June 09, 2005
The Raich of Federalism
When not wallowing in the dubious joys of regression trends, I've been wrestling with Gonzalez v. Raich, since first I read these immortal words, now seared into my soul:
What is it about the Commerce Clause that makes such otherwise brilliant people lose sight of the purpose of federalism? I don't know. But it sure is a profitable line for legal work.
Whilst trying to reconcile the puzzling Scalia decision (which some say is not puzzling at all, but follows as surely as night must follow day) I turned to Althouse:
I'm sure many people will accuse Scalia of faltering in his support for federalism. But I have always thought the best way to understand Lopez is not by the commercial/noncommercial distinction, but by whether the regulated intrastate activity is part of a connected web of interstate activity. We can picture individual states making diverse, decentralized decisions about how to deal with violence in schools -- the interstate activity in Lopez -- without the policy in one state interfering with the approach chosen by another. One state's experiment with gun-exchange programs and parental responsibility laws doesn't undercut a tough imprisonment policy used in the next state. You don't need a uniform national law to deal with the problem. In fact, the different state policies work as experiments, generating information about which policy works best. But if it is to be possible to ban marijuana, a uniform national law is important. One state's lenient approach would undercut the next state's hardcore approach. That's the Lopez-based argument for congressional power in Raich.
She did about as good as job as any of making a case for Scalia's reasoning. And there was a time when I would very likely have agreed with much of her argument. But there is such a thing as making the right decision for the wrong reasons. The penumbral right to privacy, which I find difficult to argue with on philosophical grounds, comes to mind: a finding that seems right in essence but was inexorably expanded upon until it overruled a more fundamental right to human life (and this from a reluctant pro-choicer! but that is where logic leads me).
I fear that is what has happened now on a far grander scale. Justice Thomas states his objections to the majority ruling succintly:
Respondents’ local cultivation and consumption of marijuana is not “Commerce … among the several States.” By holding that Congress may regulate activity that is neither interstate nor commerce under the Interstate Commerce Clause, the Court abandons any attempt to enforce the Constitution’s limits on federal power. The majority supports this conclusion by invoking, without explanation, the Necessary and Proper Clause. Regulating respondents’ conduct, however, is not “necessary and proper for carrying into Execution” Congress’ restrictions on the interstate drug trade. Thus, neither the Commerce Clause nor the Necessary and Proper Clause grants Congress the power to regulate respondents’ conduct.
Ladies and Gentlemen, I have read many tortured legal arguments, but it simply does not get any clearer than this. If we are to be a nation of laws and not of men, we cannot arbitrarily pick and choose which laws we will obey and which we will set aside when it suits our overarching purpose. This, in essence, is what the Court has done, in defiance of the Constitution. McQ states it well:
For those on the left who want a "living Constitution", welcome to the world that brings. A court which issues arbitrary rulings based in arbitrary readings that must ignore parts of the Constitution in order to justify their findings.
Want a 'living Constitution'? Then amend it ... that was the process put in place to change the Constitution if we felt it no longer reflected our will. That was the process designed to keep it a "living" document. The process certainly wasn't to be delivered by activist judicial fiat.
As Thomas Jefferson said:
"The natural progress of things is for liberty to yield and government to gain ground."
We're seeing more and more of liberty yielding and government gaining ground. This is just the most recent example.
How did we stray so far from the Founders' intent? Steve Chapman notes:
The chief author of our Constitution, James Madison, had little patience for those who accused him and his allies of trying to create a large, intrusive federal government. In 1788, he noted pointedly that the "powers delegated by the proposed Constitution to the federal government are few and defined." Those of the states, by contrast, "are numerous and indefinite."
This week, addressing the same question, the Supreme Court said, "James who?"
These days, any attempt to limit the encroachment of federal power is greeted with cries of a "return to the days of Jim Crow". This is a perverse understanding of federalism: black conservatives like Clarence Thomas and Janice Rogers Brown well understand that a federal judiciary that fails to respect the will of the people as expressed through their state legislatures, or rides roughshod over two hundred years of Constitutional law, is little likely to prove a vigorous guardian of their individual liberties.
Will anyone heed Justice Thomas' words?
“One searches the Court’s opinion in vain for any hint of what aspect of American life is reserved to the States.”
Absent the tempering influence of Lopez and Morrison, how will the future look? Crime and Federalism looks at three upcoming decisions. US v Maxwell and Smith are both child pornography cases. In Maxwell:
... a unanimous three-judge panel held that 18 U.S.C. 2252A(a)(5)(B), which makes it a federal crime to possess child p*rnography on materials that traveled in interstate commerce, was an invalid exercise of Congress' commerce power. Judge Tjoflat wrote for the panel that since Maxwell's possession of the pornographic images was non-commercial, it would not apply Wickard v. Filburn's aggregation principle.
In Smith, another Tjoflat opinion, a unanimous three-judge panel of the Eleventh Circuit, applying plain error review, reversed another conviction obtained under Sec. 2252A(a)(5)(B).
