Actually they were not essentially the same. The wheat in Wickard was grown on a commercial dairy farm for feed and the excess was sold. The marijuana in question was grown exclusively for personal use and was not sold.
Though I’m sure Bush would nominate him in a heartbeat, I’m not convinced Gonzalez wants it, for various reasons ranging from professional (my sense is he preferred the political/administrative side to the judicial) to personal (he’s said not to be too fond of life in D.C., and it looks to me like it’s taken a toll on him).
I seriously doubt Gonzalez would be subject to any serious filibuster threat, though he’d again be grilled on the torture stuff, with ample justification.
Agreed. He is tremendously loyal to Bush, but he is not a social conservative activist.
The farmer in Wickard sold some of his excess. The LAW at issue in Wickard, and upheld by the court, forbid wheat grown exclusively for personal use and not sold:
Cameron, Cover and Segal did an extensive statististical analysis of Senate roll-call votes on Supreme Court nominations beginning with Earl Warren and ending with the nomination of Anthony Kennedy. Here is an excerpt from their findings:
The same website that quoted the study had interesting information about previous Presidential Supreme Court nominations. Clinton, for example, consulted with leaders of the Republican Party to gage how his nominations would fare.
But I found this bit of info particularly interesting:
But the facts were not essentially the same:
Commercial farm vs non-commercial personal use.
And what is your comment about the language in Wickard that says:
That it was wrong to extend the commerce clause to include non-commercial activities. What that has to do with the essential facts in the cases being different is beyond me.
Not that case, although cases covering more or less the same ground WRT to the gradual expansion of Congress’ regulatory powers via the Commerce Clause in the 20th Century were covered in Constitutional Law.
Obviously, the situation here is the same. Those who grow their own doobage for medical purposes are, in effect, competing with the hardworking commercial pot growers, smugglers, distributors and street-level retailers from whom they would otherwise be obliged to purchase their medicine, and Congress may properly have considered the purpose of stimulating this trade in its decision to outlaw medical marijuana. 
That’s not the test, and it hasn’t been in a long time, except for a very brief period when Rehnquist went on the commerce clause warpath. http://boards.straightdope.com/sdmb/showpost.php?p=6251645&postcount=161
I realize that but still the cases did not have essentially the same facts. Growing wheat on a commercial farm for commercial use is not essentially the same as growing marijuana in a personal garden for personal use.
I agree. If you parse it closely enough, nothing is really the same as anything else. Problem is, here is what the *Wickard *court was talking about:
(Emphasis added.)
The only issue that the court thought it was deciding was the extension of the act to productino not intended in any part for commerce but wholly for consumption on the farm. The rest of the statute was easily sustainable under Darby.
Here are the parties’ arguments:
In other words, the *Wickard *court was not considering the constitutionality of “growing wheat on a commercial farm for commercial use.” It was, at best considering growing wheat on a commercial farm for personal use.
The court went on to consider the effect of consumption of homegrown wheat on interstate commerce.
Where did you get the idea that *Wickard * involved commercial use of wheat? The whole point of *Wickard * is that it extended the commerce power to a farmer eating wheat grown on his own property.
Look, Random said:
I disagreed with that statement, the facts of the two cases are not essentially the same. A large commercial farm is not essentially the same thing as a small personal garden.
I understand what the court ruled and I understand the legal test. They chose not to legally distinguish large scale commercial farms from small personal gardens but that does not make those two activities essentially the same.
Yeah. You are right. There is a difference there, though not in the court’s eyes. The issue is whether the Court is willing to examine individuals affected by a law or only the entire class of activity covered by the law. You can read the pot case as rejecting an as-applied approach to commerce clause jurisprudence. There was some discussion of this issue in some of the post-Lopez appellate cases because the Court’s approach was less than predictable. I cited some of those cases in the thread that I referenced earlier.
But that’s what it boils down to. The Court kept talking about classes of activities because when you look at any activity as a class of conduct, you can aggregate the effects of the conduct on interstate commerce. It also favors legislation that paints with broad strokes, the more general the class of activities covered, the more likely that aggregated activities will be found to substantially affect interstate commerce and their regulation necessary and proper to that task.
No. The ruling was a lot more technical than that:
They said that they didn’t consider Wickard a commercial farmer in Wickard. This quote dovetails nicely with the quote from *Wickard * that I posted earlier. Instead, they considered the activities as an aggregate with other activities, refusing to consider the facts of the individual cases. This case is about a statute–not the parties. So, yes, the Court didn’t buy the distinction between a commercial farm and a pot garden, but it did so because it doesn’t care who is attacking the statute is as a person. It’s all about classes of activities.
The Court did not consider Wickard a commercial farmer any more than it considered Raich a homegrower of pot. The *Wickard * Court thought of Wickard as someone asserting that growing wheat for personal use should not be within the Commerce Power; the Raich court thought of the pot growers as people asserting that they ought to be able to grow pot for their own personal medical use or for the use of others who have a prescription. In both cases, the Court found that the activities, when taken in aggregate, substantially affected interstate commerce.
