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June 6, 2005

We Certainly Handle the Koran Better than we Handle the Constitution

The Supreme Court has once again utterly abrogated is role in protecting the Constitution, by ruling in Raich that activities that don't cross state lines and are not commercial are nonetheless subject to Congress' power to regulate interstate commerce. (hat tip: InstaPundit, of course) I'll leave it to David Bernstein to enumerate why this decision is bad; I want to tackle something related. Here's his summary: "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."

The Supreme Court arrogated in Marbury v. Madison arrogated to itself the power to be the final word on the Constitution. This power is not assigned by the Constitution, and the Founders in refusing to assign the Court an exclusive power to interpret the Constitution left that power in the hands of the people. How, though, does the Supreme Court enforce such decisions? In a much derided but very accurate Clintonian phrase, other people comply as a matter of "policy and comity." Supreme Court decisions are Constitutionally only binding in certain kinds of cases, and then only in the cases themselves, rather than in broad terms.

The fact that that last paragraph seems so at odds with reality is because Marbury v. Madison was a powerfully argued and brilliantly crafted decision, and since that time it has been extraordinarily rare - in fact, I can't find an example - for anyone to simply ignore the Court. But the Constitution enumerates certain powers to certain branches of government, and reserves unenumerated powers to the States or the People. The Supreme Court has developed a bad habit since the 1930s of disagreeing with the Constitution, and simply imposing their will. Why did it require a Constitutional amendment to ban alcohol, but not drugs? Why is an activity that does not cross State lines and does not involve any commercial activity subject to Congress' powers under the Commerce Clause?

Because, and only because, the Supreme Court says so and nobody disobeys them. I don't have any opinion on medical use of marijuana per se, but I do have an opinion on overreaching on the part of the government. If California decides to simply ignore the Supreme Court and continue to allow the medical use of marijuana, barring State and local law enforcement from interfering, ordering State courts to dismiss cases under the Federal statute, and if necessary ejecting Federal agents attempting to enforce the law, I will certainly support their right to do so. It would set a powerful precedent on its own: the power to enforce the Constitution lies not in the Supreme Court's benevolent intentions, but in each of us as individual citizens of a free Republic.

Unless, of course, we're ready to just give up.

UPDATE: And if the Democrats can convince me of a few things, this plan could get my vote. (hat tip: No Silence Here) What they have to convince me of:

  1. They are serious that we are at war, and that they will prosecute that war as a war.
  2. They are serious, and would put in place concrete measures to ensure that the Democrats would not revert to their own long-cherished habit of perpetuating government power over the rights of the citizenry, or extend the Federal spending power still further.

I'm not sure they can convince me of point 1. To convince me of point 2, it might be a good idea for them to start proposing Constitutional amendments limiting government power and taxing/spending authority. I look forward to them making a serious attempt to convince me.

Posted by jeff at June 6, 2005 1:09 PM

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Today’s Supreme Court decision of Gonzales v. Raich (link to PDF of decision) holds that the state of California isn’t allowed to make intrastate medical use of marijuana legal. The AP article says “the decision is a stinging defeat [Read More]

Tracked on June 6, 2005 2:11 PM

Comments

Hey Jeff,

My apologies for commenting off-topic but I think this post over at the Neurolearning Blog will be of interest to you.

http://eideneurolearningblog.blogspot.com/2005/06/examined-life-cultivating-self.html


Posted by: mark safranski at June 6, 2005 1:56 PM

It is indeed very rare for people to just ignore the court, but it has happened. See the events surrounding Worcester v. Georgia 31 US 515 (1832), where the Court ruled that Georgia had violated treaty obligations with the Cherokee Nation. President Andrew Jackson remarked that "he [John Marshall] made the decision, now let him enforce it." And so the precedent of ignoring well established law, expressly agreed upon obligations and basic humanitarian principles in a vicious campaign against Native Americans was begun.

Posted by: David Schraub at June 6, 2005 11:14 PM