Pubdate: Fri, 10 Jun 2005
Source: Atlanta Journal-Constitution (GA)
Copyright: 2005 The Washington Post Writers Group
Contact: http://www.ajc.com/opinion/content/opinion/letters/sendletter.html
Website: http://www.accessatlanta.com/ajc/
Details: http://www.mapinc.org/media/28
Author: Charles Krauthammer
Note: Charles Krauthammer is a Washington Post columnist.
Bookmark: http://www.mapinc.org/topics/Raich (Gonzales v. Raich)

FOCUS ON JUDGES' REASONING, NOT RESULTS

Justice Thomas: "Dope is cool."

Justice Scalia: "Let the cancer patients suffer."

If the headline writers characterized Supreme Court decisions the way
many senators, activists and lobbying groups do, that is how they
would have characterized the Supreme Court decision 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 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 to understand what the word commerce meant
then. And it meant only "trade or exchange" and not, as we use the
term today, economic activity in general. Thus, the federal government
had no business 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 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 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 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 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 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?
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MAP posted-by: Richard Lake