well understood definition of the term.  For me, however, if the activity as a whole can be said to affect interstate commerce, then the government can regulate that activity.  It does not need to go and prove jurisdiction in each instance.  "Well your honor, in this case, there were 25 cannibis plants, and there is a high likelihood that one of them crossed state lines."  As a policy matter, Congress and the Executive should consider their own jurisdictional limitations, but I do not want courts drawing those lines.

          In other words, if it is within the general class of interstate activities, then the rule can also cover the subsection of those activities which don't cross state lines.

          This admittedly can be taken to an extreme, whereby almost any activity can be considered to affect interstate commerce.  And in fact, this case may be the extreme.  Nevertheless, for the federal government to function as we have known it since at least the New Deal, and arguably before that as well, I think it's the only option.  On the other side lies Janice Rogers Brown and her ilk.

          •  My problem (none)
            Is that I seems some merit to the other side.

            I know, when you put it in the context of minimum wage, ADA, etc. that everyone comes out against State's rights- because, they want to protect the underlying programs.

            But, imagine a state that due to it's high violent crime rate banned possession of all guns by everyone (forget 2nd Amendment issues).  The feds then turn around and pass a statute protecting every individuals right to possess a gun.  Can't you see where the benefit may lie in allowing the individual state to deal with it's own issues as it sees fit?

            And, I come back to the idea of the states serving as labratories for new ideas- I like that.

            A flame rescued from dry wood has no weight in it's luminous flight yet lifts the heavy lid of night.

            by JakeC on Wed Jun 08, 2005 at 10:59:23 AM PDT

            [ Parent ]

            •  I don't disagree... (none)
     a matter of policy.  I don't mind the states having leeway to experiment.

              As a matter of Constitutional Law, however, I believe that ultimately, federal supremacy is necessary.

  •  Drugs vs. Guns (none)
    Drugs bad. Federal government must have total control, whether they cross state lines or not.

    Guns good. States must have total control, even if guns from PA flood into the streets of NYC.

    It's so logical, American law.

    A democracy can die of too many lies. - Bill Moyers

    by easong on Wed Jun 08, 2005 at 07:58:10 AM PDT

    •  The second amendment (none)
      of the Bill of Rights guarantees citizens right to bear arms.

      There is no similar status for cannabis.

      •  A Well Regulated Militia Being Necessary (none)
        Gun lovers can read the constitution any way they like, and they do, just like fundies can quote Leviticus but forget about Matthew.

        A democracy can die of too many lies. - Bill Moyers

        by easong on Wed Jun 08, 2005 at 08:26:15 AM PDT

        [ Parent ]

        •  Exactly (none)
          The second amendment is actually quite literally qualified by the phrase "a well regulated militia being necessary...".

          The concept of a militia as a fairly regular police/paramilitary force has been well-documented by many Consitutional scholars.

          The 2ndamendment is hardly an unqualified slam-dunk for unfettered gun ownership.

          George Bush prancing on the aircraft carrier: one of America's worst moments

          by grushka on Wed Jun 08, 2005 at 10:11:43 AM PDT

          [ Parent ]

          •  Individual rights (none)
            The militia is already clearly defined in US Code under Title 10, Subtitle A, Part I, Chapter 13, Sec311:
            (a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
            (b) The classes of the militia are--
            (1) the organized militia, which consists of the National Guard and the Naval Militia; and
            (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

            Nothing in law requires that a militia member needs to be police or paramilitary. All US citizens are part of the unorganized militia.

            The 2nd Amendment is not about unfettered gun ownership, just as the 1st does not allow for libelous print. The 2nd Amendment, however, is an individual right and should have the same high bar for infrigement as the other individual rights. Most urbanites and liberals (the core of the Democratic Party), however, don't see it that way.

            •  Well Regulated (none)
              Where in the constitutional adjective "well-regulated" does one envision an unorganized, armed citizenry? I'd call that either vigilantism, anarchy, or mob power.

