Pubdate: Mon, 13 Jun 2005
Source: Seattle Times (WA)
Copyright: 2005 Washington Post Writers Group
Contact:  http://www.seattletimes.com/
Details: http://www.mapinc.org/media/409
Author: Charles Krauthammer, Syndicated columnist
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)
Bookmark: http://www.mapinc.org/topics/Raich (Gonzales v. Raich)

THOMAS V. SCALIA: SMOKING

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. Thomas dissented.

In our current 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? 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 past 70 years under which the commerce
clause was vastly expanded to allow the federal government to regulate
what had 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 debate about judges should be about. Instead, it
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?
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MAP posted-by: Richard Lake