Monday, June 06, 2005

So much for the "new federalism"

It is a sad day for liberty.

Then again, it was a sad day for liberty back in the 1930s, when the Supreme Court set the precedent for this decision in Wickard. It was always going to be tough to persuade the court that Congress has the right to tell you not to grow wheat on your own land for your own consumption, but it doesn't have the right to tell you the same thing for marijuana.

I think Randy Barnett successfully distinguished the two cases, because there is a legal interstate market for wheat, and the reason people weren't allowed to grow their own was to force them to buy, and therefore raise the price; that was a terrible decision, but had at least a certain perverse logic to it. In this case, though, the interstate market is illegal, and Congress isn't interested in controlling the price, it's interested in eliminating it altogether. Congress isn't telling Raich to buy her pot instead of growing it, it's telling her not to use it at all, which is very far from "regulating interstate commerce".

I'm glad and not at all surprised that Thomas saw things this way, and dissented from the decision; I'd love to see him as the next Chief. And I'm not at all surprised to see Stevens write the majority decision, joined by Souter, Breyer and Ginsburg. But I'm mightily disappointed at Scalia and Kennedy, who've been champions of the "new federalism", for stepping back from this opportunity to roll back just a little of the New Deal.

2 Comments:

Blogger C.M. Burns said...

Scalia's going with the majority is particularly dishartening. Reading other blogs who think of the Court in partisan terms are shocked, SHOCKED I tell you, that Thomas would vote differently than Scalia (because they're both Republican puppets, see) and that he would dare vote AGAINST the government. If Scalia had voted against, their heads might have exploded. I'm also seconding that Thomas would make a fine Chief Justice. He's so much smarter than the people who hate his (like Harry Reid), it's hilarious.

Mon Jun 06, 02:32:00 PM 2005  
Blogger Kodos said...

Thomas wrote: "If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything--and the Federal Government is no longer one of limited and enumerated powers.". Whew. Thomas for Chief Justice.

Tue Jun 07, 06:45:00 AM 2005  

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