Well no, that’s not what was requested. Diogenes the Cynic asked for some examples of liberals :“legislating from the bench?”. However, for your benefit I’ll expand it further.
If you compare the SC vote on eminent domain to their general voting record (see rating) you will see that Rehquist (23.1), O’Conner (34.6), Scalia (29.7) and Thomas (27) are the conservative judges and Ginsburg (61.4), Breyer (63.4), Stevens (62.8)Kennedy (36.5), and Souter (54) are the liberal judges. The scale reads from 0 to 100 (conservative to Liberal).
The idea that this decision is an example of legislating from the bench is best summarized by O’Conner’s dissenting opinion in the case:Washington Post snip
“Today the Court abandons this long-held, basic limitation on government power,” she wrote. “Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded – i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public – in the process.”
The effect of the decision, O’Connor said, “is to wash out any distinction between private and public use of property – and thereby effectively to delete the words “for public use” from the Takings Clause of the Fifth Amendment.”
She’s overstating the case and being quoted out of context. In her dissent she said:
http://straylight.law.cornell.edu/supct/html/04-108.ZD.html
The rest of her opinion is devoted to distinguishing *Midkiff *and Berman. This is not new stuff. But I suppose I am begging the question here. Whenever the public/private line was blurred, did the Court “legislate”?
Well let’s look at it a couple ways.
First, stict textual construction IMO requires a look at the actual words in the Constitution:
Interesting, it says property can’t be taken for public use, without just compensation. It doesn’t say property can’t be taken for private use at all, where is that in the text? You might find this construction extreme, but remember a clause that said “Excessive bail shall not be required.” was held not to require bail in every case, but only to require that if bail is set, it be reasonable. http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=342&invol=524#545 Therefore, the strictest reading of the language is that if the government takes land for a public use, it must provide just compensation–otherwise it doesn’t have to pay anything. That means that the “public use” requirement itself can be construed to be judicial legislation.
Second, the Court claimed to be interpreting the “public use” language. It didn’t say, “We disagree with the public use requirement, so we are striking it from the document,” it said, “we are trying to figure out what public use means, and we think it includes this case.” It is trying to do its job. In this case, the results are unpopular, but that doesn’t turn interpretation into legislation. Similarly, it had to decide to read “public use” as a limitation on the takings power instead of a limitation on which cases require compensation to be just. In both cases, it took into account things like general economic information, general ideas about how the government should work, common sense, and interpretive principles. That’s not legislation. I bet you had less trouble with the denial of bail case, right?
New improved coding 
. Same old story (with minor edits):
I’m totally fine with unwinding Wickard. In fact, in light of recent events, it would probably have little effect. Fox article; NY Times If Congress wants to force the states to enforce its safety, health, and welfare agenda, it can simply condition federal funding on the states’ compliance.
While the Court has discussed a relatedness limitation on Congress’s power to provide for the general welfare through the spending power, few think the limitation has any teeth.http://www.utexas.edu/law/journals/tlr/abstracts/82/82engstrom.pdf (pdf) (evaluating substantive limitations on regulation under the spending power: ); http://www.yalelawjournal.org/pdf/110-7/smith%20final.pdf (pdf) (same); http://caselaw.lp.findlaw.com/data/constitution/article01/26.html#t558 (though the Court evaluates conditions on spending for relatedness to purpose of spending, the Court has never invalidated a condition on relatedness grounds).
It seems that Congress would like to sit as a super-supreme court. It’s as if, as William Burroughs described, a man had learned to talk through his asshole. At some point, the asshole takes over and the mouth becomes obsolete. http://www.kilbot.net/writing/asshole.php (Contains naughty words and a recording of someone saying them). The question remains, which end is up?
First, I consider Wickard to be a reductio ad absurdam of Commerce Clause jurisprudence, and the California medical marijuana cases to be going beyond even Wickard. But I also consider that Wickard is a red herring on the circumstances here, which deal with eminent domain rather than interstate commerce.
The issue to me is whether economic development is a legitimate public purpose, justifying eminent domain. Remember that a total rejection of the idea would mean that any slum property could not be condemned by eminent domain so long as the slumlord is unwilling to sell (and he can always find people desperate for a place to live who will pay for his substandard apartments). At the other extreme, the house and business of a man who is disliked by the Mayor and City Fathers can be taken under the justification that someone they do like has proposed something more valuable to the community on his property under some nebulous economic development plan, and it would be 100% constitutional to do so. Hence the right to property becomes totally vitiated.
I believe there is a reasonable compromise that can be founded on good constitutional grounds, and that the present Supremes are the ones who can figure out how to define it. I do not at the moment feel comfortable defining what that compromise ought to be.
The operative word being “substandard”. If they violate some building code, they can be condemned on safety grounds. If they are simply below your own personal standards, that’s another matter altogether. OTOH, if the property is safe, and the people living there don’t want to sell, perhaps the real problem is that they haven’t been offered proper value in exchange.
Everything is for sale at the right price. The principle of using eminent domain for economic development simply allows one private party to force another private party to sell his property below the value it has to him.