Monday, June 06, 2005

Judicial Activists Hate America

     This time it's true. This time, the judges looking to make their own law aren't trying to remake America in their own image - they've declared war on America and hope to see it ended as we know it.
     I'm speaking, of course, about the recent Supreme Court case on medicinal marijuana (PDF). In Gonzales v. Raich, patients on prescribed medicinal marijuana were raided by the federal DEA. In a 6-3 decision, the Supremes ruled that the feds had the right to ban the marijuana use and seize the drugs. It's interesting to note how the justices voted. Justices Stevens, Kennedy, Souter, Ginsburg, Breyer, and Scalia voted in the majority to uphold the DEA's actions. Ultra-conservatives Rehnquist and Thomas and mostly conservative-except-for-womens'-issues O'Connor dissented, saying that the states could do whatever they wanted and that Congress had no right to pass a law banning marijuana.
     Now, as I'm sure Ben can tell you, I'm no fan of the wacky tobaccy. So maybe that influences my personal leanings towards the federal ban. But the War on Drugs is largely a conservative beast, not a liberal one. (Started by Nixon, championed by Nancy Reagan) And yet the conservative justices want to end it. Maybe we have another chink in the GOP armor. More likely is that this case is really about the power of America, and not drugs at all.
     The U.S. Congress passed a laws (laws) banning marijuana, with no exceptions for medical or emergency use. I don't know what the public perception is today, but in a 2003 survey, 59% of Americans favored the ban on marijuana, according to the legalization group, Drug Policy Alliance. We all know that statistics can be misleading, but it's pretty clear that if this group advertises these numbers, if anything they're fudging on their own side. And the majority opinion justices of the Supreme Court weren't just voting based on popular opinion. Their argument was that Congress has the right to control interstate commerce. Since the legalization of "medical" marijuana will inevitably find its way to the open market, interstate or not, it will affect the market price of marijuana (making it cheaper, thereby giving it a broader customer base). Thus, private medical use of marijuana can fall under the jurisdiction of Congress. (There's a lot more to the argument. read the decision yourself) Rehnquist, Thomas, and O'Connor dissented, basically saying, What's the harm in a few old ladies with terminal cancer smoking weed? C'mon!
     Their argument lacks a lot of the dissection of the commerce clause and leans heavily on previous rulings by the same crowd. Their goal is to limit the power of Washington. Dress it up as small government or whatever you like. Their aim is to cripple the power of our elected officials by reinterpreting the constitution. They hate America - at least the America we have today. They hate living in a world where Californians get as much of a say in what the rules are as someone from North Dakota. (Actually, they don't - but that's another story) They hate having to compromise with people who are different. That's why they isolate themselves in suburbs with cul-de-sacs that undesirables won't accidentally drive through. That's why they watch Fox News with its editorialized content. That's why they tag themselves with "I Support the Troops" magnetic ribbons.** If they could form their own country (called Idlewyld Country Clubia or Jonesville Baptistia) and exclude the people who don't agree with them, they would. Barring that, if they could move to South Carolina and be free of meddlesome federal oversight, they would.
     The problem for these people is that we all identify ourselves as Americans. All of us - straight and gay, Whites, Hispanics, Blacks, pot-smokers, draft-dodgers, and flag-burners. We're all American. And because we live in a (mostly) democracy, we all get a say. And we all deserve protection and equality under the law.
     Speaking personally, I view myself as an American. I don't think of myself as a Georgian first and then an American. I don't think of myself as a Norcrossite (?) first, then a Georgian, then an American. So the idea of empowering the states over the federal government is distasteful to me. If I wanted to be purely selfish, I would support it and move to a state that served my personal needs, even as the union crumbled around me. But I like being able to cross from state to state, not worrying what laws are different in this state compared to the last. (Radar detector and fireworks laws are complicated enough, thank you) In fact, I believe that's a large part of why America has done so well in the 20th century - a large country, free of encumbrances and local tribal squabbles. So look carefully at these Activist Judges who want to suppress the law to remold America in their image. They're not trying to shrink government, they're trying to castrate it.

** I am by no means suggesting that everybody who does these things is an anti-social America hater. People have many reasons for doing things, and the one I put out is just one.


fatinspanish said...

scott, when you're right, you're right...the trick is to piece this into the narrative.

republicans are the new democrats...they're always trying to tell you how to live your life. they're alaways thinking that they know better than you.

