Monday, June 06, 2005
Constitution still in exile
First the simple math of the present Supreme Court make-up from Orin Kerr (my personal favorite member of the Volokh Conspiracy).
In federalism cases, moreover, there is no clear majority on the current Court. Four Justices -- Stevens, Souter, Ginsburg, and Breyer -more or less share the same basic view that the Court has little to no role enforcing federalism constraints. The other five Justices would impose some limits on the scope of federal power, but don't really share common ground on exactly what those limits should be.
Other comments I enjoyed were from my least favorite member of the conspiracy David Bernstein (too strident & quick to take umbrage for my tastes).
The mathematics of federalism on today's Supreme Court, then, is that the four Justices who do not favor judicial enforcement of federalism constraints only need one additional vote to form a majority. Conversely, for the Court to rule in favor of a federalism limitation, common ground must exist that ties together the differing viewpoints of all five of the right-of-center Justices. The odds are that the former will happen more often than the latter, which is why victories for federalism principles have tended to be rare and on relatively narrow (that is, symbolic) issues.
A decade later, the Republican Congress is vying with the Democratic Congresses of the 1930's and 1960's as the biggest supporter of increased federal power in American history.
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.
(4) There are essentially two strategies for those who are concerned with civil liberties for limiting the government's ability to abuse the rights of the public. One is the standard ACLU strategy of being a liberal supporter of broad government power, and then insisting that the government respect individual rights, especially constitutional rights, when using that power. The other strategy, followed by libertarians, is to try to limit the government's general power to begin with because the government cannot abuse power it does not have.
The drug war provides a least one example of the superiority of the libertarian strategy. 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. Far better to have denied the federal government the power to regulate intrastate use of and sale of drugs to begin with, as, I recall,
Justice Van Devanter advocated on Commerce Clause grounds way back in the "dark ages" of the 1920's.
I'm not familiar with Sam Bagenstos posting on SCOTUSblog, but this comment hit home with me:
I don't think there was *ever* a majority -- not in 1995, and not now; not in the Court, and not in Congress -- for a massive shift in the federal-state balance that existed in the period immediately prior to Lopez. There are too many issues for which social and business conservatives like federal power, and libertarians like Randy and David are, and always have been, a relatively small faction within the conservative movement (though a faction whose ideas -- which are often really interesting, provocative, and persuasive -- have been cherry picked by other conservatives).
From the opinions themselves:
"Wickard thus establishes that Congress can regulate purely intrastate activity that is not itself commercial....if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity." - Stevens (majority opinion)
"[T]he authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws governing intrastate activities that substantially affect interstate commerce." - Scalia (concurring with the majority)
[I]n order to be "necessary,"the intrastate ban must be more than a "reasonable means [of] effectuat[ing] the regulation of interstate commerce....It must be plainly adapted to regulating interstate marijuana trafficking - in other words, there must be an obvious,
simple, and direct relation between the intrastate ban and the regulation of interstate commerce. - Thomas (opposition)
At this point, I believe even Sisyphus would be willing to give up. Too sad to continue blogging, so will hobble around the block as emotional & physical therapy.
UPDATE: the hobble helped. Guess it's good that we have folks like MPP who do their best to "rally the troops" when the news is disappointing - I've never had that ability and since the results of the court cases & (too many) state ballot propositions are so disappointing, it does not seem promising that marijuana will be legalized in my lifetime.