Hey, I didn’t mean for this to descend into a snark fest as I do value your input. So, let’s see if we can do this *sans *snark…
On no one being surprised about the decision in Raich: That’s not at all the same as agreeing that it was the correct decision, or the best decisions if you prefer. And surely Sandra O’Conner is well aware of the jurisprudence in that area, so is there a point you are trying to make? If so, I’d be interested in an elaboration, because I don’t see the point.
On the purpose of the constitution: Certainly the articles of confederation placed a greater limit on the authority of the federal government, but that does not mean that the feds gained ultimate authority once the constitution was ratified. The court often does defer to the states (in fact *Kelo *is a good example). And one might argue that “securing the blessings of liberty” is another way of saying “limiting the power of the central authority”-- a very common refrain heard not only by many of the framers, but by more than a few people even today. So, yes, I do think that one of the main purposes of the constution is to limit the power of the feds. There are other purposes, too, to be sure, and I’ll certainly concede that I should have said “one of the purposes” instead of “the purpose”. But it would be incorrect to say that limiting the authority of the feds is not one of them.
The fact that O’Connor has a more restrictive take on the Commerce Clause than the Court as a whole hardly negates the point that the outcome of the case was no surprise to anyone who knows the precedents. Any number of 8-1, 7-2, 6-3, and even 5-4 decisions are no suprise in their outcome.
As to the federal/state power divide under the Constitution, I would start by reminding you that you are the one who made the unsupportable claim that “the purpose [note the singular] of the federal consitution” was “to limit the power of the feds in favor of the states.” If you want to have a nuanced discussion of the Constitution, you probably shouldn’t start off by throwing out nuance in favor of blanket assertions.
Second, you’re not going to find any serious person arguing that the Constitution permits the federal government to exercise limitless authority vis a vis the states, so pointing out that the feds have limited power proves precisely nothing. The issue is always what they can and cannot do in the real world. And it ought to be pretty clear by now that regulating drugs is something that the federal government can certainly do, whether you agree with how they do it or not.
OK Minty, you through out the blanket statement that the feds can certainly regulate drugs. My question is if not some fatuous reference to commerce power, what exactly in the constitution grants that power. Say for instance pot grown wholly in one state for personal use. Just how does power to regulate commerce reach this?
Wickard v. Fulburn establishes that the Commerce Clause power permits Congress to regulate the entire market for an item of interstate commerce, not just the stuff that goes back and forth across borders. Homegrown weed is still part of the overall market for production and consumption of marijuana, and Congress can therefore regulate it.
I’m still not seeing in a textualist (thanks for the word, i can’t believe i forgot it) way of looking at the Constitution, primarily inter-state commerce, how it can be applied to fed. drug laws.
To me, the ‘reach’ of using privacy to address Roe v. Wade seems quite similar to the ‘reach’ of using inter-state commerce to address drugs.
And that if a textualist court is what is wanted by conservatives and is what we’re apparently going to get, it seems to me that both should be overturned and have the decisions reverted to the states.
I’m not on any cross. I freely admit that I started the snark, so I’m not taking any holier than thou approach, either. Just not in the mood of wading thru snark today, and I realized that when it starting flying back and forth. No biggie. There will be other opportunities to discuss this sort of thing.
Although there have been a few, the only case I can think of regarding the Supreme Court overturning itself is segregation. From what I remember learning in school, segregation was basically overturned because it was decided that “separate but equal” system wasn’t working. The black schools were poorly funded and giving poor eductions, while the white schools were just the opposite.
I was wondering if, with a different court obviously, a similar argument could be made for eminent domain. The system is unfairly stacked in favor of big business. However, the ElvisL1ves link indicates that the states themselves are largely rectifying the situation, so I guess unless those state laws get overturned, or businesses get around them with loop holes, such an argument couldn’t be used.
Most of the strongest objections to Kelo seem to come from conservatives opposed to judicial activism. But the 5th amendment only applies to the States because of activist decisions of the Court. So why do conservatives opposed to judicial activism want the Court to expand the incorporation of the 5th to a broad reading of the public use clause through a new activist decision? The eminent domain part of the 5th is only incorporated so far as the Court has incorporated it through activist decisions and it would take a new activist decision to expand the incorporation of the public use clause.
This is a point that, it seems to me, can’t be made too strongly. On politically sensitive issues dealing especially with Constitutional powers of and Constitutional restraints on federal and state action the decisions of the Supreme Court are fundamentally political decisions. Sometimes the Court gets ahead of the political consensus curve, as in the criminal procedure decisions made by the Court when Earl Warren was Chief Justice. Sometimes it is behind the curve and more or less puts the Court’s stamp of approval on trends already generally accepted, as in the Tennessee one-man-one-vote case and the Connecticut condom decision. Sometimes the Court goes right with the consensus as in Brown v. Board of Education or the Texas (Georgia?) sodomy case. In any event the decisions are informed by political considerations of what works in the real world and what the nation is ready to accept. The Court is granted difference, as in was during what could have easily become a constitutional crisis in the Nixon Administration, because it has been very careful not to get too far ahead of consensus. Roe v. Wade did not give rise to the hysteria we see today at the time it was decided. Clearly the Court was ahead of the curve in that case but not nearly so far ahead as it was in the criminal procedure cases. What the Court probably did not anticipate was a determined, vocal band of dissidents with an emotionally appealing argument, the Catholic Church’s retreat from the reexamination of dogma and a political alliance between great wealth (which has always carried a fair amount of weight in this country) and social-religious-sexual conservatism.
We may talk all we want about various theories of Constitutional interpretation but in the final analysis the arguments arising out of those theories are no more than rationalizations for an outcome. The rational that will be accepted is the one that leads to an appropriate result that the nation will accept. This, of course, in the irony in seeing people who condemn novel court action which gores their particular ox as unjustified judicial activism bellyache when the Court observes precedent and declines to accept a novel theory of Constitutional interpretation, as in the Connecticut condemnation case and the California pot growers case. To think that the Supreme Court operates in some theoretical sphere divorced from the political realities of the day and from the personal political judgments of the Justices is simply to ignore reality and the practical problems of government. Simply put, the theory of Constitutional interpretation that will prevail is the theory that gives a result that is in keeping with the nation’s political needs of the moment. The Court is just as much a political body as is the House of Representatives, it is just more deliberate and slower to act.