Narrative, narrative, narrative...the left needs a self-sustaining storyline. One that the most natural actions of the right sustains and reinforces. Self-sustaining and self-reinforcing.

keep up the good work!

alex said...

Scott i am sorry but in my opinion you seem to be contradicting yourself in your rant. You claim

They hate living in a world where Californians get as much of a say in what the rules are as someone from North Dakota.

Speaking of conservatives. But that is the opposite of what the dissenting justices said. They are saying the people in california have a right to decide what happens in california. I belive that if this was a federal law banning something like gay marriage or abortion you would suddenly think that states should make there own laws.

Second the interstate commerce clause has for a long time been used by the federal goverment to take power away from the states. The constitution specifically says what powers congress has and doesn't have. In this particular case please read the following quote from a news article.

Under the Constitution, Congress may pass laws regulating a state's economic activity so long as it involves "interstate commerce" that crosses state borders. The California marijuana in question was homegrown, distributed to patients without charge and without crossing state lines.

While i myself am not necissarily in favor or legalizing pot. I would like to ask you this question how come banning alcohol took a constitutional amendment but banning pot doesn't.

I would also say that you are treading a dangerous path since you are pretty much saying that congress should decide all laws and state goverments are basiclly useless. The constitution specificlly wanted to limit the power of the federal goverment and while yes we all think of ourselves as americans there is also a place for state politics. if the people of Mass or Cali decided to legalize gay marriage in my opinion this is their right if that is the will of the people in those states but i guess you think that the people of nebraska and kansas should have a say in the marriage laws of mass.

Richard said...

This is about federalism, the doctrine that power should be shared between the federal government and the states. As specified in the Constiution (see Amendment X--aren't liberals supposed to be in favor of the Bill of Rights), powers not explicitly designated to the federal government are reserved to the states and the people.

I don't see how you can claim Rehnquist, Thomas, and O'Connor are trying "to cripple the power of our elected officials by reinterpreting the constitution" in favor of federalism; federalism was a core doctrine of the Founding Fathers. If you want to complain about creative interpretations of the Constiution, look to those who use the interstate commerce clause as blanket permission for just about anything.

Also, how do you interpret the conservative justices' action as, "hat[ing] having to compromise with people who are different?" They sided with Californa dope users, not exactly the traditional Republican support base.

Mike said...

Way to go in calling out their hypocrisy, alex. They're all in favor of States' rights when it comes to pot, but don't let the states decide when it comes to abortion and gay marriage. The irony here is that the liberal justices passed this decision with some help from Scalia, whose vote didn't really matter. But I too disagree with the decision. I don't think the federal government has jurisdiction in this case. So let the record show who the judicial activists are in this decision, the five liberals and Scalia. I'm going to have to read the actual decision to see what Scalia said.

Ben said...

I'm going to avoid the Dem versus GOP segment of this discussion and focus purely on the drugs. Pot was mad e illegal initially for two reason. One, it was associated with jazz musicians, which most politicans considered a sunversive element, and two, it was too hard to tax. They made it illegal with the justification that it fell under interstate commerce laws, and thus the Federal government could regulate it. It now seems a bit hypocritical for them to say that individual states cannot make laws about how the drug is handled within their own state, not to mention that it's medical uses are lauded by many experts, and the Supreme Court has no business telling doctors which drugs are useful and which aren't. Last time I checked they had law degrees, not medical ones. At the VERY least, let chronically ill patients, like people with 3 months to live with cancer and chemotherapy, smoke a little weed. It makes it so they aren't naseous all the time, and can actually function well enough to spend quality time with their families before they die. It seems cruel to withhold the one drug proven time and time again to relieve the pain and anguish such people go through as they deteriorate.

As far as the partisan issue, I don't think it's fair to say the War on Drugs is all Republican. It's pretty bipartisan. Bill Clinton had the chance to end it, but instead raised spending on it.

Ben said...

I've read more about all this, and I'm damn impressed with Thomas' dissent. It sums up my opinion quite succinctly:
"Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. 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."