              A democracy can die of too many lies. - Bill Moyers

              by easong on Wed Jun 08, 2005 at 11:20:26 AM PDT

              [ Parent ]

              •  Well-regulated could mean many things (none)
                One doesn't have to envision anything. It is already spelled out that an unorganized, armed citizenry between 17 and 45 years of age IS a part of the milita. "Well-regulated" does not mean unfettered. The government can impose meaningful restrictions, just as there are limitations on First Amendment rights, but any restrictions must meet the high bar of taking away an individual right. Registration, bans, usefullness tests all fail that high bar.

                "Well-regulated" could just as easily be interpreted to mean that the government could require every member of the militia to own a firearm (like in Switzerland)  

                •  Perhaps... (none)
                  ...the amendment can be read to say that FEDERAL government cannot interfere with a STATE's right to regulate its militia.  An exception to the general doctrine of federal supremacy, noted above.

                  So while there may be limits on what the federal government can regulate when it comes to firearms, the states have the right to regulate such miltia's under their general police power.

                  •  Dangerous road to go down (none)
                    Under that interpretation, the Feds could also not interfere with a State outlawing a religion, censoring free speech, requiring licences to print news, ban abortions, allow slavery, etc.

                    The Constitution represents the supreme law of the land and must logically supercede State law when said law affects more than one State.

                    •  No (none)
                      "Under that interpretation, the Feds could also not interfere with a State outlawing a religion, censoring free speech, requiring licences to print news, ban abortions, allow slavery, etc."

                      These are two separate issues.  With respect to the 2nd amendment, the question is does it only prohibit the feds from restricting such a right, or does it also apply to the states.  The Bill of Rights was a check on federal power.  The Court has, generally, said that the 14th amendment protections "incorporate" those rights to make them applicable to states as well.  However, it has never said that this is a blanket rule, and given the language of well regulated militias, one can say that the 2nd amendment is not incorporated.

                      As for Congress "interfering" with state laws restricting such rights, the Court has, sort of, indicated that they can't do that, because that is the province of the Courts to decide what the law is.  That was decided when the Court struck down the Religious Freedom Restoration Act.

                      There's an open question as to the "enforcement" power under the 13th, 14th and 15th amendments, as to how far Congress can go in determining the scope of such protection.  But generally, the Supreme Court has said that THEY determine the scope of Constitutional protections, not Congress.

                      •  Individual right (none)
                        Yes, I do agree it is possible to opine that the Second Amendment is only a check on the Federal government (that is until a pure Second Amendment case comes up before the modern Court). It is  equally possible to state that it also applies to  states under the 14th Amendment. I personally feel that as an individual right, the Second Amendment deserves the same widespread protections as the other individual rights in the Constitution.

                        I apologize for my miswrite on this sentence "Under that interpretation, the Feds could also not interfere with a State outlawing a religion, censoring free speech, requiring licences to print news, ban abortions, allow slavery, etc." I did not mean to imply that Congress would interfere with State laws. I meant that using the interpretation that the Constitution is only a check on the power of Federal gov't would allow the States to restrict fundamental rights (unless a specific Court ruling prevents it)

                        Under this interpretation, the various state laws banning gay marriage are legal as Romer v Evans does not apply to marriages specifically. The Court declined to hear Largess v Supreme Judicial Court of the State of Massachusetts where they easily could have extended 14th Amendment protections to marriage using Romer v Evans as precedent. That they did not do this does not mean that laws against gay marriage are unconstitutional. It just means that (like many gun laws), they are not unconstitutional yet.

                •  You mean MALES have an individual right (none)
                  Leaving aside the issue of whether it makes any sense to look to statutes to interpret the constitution (which seems to get it backward), your definition gives women no right to bear arms. That would sure beat an interpretation that gives everyone a right to bear arms!
                  •  Technically true. (none)
                    Technically that is true (at least until the Equal Rights Amendment is finally ratified).

                    One can also read that since women are not specifically mentioned that they are simply not members of the militia. If one believes in the collective interpretation of the Second Amendment, then yes females have no right to bear arms. If one follows the individual rights interpretation, then females are certainly able to own firearms, they are simply not militia members.

