... can be found over at SCOTUSblog.
At the Volokh Conspiracy, David Bernstein kicks off his Raich deconstruction with a sharp slap of observation -- "The five-member majority of the Court simply does not take federalism seriously" -- and then goes on to rip Antonin Scalia a fresh new orifice:
This reflects a pattern with Scalia, apparent also in his affirmative action, First Amendment, and other opinions: he is much more likely to resort to originalist arguments when they can be used to undermine Warren Court precedents that conflict with his deeply held moral and political views than when such arguments would either undermine his political views or challenge precedents that are not on the social conservative (tempered, as in First Amendment cases, by Scalia's academic elitist solicitude (which I share) for freedom of expression) "hit list." [...]
It seems we do to some extent live under a system where the personal preferences of the Justices, having nothing to do with the history, text, or logic of the Constitution, dictate when the Supreme Court will or will not intervene to overturn particular regulations.
Bernstein also states the obvious nicely here:
The drug war has run roughshod over the civil libertarian accomplishments of the Warren Court, leading to a weakening to various degrees of the First, Second, Fourth, Fifth, Sixth, and Eighth amendments, not to mention a huge increase in the prison population, and the denial of the basic right to use relatively innocuous recreational drugs, even for medicinal or health purposes.
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|6.6.05 @ 4:22PM|#
damn activist judges at it again.
the four most activist (Stevens, Breyer, Ginsberg, Souter) voted for the Federal Government.
while the conservatives, were all over the place.
Thomas (most conservative) - CA
Scalia (second most) - the Feds
Rehnquist (third) - CA
Kennedy (fourth) - the Feds
O'Conner (fifth) - CA
talk about flip/flop.
|6.6.05 @ 5:03PM|#
So much for the notion that Thomas operates in servile obedience to Scalia. Thomas's dissent is spot on, and takes obvious aim at Scalia's woeful and deficient analysis.
Warren|6.6.05 @ 5:16PM|#
Damn Straight! Bernstein's rebuke is spot on.
|6.6.05 @ 5:28PM|#
the states have(and therefore direct democracy) whatever rights indirect democracy says it does. The justices have whatever rights to invent law as they make it up and their arguments sounded really really nice.... it is all within the bounds of the social contract yall have agreed to by staying within the country, but it is all subject to change, should the supreme courts change their minds again you will definitely have different rights, but that is subject to change as well....
|6.6.05 @ 5:30PM|#
"and the denial of the basic right to use relatively innocuous recreational drugs, even for medicinal or health purposes."
That's covered by the Ninth Amendment. The Ninth has been pretty much ignored since it was ratified, so it would be uncharitable to say the War On Drugs has weakened it. But, what the hell, I'm not feeling charitable. That puts 7 of the 10 items in the Bill of Rights as war casualties. I'm sure we can find examples where the other 3 have lost toes in this fucked-up war, too.
Mike|6.6.05 @ 5:32PM|#
the four most activist voted for the Federal Government, while the conservatives, were all over the place.
Activist != Liberal, obviously. Since the whole point of the post was that Scalia is as activist as anyone.
|6.6.05 @ 5:46PM|#
I hope this will show libs (i.e. Mr. Soros) why the WOD is not a conservative-liberal battle.
Even if the Court was a bunch of Ginsberg clones and every House member was a Democrat, nothing would be different - hell it would probably be worse.
|6.6.05 @ 5:52PM|#
That depends. If they were Allen Ginsberg clones, there's no way they would have ruled against medical marijuana.
|6.6.05 @ 6:18PM|#
That puts 7 of the 10 items in the Bill of Rights as war casualties. I'm sure we can find examples where the other 3 have lost toes in this fucked-up war, too.
Well, the current case is exactly about the Tenth Amendment. A state has taken it upon itself the power to regulate a drug for medicinal uses. The Constitution grants no power to the United States to regulate either drugs or medicine. Nothing in the current case has anything to do with any state or commerce other than California.
You'd be hard pressed to find a better test case for the Tenth Amendment. Six justices failed the test. Very sad.
|6.6.05 @ 8:35PM|#
damn activist judges at it again.
This was not judicial activism. This was an inappropriate act of judicial restraint. Instead of substituting its will for the will of the elected branches of government, the court went out of its way to uphold an action of the elected branches. If anything, the courts should be more activist in protecting individual rights from Congress and the president.
That puts 7 of the 10 items in the Bill of Rights as war casualties. I'm sure we can find examples where the other 3 have lost toes in this fucked-up war, too.
How long until we're forced to quarter DEA agents in our homes?
|6.6.05 @ 8:45PM|#
Scalia and Thomas differ in their views of stare decisis. Ruling against the government would require an intellectually honest judge to overrule Wickard, which Scalia views as settled precedent. Were Wickard overturned, our government would have to make massive changes. Thomas will reconsider every constitutional issue every time, the correct view in my opinion. But Scalia's decision is much more defensible than Bernstein or others here have argued. Without his stare decisis considerations, Scalia would surely have ruled with Thomas, as Thomas is correct as a originalist matter.
|6.6.05 @ 9:08PM|#
"How long until we're forced to quarter DEA agents in our homes?"
I'm sure there are owners of commercial property or rental housing that have had to house (or in legalspeak, "accommodate") law enforcement officials against their wishes. Stakeouts and stings take a lot of time, and we can't allow the selfish concerns of commercial and rental property owners to stand in the way of the holy mission to protect The Children from drugs.
|6.6.05 @ 10:33PM|#
They're not DEA agents but here in California any developer hase to quarter a certain number of people the state tells them to.
|6.7.05 @ 8:24AM|#
It would be nice if DEA agents were indeed quartered, or at the very least a few hours on the rack.
M. Simon|6.7.05 @ 12:41PM|#
Jason,
The actual judicial activism happened in the 1870s when the meaning of "Commerce" was changed.
This ruling just supported that change of meaning.
Thomas was excellent in speaking to those ideas. He is a Constitutionalist.
Scalia of course is not a Constitutionalist he is a Conservative. He rules according to his ideas of morality not the plain meaning of the words.