Pubdate: Sun, 12 Jun 2005
Source: Quad-City Times (IA)
Section: Pg A15, above fold
Copyright: 2005 Quad-City Times
Contact:  http://www.qctimes.com/
Details: http://www.mapinc.org/media/857
Author: Charles Krauthammer
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)

COMPLICATED SUPREME COURT CASE ABOUT STATES' RIGHTS, NOT POT

WASHINGTON - Justice Thomas: "Dope is cool."

Justice Scalia: "Let the cancer patients suffer."

If the headline writers characterized Supreme Court decisions the way 
many senators and most activists and lobbying groups do, that is how 
they would have characterized the Supreme Court decision this week on 
medical marijuana in California. It was ruled illegal because the 
federal law (prohibiting it) supersedes the state law (permitting 
it). Scalia agreed with the decision. Thomas dissented.

In our current corrupted debates about the judges, you hear only 
about results. Priscilla Owen, we were told (by the Alliance for 
Justice), "routinely backs corporations against worker and consumer 
protections." Well, in what circumstances? In adjudicating what 
claims? Under what constitutional doctrine?

The real question is never what judges decide, but how they decide 
it. The Scalia-Thomas argument was not about concern for cancer 
patients, the utility of medical marijuana or the latitude 
individuals should have regarding what they ingest.

It was about what the commerce clause permits, and even more 
abstractly, who decides what the commerce clause permits. To simplify 
only slightly, Scalia says: Supreme Court precedent. Thomas says: the 
Founders, as best we can interpret their original intent.

The Scalia opinion (concurring with the majority opinion) appeals to 
dozens of precedents over the last 70 years under which the commerce 
clause was vastly expanded to allow the federal government to 
regulate what had, by the time of the New Deal, become a highly 
industrialized country with a highly nationalized economy.

Thomas' dissent refuses to bow to such 20th-century innovations. 
While Scalia's opinion is studded with precedents, Thomas pulls out 
founding-era dictionaries (plus Madison's notes from the 
Constitutional Convention, The Federalist Papers, and the 
ratification debates) to understand what the word commerce meant 
then. And it meant only "trade or exchange" (as distinct from 
manufacture) and not, as we use the term today, economic activity in 
general. By this understanding, the federal government had no 
business whatsoever regulating privately and medicinally grown marijuana.

This is constitutional "originalism" in pure form. Its attractiveness 
is that it imposes discipline on the courts. It gives them a clear 
and empirically verifiable understanding of constitutional text - a 
finite boundary beyond which even judges with airs must not go.

And if conditions change and parts of the originalist Constitution 
become obsolete, amend it. Democratically. We have added 17 
amendments since the Bill of Rights. Amending is not a job for judges.

The position represented by Scalia's argument in this case is less 
"conservative." It recognizes that decades of precedent (which might 
have, at first, taken constitutional liberties) become so ingrained 
in the life of the country, and so accepted as part of the 
understanding of the modern Constitution, that it is simply too 
revolutionary, too legally and societally disruptive, to return to an 
original understanding long abandoned.

And there is yet another view. With Thomas' originalism at one end of 
the spectrum and Scalia's originalism tempered by precedent - rolling 
originalism, as it were - in the middle, there is a third notion, 
championed most explicitly by Justice Stephen Breyer, that the 
Constitution is a living document and the role of the court is to 
interpret and reinterpret it continually in the light of new ideas 
and new norms.

This is what our debate about judges should be about. Instead, it 
constantly degenerates into arguments about results.

Two years ago, Thomas (and Scalia and Rehnquist) dissented from the 
court's decision to invalidate a Texas law that criminalized sodomy. 
Thomas explicitly wrote, "If I were a member of the Texas 
Legislature, I would vote to repeal it." However, since he is a judge 
and not a legislator, he could find no principled way to use a 
constitution that is silent on this issue to strike down the law. No 
matter. If Thomas were nominated tomorrow for chief justice you can 
be sure that some liberal activists would immediately issue a press 
release citing Thomas' "hostility to homosexual rights."

And they will undoubtedly cite previous commerce clause cases - 
Thomas joining the majority of the court in striking down the Gun 
Free School Zones Act and (parts of) the Violence Against Women Act - 
to show Thomas' "hostility to women's rights and gun-free schools."

I hope Bush nominates Thomas to succeed Rehnquist as chief justice, 
not just because honoring an originalist would be an important 
counterweight to the irresistible modern impulse to legislate from 
the bench, but perhaps more importantly, to expose the idiocy of the 
attacks on Thomas that will inevitably be results-oriented: hostile 
to women, opposed to gun-free schools ... and pro marijuana?