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A Libertarian on the Bench

Arizona jurist Clint Bolick targets judicial pacifism in medical marijuana case.

Arizona Governor's OfficeArizona Governor's OfficeIn January 2016 Arizona Gov. Doug Ducey (R) appointed the veteran libertarian lawyer and legal theorist Clint Bolick to a seat on the Arizona Supreme Court. A few days before Bolick was officially sworn in, I asked him how he planned to approach his new job. "The role of a justice is to give effect to every single word in the Constitution," he told me. "I believe that the written Constitution reflects the social contract that people have made with each other and with their government. And just as with any contract, a judge's role is to enforce that contract vigorously."

In the recent case of Arizona v. Maestas, Justice Bolick had the opportunity to practice the judicial vigor that he preached.

At issue was the 2014 arrest of an Arizona State University student named Andre Lee Juwaun Maestas. Under the terms of the Arizona Medical Marijuana Act (AMMA), a voter initiative passed in 2010, Maestas was a valid medical marijuana cardholder. That meant that he was legally allowed to possess 2.5 ounces of "usable marijuana." Yet Maestas was arrested after university police found 0.014 ounces of marijuana in his dorm room.

Why did the police arrest a valid AMMA cardholder for this seeming non-offense? They arrested him because in 2012 the state legislature amended the AMMA to forbid all medical marijuana use and possession on state college and university campuses.

Now here is where the judiciary comes in. Per the Arizona Constitution, the state legislature may only amend a voter initiative if "the amending legislation furthers the purposes of such measure." The question before the Arizona Supreme Court in the Maestas case was whether the 2012 criminalization law was at odds with that provision from the state Constitution.

The Arizona Supreme Court held that it was. "Criminalizing AMMA-compliant marijuana possession or use on public college or university campuses plainly does not further the AMMA's primary purpose," the Arizona Supreme Court ruled in Arizona v. Maestas. "We hold [the 2012 law] unconstitutional as applied to the student/cardholder in this case."

Justice Bolick joined that opinion in full. He also wrote separately in concurrence in order to address a larger legal issue raised by the dispute: Namely, just how much deference does the judiciary owe to the legislature in a case like this?

According to the state of Arizona, the judiciary owed total deference to the lawmakers here. In the state's view, the legislature alone enjoys the power to establish and maintain "a general and uniform public school system." Criminalizing marijuana use on public campuses, the state insisted, should be immune from judicial review because it is a non-justiciable "political question."

Also known as the "political question doctrine," this particular argument for judicial abstinence has its origins in U.S. Supreme Court caselaw. In Baker v. Carr (1962), for example, SCOTUS said that the courts should generally stay out of those cases that involve "a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it."

In his Maestas concurrence, Justice Bolick basically delivered a massive judicial benchslap against the political question doctrine. To avoid hearing or deciding a case because of "a lack of judicially discoverable and manageable standards for resolving it," Bolick declared, "implies that the matter is not constitutionally entrusted to another branch, but that for prudential reasons we should not decide it anyway, leading to the inevitable consequence that another branch of government will decide the constitutional limits of its own power."

In Bolick's view, the courts should have no part of any doctrine that commands that sort of result. "When the judiciary fails to interpret and enforce constitutional rights and limits," he wrote, "it shrinks from its central duty and drains the Constitution of its intended meaning." In an appropriate future case, Bolick concluded, "I would reexamine the prudential requirement of our political question doctrine to determine whether it comports with our constitutional design."

It's the same thing that Bolick told me two years ago. The proper role of a judge does not involve dodging so-called political questions—it involves vigorously enforcing constitutional limits when the political branches step out of line.

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  • Fist of Etiquette||

    ...leading to the inevitable consequence that another branch of government will decide the constitutional limits of its own power.

    If the people didn't trust the legislature why did they elect those lawmakers?

  • Rich||

    *** scratches head ***

    Because they CAN?

  • loveconstitution1789||

    Those legislature seats always have to be filled.

    In other words, even an unchallenged legislator can be elected by 1 vote and 1M no votes.

  • Sometimes a Great Notion||

    Got to elect somebody.

