Well, except of course that under your formulation the legislature can’t solve it. State legislatures, yes. The legislature, no.
ISiddiqui:
…Which is why I specified that it’d be a much better argument if the doctor’s office was the only one in town. That does make it necessarily open to the public, in some meaningful way.
The answer would be, to all practical extents and purposes, nothing. That was Scalia’s point exactly. The ability to regulate non-economic matters which have some impact, not necessarially significant impact, on interstate trade is enough. We’ve seen this logic used when a resturant was getting supplies from out of state to regulate what the resturant does with the finished product.
Basically this line of reasoning is a blank check. Just like SDP and various penumbras and emanations.
No, I’m pointing to results that a vast majority don’t like and suggesting the court’s decision should not be modified. If you get rid of Wickard, things like that are open. It’s because removing it would lead to many results that most people would not like, the process should continue, even if once in a while a decision is made, using that process, that people don’t like.
Basically, getting rid of Wickard is an extreme reaction and I have a feeling that most people haven’t totally thought it through and what it would mean.
Scalia’s point? He was with the majority, you know? He distinguished this, saying it was an economic activity, unlike carrying a gun (Lopez) or beating your wife (Morrison).
Bricker you do see the distinction between handing a blank check to the Federal Government to regulate anything at all and requiring the Federal Government to have a rational basis to violate Due Process, correct?
No its not the same process. The Court in this case took another step and gave the Federal Government power that was clearly left to the States. In the other cases you have cited the Court extended rights found in the Constitution and through the 9th amendment. Thats a pretty big difference.
I noted the historical phenomenon by which the faction that is not in control of the government tends to favor states’ rights, while the faction in power tends to oppose them here .
My problem is that the Court kind of did that with *Lopez *and Morrison
I had problems with some of them myself.
Just as the Court had the power to decide Lochner and its progeny. But your point is well taken. You can’t complain about the principal of judicial review only when you don’t like the results. That’s what was so baffling about Schiavo. The sides got reversed (sort of) and all of the sudden the folks who had been arguing for judicial restraint were instead arguing for activism–but they kept using the same words to do it.
Amen.
Wow. We’re in complete agreement about the principles. I agree that the states should be regulating this, and taking it from them is an example of paternalistic-big government. But as a matter of policy (and preference) I think pot should be legal. Wouldn’t it be great if I could move to a state where it was–you could live where it was illegal, and I could live where it was legal, and we’d both be happy (about pot, anyway).
Are the words really helpful in this case? They seem kind of abstract, and subject to, well, interpretation. And one might expect the meaning of a concept like interstate commerce to stretch over time.
Didn’t complete the thought here (damn work). I meant to continue: the Court keeps repeating the same language and coming to differing results, which robs the language of meaning.
This has been very interesting and informative reading for me.
Thanks to all who responded and provided such a wealth of legal cases, etc. for me to find and read up on.
Not a lot of powder atm, so I have some free time to plow through all this. Based on what I’ve read so far tho, I don’t think my opinion will change (that this was a bad decision based on a precedent set from arguments that wouldn’t hold as much water as a tissue paper sack).
Hijack: There’s no “almost certainly” about it. Law professor Barry Cushman effectively debunks the notion that Roberts’s switch was motivated by the court-packing plan, attributing it instead to a gradual jurisprudential shift away from the overly simplistic public-private distinction in an era of legal realism. As evidence, Cushman points, inter alia, to a vote that was taken on West Coast Hotel before the court-packing plan had been formulated – Justice Roberts voted with the New Deal appointees.
Interesting. Haven’t read the book to evaluate the effectiveness of his arguments. I have always been a little dubious of claims that one historical event “caused” another. I remember reading something about this in A People’s History of the Surpreme Court, but I don’t recall the details. I’ll have to read and reread accordingly.
In my cynical mode. If people would get busy and find out what substances in marijuana are effective in this area, drug companies could manufacture it and sell it at a profit, like they do morphine, etc. Voila! The problem is solved.
Unfortunately I think experimentation with and study of marijuana is also poses some legal risks.
That does make it necessarily open to the public, in some meaningful way.
He distinguished this, saying it was an economic activity, unlike carrying a gun (Lopez) or beating your wife (Morrison).