Furthermore, just as I don't like the idea of foreign laws influencing our own, I don't like the idea of a bunch of lawyers in D.C. making decisions about my medical needs for me. Yes, I am an American more than I think of myself as a Georgian, and thank god America has this Constitution which gives people that live near each other the right to make local decisions. The French and the Dutch demonstrated that they understand this last week in their rejection of a Constitution that would have given most lawmaking ability to a bunch of beaureaucrats in Belgium.

Scott said...

Mike, your comment makes no sense. The liberals and moderates on the court actually voted for federal rights over pot, not states rights.
Alex, I didn't contradict myself. What I mean to say is that the States' Rights argument goes back to slavery. Faced with the likelihood of losing slavery in a nationwide referendum, the South claimed States' Rights so they could keep their "peculiar institution" intact without interference from the North. This played out again during Civil Rights and again now in the past 2 decades. The Right's position has been to find a way to take a victory where they can get it, and if it means dividing up the country bit by bit, they'll do it. The new wrinkle here is that for the first time in a long time, the Right controls the federal government. Still, States Rights is deeply ingrained in the conservative mindset, plus their hold on America is tenuous at best - their policies lie around the 50%+ range in popularity. (Polls saying that 80% of Americans believe in God are misleading - it doesn't say how much they believe God should play a part in government. The same survey showed that only 3 in 10 think the church should be involved in politics)
Ben & Alex, regarding the "homegrown" issue: There is a national market for marijuana, despite it being illegal. The price of marijuana is based on a number of factors, including production price, transportation, availability, demand, and its illegality. When private growers are allowed to grow their own, even for their own private use, they are no longer purchasing on the national market. That is, the supply is up and the demand stays steady. Or you can make the argument that maybe the demand rises or falls as well. That's irrelevant, because all the government has to do is show that it affects interstate commerce. Now, had the federal government not decided to restrict interstate commerce of pot, it would be a non-issue. Although the court has consistently sided with the government when there is a commodity product that is sold around the country and little or no distiction can be made as to where it is produced. Like wheat. When the government decided to restrict wheat production in the 60's to prop prices up and protect wheat farmers (I don't necessarily agree with this decision - but that doesn't affect its legality), farmers were limited in the amount of wheat they could grow. They could not grow a little extra, promising to only sell it in-state or even to consume it themselves, because one piece of wheat is indistinguishable from another and it would impact the price and availability of wheat on the national market. The only thing confusing the pot issue is the fact that the government tries to restrict it to 0. The fact that it is failing doesn't mean that it has to stop policing it.
That said, I despise recreational pot and I'm personally glad the federal government has taken a stand. It's unfortunate that it can't be treated like other powerful drugs, like percocet or vicoden and prescribed as such, but I still believe they have the right to do so. Again, this case was never about pot, per se. If Republicans really hated the idea of federal control over state control, Congress would legalize pot on the national level and leave it up to the states. But they're not. It would be interesting to explore the reasons why however....

Scott said...

Oh, and Ben, the French and Dutch rejection of the EU had more to do with the fact that the French are insufferable petulant people who would cut off their nose to spite their face - they are mad at Chirac so they voted Non - and that the EU Constitution is a really large piece of crap. Our Constitution is like 4600 words. The EU's is like 60,000 words! Try reading it - it will boggle your mind.

Ben said...

It's an illegal market, Scott, which means it's not interstate commerce, it's just an illegal activity. Unless you legalize it, then I could make the argument that it's interstate commerce and could be regulated by Congress. Why you ahve this urge to give Congress and the judiciary more and more power is beyond me. The country was never meant to be run this way, the Constitution was not written that way. That's 200 years of America being a great country, and you want to scrap it and give Congress and the SCOTUS the power to do whatever they want? I'm not kidding, I consider the Constitution the reason why this country has been such a success, and I'm sick of people twisting and stretching it to fit their agendas. Sure, pot's bad, so regulate it, but now you've essentially given a Senator from Maine the right to legislate the regulation of natural gas down here, so long as he can get the votes. After all, natural gas is definitely interstate commerce. Personally I'd rather have assurance that that sort of thing is handled locally, to fit my needs. You want to give away that assurance.

The interstate commerce clause has been abused far too often in this country. It was never meant to be used in this way.

You really shouldn't equate southern Democrats from the civil rights and civil war eras with Republicans today. It's not true. Especially when you consider that some of those southern obstructionists from the 60's are STILL Democratic congressmen.