    -paraphrase Nelson Muntz

  • Scarecrow Repair & Chippering||

    People ought to stop thinking of judicial activism as such, and start thinking that the purpose of a President/Governor veto and judicial review is to repeal and veto as many laws as possible; a last ditch effort to prevent unconstitutional laws from being passed. That was one of the one original stated purposes of the President and it's time it came back. As Robert Heinlein said in The Moon Is A Harsh Mistress, make it easier to repeal bad laws than pass new laws.

  • Rich||

    How about (also) making a meta-law that every law expires in a time inversely proportional to the length of its text?

  • Citizen X||

    Just make 'em all sunset every year, with the option to renew following a period of debate.

  • Scarecrow Repair & Chippering||

    Yu have to also make laws inseparable, so that if any part is found unconstitutional, the entire law is voided. Otherwise the pols would just throw all existing laws into one new law so renewal every year is easier.

  • Eidde||

    Ideally, every branch of government should protect the public from all the other branches, though what Madison didn't seem to foresee was the the human tendency of buckpassing and not-my-problem-ism.

  • Eidde||

    (Which are subcategories of Sloth, one of the 7 deadlies)

  • sarcasmic||

    Madison thought the branches would check each other. He never foresaw them colluding.

  • Libertymike||

    Hence, how much confidence, faith, and trust should one repose in him?

  • sarcasmic||

    As Ben Franklin said, we can't escape death or taxes. With the writing of the Constitution Madison did his best to create a limited government, and it has worked better than any other attempt in recorded history. For a large population.

    Doesn't matter what people create. People later down the line will corrupt and destroy it. It's a basic law of humanity.

    I think he had some great ideas. Wasn't perfect, but nothing is.

  • Marty Feldman's Eyes||

    Doesn't matter what people create. People later down the line will corrupt and destroy it. It's a basic law of humanity.

    Sounds like someone watched last night's Westworld- "Strike the Match".

  • loveconstitution1789||

    The Founders foresaw government branch collusion toward tyranny. The solution is described in the Declaration of Independence:

    "That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security."

  • Sam Haysom||

    Well seven justices behaved like libertarians this morning. Jackbooted thuggery dismantled. Righteousness prevails.

  • Shirley Knott||

    CNN reportedthe 7-2 decision as close.
    smdh

  • loveconstitution1789||

    The media is so freaking out about this, they have also labelled this a narrow opinion.

    Except that every business and person everywhere in the USA can not be regulated in a manner that infringes on their religious expressions. "The government, consistent with the Constitution's guarantee of free exercise, cannot impose regulations that are hostile to the religious beliefs of affected citizens and cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices."

  • PaulTheBeav||

    Sounds like a fine replacement for Kennedy.

  • BestUsedCarSales||

    Arizona in the news!!!

  • Procyon Rotor||

    I believe that the written Constitution reflects the social contract that people have made with each other and with their government.

    Not a fan of Lysander Spooner? Not a real libertarian! (Only kidding. Mostly.)

  • Robert||

    Also known as the "political question doctrine," this particular argument for judicial abstinence has its origins in U.S. Supreme Court caselaw. In Baker v. Carr (1962), for example, SCOTUS said that the courts should generally stay out of those cases that involve "a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it."


    Lemme get this straight: Gov't makes a law that says something in its instructions, but if you take it to a gov't court, it can't rule on that something, because it hasn't ruled on it so far, so whoever it's instructing gets to do whatever they want about it?

  • Architect of Liberty||

    It's not so much a social contract between the people and their government as it is a compact between the states that established the government.

    Big difference.

  • The gouch||

    Just anoter "DUMBOCRAT"!!!!

  • simplybe||

    The Constitution of the United States is NOT a social contract between the people. For one if I am not mistaken it was voted down by Massachusetts. Secondly at the time it was adopted only landowners had the right to vote. No slaves, no free blacks, no women and if I am not mistaken no Irish or indentured servant. Last up not least it has so mutilated by the likes of Lincoln and Franklin D Roosevelt that the Founding Fathers would probably want to start another revolution with the exception of Hamilton of course. If Burr hadn't killed him we would probably already be living in Dictatorship. And before all you PATRIOTS get pissed try studying the true history of our government.

  • Johnimo||

    I don't think Lincoln acted as a "mutilator" of the Constitution. He did act outside of his Presidential authority in blatant ways, unlike Roosevelt who was able to get legislation passed in clear violation of the Constitution. Put another way, Lincoln acted bad, but Roosevelt AND the legislature AND the courts acted bad.

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