                    It is not unusual for women to be placed in a weird status with arms, militia and military service. Women are still not allowed to be in active infantry combat. The ERA would likely automatically change that as well.

  •  Hooray for hurting Americans! (4.00)
    We all know damn well that the federal government trumps states' rights whenever it pleases, and that conservatives merely use states' rights as a wedge to strike down specific federal laws they detest. We all know that the last thing neoconservatives crave is decentralized power in any form -- no matter how they frame their arguments for the destruction of the New Deal. Who here is living in such a fantasy world that they don't know this? Raise your hands.

    Okay. In my mind, I didn't see any hands. So can we all agree that this was not a test-case to decide whether the "commerce clause" can still be used to enforce the minimum wage? Or should we Democrats respond to the words "federalism" and "states' rights" like Pavlov's pundits, with no judgment of circumstances or real-world impact whatsoever? Shouldn't there, in fact, be some things that states can decide for themselves? And doesn't medical marijuana fall pretty squarely in that category, given the ease with which it can be restricted to intrastate commerce, its negligible impact on interstate trafficking in illegal drugs, and its huge impact on the lives of sick people?

    What I see is a Supreme Court that increasingly upholds state laws that serve arch-conservative causes, and also increasingly upholds federal laws that serve arch-conservative causes. Hooray, we've accomplished nothing.

    We don't see things as they are, we see them as we are. - Anaïs Nin

    by Valentine on Wed Jun 08, 2005 at 07:59:12 AM PDT

  •  Scalia (none)
    Scalia is as constant as Thomas, they just don't have the exact same view point.  If you look, you can see that Scalia wrote a separate opinion from the majority written by Stevens.  And, Scalia has ruled consistently in the past, even when it's something that would not seem to match his Republican credentials (flag burning, for instance).

    A flame rescued from dry wood has no weight in it's luminous flight yet lifts the heavy lid of night.

    by JakeC on Wed Jun 08, 2005 at 08:34:04 AM PDT

  •  Kudos to the 7 Justices (none)
    who remained true to their understanding of the Constitution. It was a significant change from Bush v. Gore where all nine switched sides because it was politically expedient.

    What I find interesting in this case is that it represents a substantial sea change politically. For decades, with Dems in control of the federal government, the breadth of the commerce clause defined the extent to which progressive policies would be enacted. Now that conservatives control the federal government, their allegiance to the 'principle' of States' rights has vanished, demonstrating that the only thing they desire is power.

    The irony is that a 'liberal' interpretation of the constitution is now being used to support conservative policies. At least these 7 justices are consistent, have faith in the political process, and believe we get the government we deserve.

  •  As I've said before (none)
    the real liberal position on this issue is that the law should have been struck down as a violation of privacy as derived from the 9th Amendment, Griswold, Roe, and Lawrence, not on the Commerce Clause.  

    Clinton gave us two centrists as opposed to liberals.  If we had two liberals instead (Clinton was too afraid to appoint justices with views like Douglas or Brennan), they would have concurred in the judgement with the three dissenters, and thus resulting in a majority against the drug laws.  There would be no real majority opinion however.

    The fact remains we have 4 centrists, 2 conservatives, and 3 extreme theocratic right-wingers on this court.

    •  The privacy... (none)
      issue was NOT before the court--the Court can only rule on the "question presented" to it, which, in this case, was whether the application of the CSA to Raich was consistent with the Commerce Clause.  Occaisionally, a judge will discuss (typically in concurrence) an alternative grounds--e.g., Thomas in Lopez makes mention of his belief that the Second Amendment barred the challenged act.
    •  Court (none)
      4 CENTRISTS? Souter, Ginsberg, Stevens, and Breyer are hardly centrists (unless the center is re-defined as being two feet to the left!).

      The Court has 4 Liberals, 2 Centrists and 3 Conservatives or put another way 4 Activists, 2 Semi-activists and 3 strict Constitutionalists.