M. Simon said...

Oxycontin is diverteted from the legal market all the time.

Does this mean it should be a banned medicine?

Your reasoning is not reasonable.

Addiction or Self Medication?


Genetic Discrimination

M. Simon said...

Drug prohibition was racist at its inception.

It is prosecuted in a racist manner today.

I guess practical racism is no longer a liberal issue.


Drug War History

Scott said...

Simon, welcome to The Truth, but you seem to have a knack for deriving exactly the opposite point I was trying to make. I said, "It's unfortunate that [marijuana] can't be treated like other powerful drugs, like percocet or vicoden and prescribed as such..."

I don't deny that the drug war is heavily racist. I don't espouse it, either - I obviously haven't done as much research on drug convictions. I still don't particularly like drugs, though.

Ben, commerce means people are buying and selling goods. Commerce can also be defined as "an activity", if you want to be really general, but I know you hate that. Just because it's illegal doesn't make it not be commerce anymore. And according to you it's not illegal anyway, so which is it?

Ben said...

No, but if it's illegal it's not commerce Congress should be making laws on. "Well you can't murder the President, but if you do, it's against the law to do it without a doctor's prescription."

Let's go back to basics. Pot is, by anyone's standards, far less damaging than alcohol. Do you like to drink sometimes? Yes, I know you do. So why are you being such a hypocrite? Please give me one good reason why pot should be illegal and alcohol not.

And don't you worry about the fact that your war on drugs has destroyed the African-American family unit more than anything else?

And you also didn't answer why you want to give Congress the power to make laws on anything and everything. They are supposed to have limits for several good reasons, but by allowing this abuse of the commerce clause to continue, you are making Congress virtually omnipotent. When the army goes to war, it affects interstate commerce. EVen though the Constitution specifically says the President is the Commander-in-chief, you've just given Congress the ability to countermand the President because it affects commerce. You would turn this country in to an oligarchy. Why do you have so little respect for the Constitution that you are so willing to twist it to get your way?

Mike said...

Scott, correct me if I'm wrong, but I get the impression from your post you favor state's rights in this issue. So why do you not favor state's rights in abortion and gay marriage?

Ben said...

I get the opposite. He seems to be clearly against state's rights, and all for Congress making any and all decisions regarding everything. Like a typical lefty, the Federal government is his solution to every problem.

Mike said...

I can't tell because he keeps saying "they". I can't tell if he's railing against the 6 justices who voted in favor or the 3 who voted against. If he's railing against the 3 who voted against get a grip, they lost, you won.

Really, in effect, this whole decision just kept the status quo. Smoking pot is a federal crime but ok in CA for medicinal use. The feds will get you but the state will leave you alone.

Scott said...

Yeah, I'm not sure what you're reading to suggest I'm for States' Rights. Ben, I actually laughed out loud when I read your comment on war. The Consitution specifically says that only Congress has the right to send our troops to war, not the President. That has nothing to do with the commerce clause at all.
In addition, I found it funny that you said Congress couldn't make a law about something that was illegal. Catch-22? How could it become illegal if Congress didn't make it so? And does it then disqualify them from making additional laws? Plus, gambling may be illegal in Georgia, for instance, but the Federal government still requires you to pay taxes on your winnings, even if you did it illegally. Breaking one law doesn't give you carte blance to break another.

Ben said...

Congress has never said gambling is illegal, so of course they can tax gambling earnings. It has nothing to do with whether it is illegal in Georgia or not. State's rights, dude.

I can read, too, and I never said anything about declaring war. I know Congress declares war. The President is still commander-in-chief and once war is declared, he's in charge. But since war involves interstate commerce, you've just given Congress the power to run the military despite the fact that the Constitution says the President is in charge. I laughed out loud when I realized you didn't bother reading what I wrote, you just picked out a few words and twisted it all to make your point.

You still won't explain why you think Congress's power should now be unlimited, because whatever you think is the truth, your interpretation of the interstate commerce clause gives them unlimited power to do whatever they want.

Ben said...