In Stewart, a 2-1 panel of the Ninth Circuit, per Judge Kozinski, held that Congress could criminalize the possession of homemade machine guns. The defendant in Stewart used parts that traveled in interstate commerce to convert his semi-automatic rifle with the capability to fire automatically, i.e., Stewart's rifle would fire repeatedly without his having to continually pull the trigger.
Post-Raich, it's unlikely that Maxwell, Smith, or Stewart will stand. All three cases, like Raich, involve the intrastate production or possession of materials for which there is a national market (machine guns and child pornography). The Court will likely GVR (grant cert., vacate the judgment, and remand for reconsideration) these cases. But it's worth keeping an eye on them.
It is an unfortunate consequence of conservatism that a just process does not always bring about desireable or just results. But such is life. One must ask whether it is best to suffer injustice or inequities at the hand of one's fellow men or at the heavy hands of government.
Those who believe government to be largely benign (and their fellow men to be inherently evil) inevitably prefer the latter, forgetting that government is composed of human beings who are themselves fallible and prone to error. If I am to take on my fellow men, I much prefer to take them on, one at a time.
The odds are much better.
Posted by Cassandra at June 9, 2005 10:11 AM
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This is analogous to rule utilitarianism v. situational utilitarianism. In the Constitutional world, the rules should control.
If you don't like California's drug law, convince the people California to abandon it. Otherwise, let the "undesirable" result happen because the process is too important to scrap. But with many judges today, they are seldom concerned about a consistent, predictable process. They like "deciding" the law rather than just enforcing it.
This is the second big opinion lately that involved "liberal" justices not enforcing the constitution and letting Federal law stand (see, also, campaign finance ruling last year). I am at a loss on how more "liberal" judges can find rights not remotely expressed anywhere and yet can't find limitations on government actually stated in the text of the document.
Scalia's opinion was, I think, determined by the outcome he wanted, and that is so rare for him, especially when I disagree with him. I am disappointed.
Posted by: KJ at June 9, 2005 01:26 PM
I'm not a lawyer and I can make no claim to understand 'legal reasoning', but that is essentially the conclusion I came to KJ.
If the Constitution is the supreme law of the land, then it is the foundation upon which all other laws are based. You cannot build your foundation on shifting sands: if that edifice, at the least, is not firmly rooted then anything based upon it or that flows from it will be even more wobbly.
The judiciary gets its authority from the Constitution. That it has ceased to respect the instrument that gave it life is alarming. That it refuses to distinguish between the branches of government, between the federal government and the states, and even between US and international law is even more so.
Posted by: Cassandra at June 9, 2005 01:44 PM
Well KJ, this is the conservative activism you posted about at the Cheese. The court upheld a law that they shouldn't have.
But, as you pointed out, at least we can still have the opportunity to work to repeal the bad law itself.
OH MY GOD!!!! WHAT HAVE I DONE????
You're posting about the Commerce Clause! Quit now, Cass, before it sucks the life out of you and turns you into a drooling street person, constantly mumbling phrases like "putative local interest" and "unrestrained intercourse." Stop before you find yourself sitting up in bed in the middle of the night and screaming "THE PIKE BALANCING TEST APPLIES ONLY WHERE THE STATUTE IS NEUTRAL ON ITS FACE, IN ITS EFFECTS AND IN ITS PURPOSE!!!!YEEEEEaaarrrrrrghhhh!!!"
Trust me. It happens.
Anyway, I though Scalia's concurence was more of a scholarly exchange with O'Connor's dissent. It certainly was no endorsement of the groundless and just plain whacky rationale employed by the majority, which, believe me, is going to bite this country in the a$$ for decades to come.
Good post, Cass.
Posted by: spd rdr at June 9, 2005 04:05 PM
Well I just don't know.
"Unrestrained intercourse" sounds like it just might be fun. But those other phrases are not exactly a kick in the pants, are they?
I must admit to only passing familiarity with Scalia's concurrence - I only read all this on momentary breaks because I worked all night last night, and I'm not sure I had time to really absorb it in my half-dead mental state. The post made more sense the first time around - I lost the entire thing 3 sentences from finishing it and was so mad I almost bagged it but I'm stubborn so I tried to remember what I'd written. Shame - I had some lovely passages in there the first time - I never really got them back the second time around but I only had 15 minutes to reconstruct it during my break.
I think I'm about to pass out now...
Posted by: Cassandra at June 9, 2005 04:58 PM
yippee! It's 5 o'clock, I just got my last client off the phone, and I've been working since 11 pm last night!
It's Anchor Steam time baby.
Posted by: Cassandra at June 9, 2005 05:01 PM
Oooh, Anchor Steam, that sounds good.
Posted by: Pile On at June 9, 2005 06:08 PM
Oh... it is good. And the best thing is that I do not have to cook dinner tonite, Mr. On.
I am very tired, but life is good and there are 4 more where this came from. Unfortunately, I will not be drinking them. I think one is my limit because I am not that big. But maybe I will get my spousal unit to pour my half a wine glass of beer to go with my dinner - sometimes he shares with me.
Posted by: Cassandra at June 9, 2005 06:17 PM
Oh just slam the second beer. And do it before you eat.
Posted by: Pile On at June 9, 2005 07:20 PM