States’ rights
When you show me the part of the Constitution that enumerates the federal government’s power to regulate in-state medical issues, I’ll let you go back to arguing that Scalia and Thomas are OI strict constructionists. Until then, it looks to me like they’re at least as willing to set aside constitutional philosophy for personal preference as any other justice.
Equally laughable are Ginsburg’s and Souter’s recent love of states rights.
Update: The Clam is happy to have lost.
January 17th, 2006 at 2:33 pm
Uncle and Tom are both wrong. This case has nothing to do with the Constitution or states’ rights, only with the interpretation of a federal statute.
January 17th, 2006 at 2:38 pm
Then why did Kennedy write:
I’ve not read the whole thing yet.
January 17th, 2006 at 2:40 pm
Key phrase: “far-reaching intent.” They were talking about what balance Congress WANTED to alter, not whether or not it had the legal authority to do so.
January 17th, 2006 at 2:56 pm
The first dissent addressed the states rights issue:
[quote]The Court’s decision today is perhaps driven by a feeling that the subject of assisted suicide is none of the Federal Government’s business. It is easy to sympathize with that position. The prohibition or deterrence of assisted suicide is certainly not among the enumerated powers conferred on the United States by the Constitution, and it is within the realm of public morality (bonos mores) traditionally addressed by the so-called police power of the States.
But then, neither is prohibiting the recreational use of drugs or discouraging drug addiction among the enumerated powers. From an early time in our national history, the Federal Government has used its enumerated powers, such as its power to regulate interstate commerce, for the purpose of protecting public morality–for example, by banning the interstate shipment of lottery tickets, or the interstate transport of women for immoral purposes. Unless we are to repudiate a long and well-established principle of our jurisprudence, using the federal commerce power to prevent assisted suicide is unquestionably permissible.
The question before us is not whether Congress can do this, or even whether Congress should do this; but simply whether Congress has done this in the CSA. I think there is no doubt that it has. If the term “legitimate medical purpose” has any meaning, it surely excludes the prescription of drugs to produce death.[/quote]
Cites ommitted and carriage returns inserted for easier reading.
January 17th, 2006 at 3:42 pm
If the shoe had been on the other foot, and the state statute been one that Scalia and Thomas liked, I can about guaran-damn-tee you that they would have cited lack of federal authority in upholding the statute, no matter what other precedent existed.
January 17th, 2006 at 3:46 pm
I concur with Tom. As originalists or whatever we’re calling them this week, I would think they should have made it such an issue.
January 17th, 2006 at 4:30 pm
Supreme Court upholds State?s Rights! Though the positions ar
Generally speaking people on the Right or Conservative side of the political spectrum believe in state rights. Anything not specifically enumerated in the Constitution of the United States should be decided at a state level, at least that is the visi
January 17th, 2006 at 4:32 pm
Tgirsch and Uncle can guaran-damn-tee anything they want, but the bottom line is that courts don’t generally grasp for new constitutional issues every time they could conceivably do so. Quite the opposite, in fact; one of many issues just about every liberal/conservative/moderate/otherwise judge can agree on is the doctrine of constitutional avoidance, which says never rule on constitutional grounds if you can decide a case without relying on it. Here, a majority ruled that Congress did not intend to X, so the question of whether Congress did or did not have the constitutional authority to X was moot. It’s a good thing, too, as the only legitimate basis for a constitutional objection – the Tenth Amendment – had already been judicially nullified in Wickard v. Filburn, which judicial nullification was reaffirmed as recently as last year in Raich v. Ashcroft.
Even where a constitutional objection is potentially viable, and may be necessary for a correct holding, judges generally don’t insert it into the mix at the last minute if that’s not what the original case was about. As you may recall, Gonzales v. Raich was a 6-3 decision, but U.S. v. Oakland Cannabis Buyers’ Cooperative, which, like the current case, focused on Congressional intent rather than the Constitution, was 8-0. If Tom’s guaran-damn-tee were worth the ones and zeroes it’s typed on, Raich should have been decided unanimously, as well (or, possibly, decided 8-1, with Justice Breyer dissenting). How else do you explain Justices O’Connor, Rehnquist and Thomas all ruling in 2001 that Congress intended to prohibit states from allowing medical marijuana, only to turn around and rule four years later that Congress lacked any constitutional authority to do so?
January 17th, 2006 at 4:53 pm
Well, that would explain why our system is broken.
January 17th, 2006 at 5:30 pm
Only if by “broken” you mean the courts aren’t grabby enough with the Constitution. Some of us see the rule more as damage control.
January 17th, 2006 at 5:56 pm
How so? It seems to create a standard that doesn’t look at whether crap should be allowed in the first place.
January 17th, 2006 at 6:15 pm
Right – but only in the sense that it only gets looked at in the last place. The alternative is a hyper-activist court that rules not only on the facts before it, but also on hypothetical facts which may come before it later, and should be afforded a full hearing on the merits if they do. It’s fine for courts to rule on whether or not Congress had the power to enact a law that does X, but not until they determine that Congress has actually done so. By requiring each court to limit its ruling to the issues squarely before it, we prevent any one court from amassing disproportionate power. Legislatures make pronouncements on hypothetical issues; judges are not supposed to do so.
January 18th, 2006 at 7:36 pm
So, essentially, if a case comes before the court, and the case involves a dispute over a law which some or all justices believe is unconstitutional, they’re not supposed to say anything to that effect unless one of the complaintants specifically complains that the law is unconstitutional? Otherwise it’s “pay no attention to that unconstitutional law behind the curtain?”
That may be how it is, but I’m not sure that makes much sense.
January 18th, 2006 at 9:01 pm
It may have its problems, but the alternative may be worse. Do you really want judges ruling laws constitutional/unconstitutional based solely on their gut feeling, without first hearing the best arguments each side can muster as to why the law is or is not constitutional?
January 19th, 2006 at 3:14 pm
When you show me the part of the Constitution that enumerates the federal government’s power to regulate in-state medical issues, I’ll let you go back to arguing that Scalia and Thomas are OI strict constructionists.
Scalia, I’ll grant, but didn’t Thomas dissent in Raich?
January 19th, 2006 at 7:30 pm
X:
Not exactly, but I’m not sure that’s what we’re talking about here. I don’t think anyone should ever declare a law unconstitutional on a “gut feeling,” but on a rational position that it is, indeed, unconstitutional. They certainly need to be able to defend their decision to make such a declaration. But I’ve got to think there’s some middle ground between “pay no attention to the unconstitutional law behind the curtain” and justices striking down laws on a whim. For one thing, that’s why you need five of them to strike one down.
January 19th, 2006 at 11:47 pm
Perhaps so, but bear in mind that unless we have one rule for obvious elephants, and another for less obvious, potential ones, it’s better for the judges to reserve judgment on every issue that has not been fully litigated. Wait for the case where the constitutionality of X will determine the outcome, and maybe then both sides will put forward the best possible arguments for each side. Then, and only then, can we reasonably expect the Justices to render the best judgment they are capable of. That is not the situation here. Oregon won without the constitutional issue, so it would have had little incentive to vigorously assert the Tenth Amendment argument, particularly given the recent precedent of Raich. The federal government, on the other hand, had every reason to vigorously defend the constitutionality of preemption, since losing on that issue would not just mean losing this case, but Congress losing its ability to change the law later. That’s a formula for an artificially anti-Tenth Amendment decision.