Nor have you answered why pot is illegal in the first place, when much worse substances like alcohol are legal. Is it because you're a hypocrite? There's no legitimate reason I have ever heard why one is legal and the other causes millions of non-violent people to be labeled as criminals and stuck in jail at taxpayer's expense. Until that underlying question can be answered, all the rest is just a waste of time.

Mike said...

Perhaps off topic here, but I think society's whole stigma with pot is the fact that you smoke it. If it came in a pill or injection it would probably be legal. Take cocaine, it is legal for a doctor to prescribe cocaine for pain relief. But cocaine can be injested or injected. What is the most common legal drug that is inhaled? Nicotene. Cigarettes. I think people equate pot too closely with cigarettes which everyone knows is bad for you now. So I think pot is kind of lumped in with cigarettes and that explains the social stigma against it.

Disclaimer: Once again let me say I'm for the ban on pot. I think it's a nasty habit that serves no recreational benefit to society.

Ben said...

Nor does alcohol, Mike. Any legitimate use of alcohol can be done with rubbing alcohol. There is no legit use for drinking alcohol. It's only legal because it was so socially accepted that Prohibition couldn't be enforced. As we've seen from the war on drugs, billion and billions of tax dollars have been spent and have not reduced marijuana use at all. Anyway, we can't just make thing sillegal because you find them to be nasty habits. I think chewing tobacco is a nasty habit, should that be illegal? I think homeless people smell bad and are nasty. Let's make them illegal and deport them, after all they have no demonstratable benefit to society, if anything they are a detriment.

Also, as far as I'm aware, cocaine is schedule A, and cannot be prescribed by a doctor, as schedule A drugs, no matter what actual scientific evidence shows, have no medical benefit by definition.

Mike said...

You might be right on cocaine, Ben. I have no facts on it. I was just quoting some guy I heard on the radio yesterday.

You're right we can't make things illegal because they are nasty habits. That's not the American way. We need to tax it to death! Why not legalize it and put a $20 an ounce tax on pot. That should cover social security another 100 years.

Ben said...

Mike, I've been saying that for years. Let's say pot costs $240 per ounce on the black market. Legalize it and the price will quickly fall to cigarette levels, then put like a 400% tax on it, so an ounce would be, for example, $40, with a $160 tax. Still cheaper than the black market had it, but allows a huge windfall for the government. Add in all the money we'd save from no longer prosecuting non-violent pot smokers, and all that we'd save by emptying the jails of non-violent pot smokers (as much as 1/3 of all prisoners, by some estimates, though I don't really think it's that high), and I just can't understand any reason to be against it. Except if you are like Scott and don't like the idea of pot for no particular reason. Thankfully in this country we're not supposed to ban things just because someone doesn't like it. I'm going to go so far as to say that banning pot is more a violation of our civil rights than the Patriot Act. I'm still waiting for someone to show me where that caused a clear violation of ANYONE's civil rights. Jose Padilla doesn't count. His rights were violated, but it had nothing to do with the Patriot Act. The Patriot Act is just another boogeyman the left likes to attack. But I got off-topic, oops.

Mike said...

Me thinks Ben likes smokin' the weed.

Ben said...

Why? Just because I know a lot about it? I may or may not have partaken some in college, but I definitely had plenty of friends who did, as well as some that sold it, so that prcing information is pretty accurate.

I don't smoke cigarettes anymore, but I'm still against the various bans that are being passed all over the place. Just because I don't partake doesn't mean I want to see other people's rights taken away.

Scott said...

Oh, Ben, please. *I* had friends who smoked it. You had smoking buddies who smoked it.

But I'm glad to hear you've stopped smoking cigarettes. Good for you! I didn't know that.

Ben said...

I haven't smoked in about a month, with the exception of one last weekend at Brian's apartment warming party.

Mike said...

Ha ha! You guys crack me up.

Ben said...

Hey Mike, I just wanted to let you know that you were right, cocaine is a schedule II drug, which means it can be prescribed as medicine. How the Drug War people think cocaine is a vlid medicine and pot is not is beyond me. The only medical use I could find for cocaine online was as a local curface anesthetic, but now we have far better and less dangerous substances for that. It's inane and utterly ridiculous that cocaine is schedule II, while pot, with proven medical use in the terminally ill, languishes in schedule I while sending millions to jail for non-violent pot possession.

Mike said...

Like I always say, "Live and learn to listen to Mike."