      •  cough. (none)
        Compared to Brennan and Marshall, they're centrists.

        "Let's put our heads together/And start a new country up/Our father's father's father tried/Erased the parts he didn't like" - R.E.M., "Cuyahoga"

        by Adam B on Wed Jun 08, 2005 at 12:25:47 PM PDT

        [ Parent ]

      •  It sounds like you are from Freeperland (none)
        As far as your comments, the four judges are centrists, and probably slightly to the right.  You want a liberal, William Brennan, Thurgood Marshall, and William O. Douglas qualify.  Souter, Breyer, Ginsberg, and Stevens do not.  They are centrists, as they simply follow Supreme Court precedent and write narrow opinions as opposed to interpreting the Constitution as it should be interpreted, as a living, breathing document.  
        Further, the activists are the right-wing theocrats Scalia and Thomas, as well as Owen and Brown.  They twist the law into anything that they need to get the desired result.  The Justice who has best followed the constitution as it should be followed was Justice Douglas in the late 1960s and 1970s.  

        It looks like you are an extreme right-winger with your four comments, especially with you strong support of Owen and Brown as good judges. From one of your earlier comments:
        "I for one am glad there will be more strict Constitutionalists like Owen, Pryor, and Brown in the system."
        Let me remind you that this is a Democratic blog, and wingnuts like you are unwanted here.  Very likely you've been banned before, and got another account recently.


        •  Living/Breathing (gasping?) (none)
          Constitution as it should be interpreted, as a living, breathing document.

          Somewhat off your main point, but... Advocating too strongly that the Constitution be interpreted as a "living, breathing document" could backfire if the makeup of the court changes slightly and shifts to the "right" (vs. to "original intent"). We are living in a time where the legacy of one flavor of activist Supreme Court Justices is so ingrained it is natural to assume that "activist" is synonymous with expansion of individual rights and an increasing role of Federal government in social programs. In the age of "terror", the "living breathing" attitude could result in just the opposite in the next 15 years - as in: "due to the new threat of terror which could not have been envisioned by the drafters of the Constitution, the people's right to [some right you like] may be limited by regulations issued by the Department of Homeland Security".

          It seems appropriate that the SCOTUS apply the concepts of the Constitution to the technological changes of the modern world (for example, it seems appropriate for the court to consider if thermal imaging through the wall of your house w/o a warrant is constitutional or if "virtual" assembly at is protected under the "right of the people peaceably to assemble"). However, for the most part, the Constitution should be allowed to "live and breath" through the well understood process of amendment rather than the capricious whims of whatever party happened to be in power when Supreme Court Justices keel over.

  •  Is the real fight ahead? (none)
    Is it ahead in Congress?

    Aren't the real fights the upcoming bipartisan

    •  Rohrabacher-Hinchey Amend.
    •  "States' Rights to Medical Marijuana Act"

    These should get underway shortly.  Maybe the publicity generated here (with this ruleing) will make this year the year...

    Or next...

    The best quote from StarWars III - "So this is how liberty dies; with thunderous applause."
    read my blog!

    by hfiend on Wed Jun 08, 2005 at 11:11:08 AM PDT

    •  Also an Administrative challenge (none)
      pending before HHS. An Administrative Law judge begins taking testimony in August on a petition to reclassify Marijuana within the process defined in the Controlled Substances Act. Both prongs of Schedule I are at issue, "no accepted medical use," and "high potential to abuse."

      Much more information available at

      I am not currently Licensed to Practice in this State. Or Yours.

      by ben masel on Wed Jun 08, 2005 at 11:22:10 AM PDT

      [ Parent ]

      •  Do either of these options (none)
        have any chance of happening before 2006?  I get the sense that no medical marijuana legislation will pass before we have a Democratic Congress, and as long as W is still there, nothing will get changed there either.
  •  Breaking: House Vote Next Week (none)

    Marijuana Policy Project Take Acion link

    I am not currently Licensed to Practice in this State. Or Yours.

    by ben masel on Wed Jun 08, 2005 at 04:48:35 PM PDT

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