Ayup. Tis a rarity when we agree

Of course, it is amusing to see Souter and Ginsburg sign off on a states’ rights position too.

Yeah, but Souter and Ginsberg have always had a “it depends on the situation” attitude rather than the bogus “Strict Construction” argument.

Don’t be fooled here – “strict construction” is a marketing term, not a legal philosophy. There is no such thing as strict construction – there are no higher concepts in any field that are immune to interpretation, and as soon as you introduce interpretation, you have a “it depends on the situation” attitude. Even in physics and math you have interpretation of the basic concepts – and law somehow is immune to this?

[...] Tom says: When you show me the part of the Constitution that enumerates the federal government’s power to regulate in-state medical issues, I’ll let you go back to arguing that Scalia and Thomas are OI strict constructionists. Until then, it looks to me like they’re at least as willing to set aside constitutional philosophy for personal preference as any other justice. [...]

Have you read the case? It’s not about federalism, states’ rights or any other constitutional issue. It’s about the scope of a federal statute. There is nothing “unfederalist” about ruling that a federal statute was intended to regulate X, while reserving judgment on the question of whether Congress had a legitimate constitutional power to do so. Unfortunately, all the liberals on the Court, along with some of the moderates and conservatives, foreclosed the latter in Raich, which presented a much stronger Tenth Amendment challenge than Oregon could have. If growing one’s own weed for personal, in-state consumption is “interstate commerce,” how could anyone seriously contend that buying large quantities of controlled substances from other states is not?

>When you show me the part of the Constitution
>that enumerates the federal government’s power
>to regulate in-state medical issues,

So do you think it’s unconstitutional for the federal courts to strike down state laws regulating abortion?

Stormy:

It depends, I suppose, on whether you think personal autonomy is in any way constitutionally protected. If you think it is, then the consistent position is that abortion laws should be struck down and the assisted suicide law should stand. Which, oddly enough, is how most of the justices seem to rule in these cases.

But since people who believe that personal autonomy is constitutionally protected don’t generally argue from a “strict constructionist” framework, they can make nuanced arguments to that effect without undermining their constitutional philosophy.

But that’s not what Scalia and Thomas did here. I have not yet read their full dissents, but I find it hard to square their ruling with scrict constructionism. Scalia in particular is known for setting aside that philosophy when it suits him (see his monotheistic trio legal fiction in his Ten Commandments ruling). Thomas is even worse, given his disdain for precedent; he seemingly has no philosophical standing for making this judgment.

I was surprised to find myself in agreement with Thomas’ dissent today. He argued that the scope of the Controlled Substances Act had been defined by Raich v. Gonzales (the medical marijuana case). In both cases, the primary issue was whether the Federal Government had a right to tell state governments what constituted a legitimate medical use of a substance. In Raich, the Court ruled that the Feds did have the right to impose the view that marijuana did not have a legitimate medical use. In Oregon, the Court ruled that they did not have the right to say that assisted suicide was not a legitimate medical use.

Of course, Thomas thinks the Court was right in Raich and therefore wrong in Oregon, whereas I think the Raich should be overturned. But I think Thomas makes a good point in linking the two cases.

Satya:

Actually, given that Thomas dissented in Raich, he almost certainly cited that decision with a certain degree of sarcasm. Especially since he normally opposes stare decisis (or however the hell you spell that…).

Not necessarily. Thomas may have dissented in Raich, but he didn’t dissent in the more analogous case of Oakland Cannabis Buyers’ Club case four years earlier. That case, like this one, focused on Congressional intent rather than the constitutional issues that were at play in Raich.

It also seems a bit odd for you to bash Justice Scalia for hypocrisy in failing to dissent in Raich, even while also bashing Justice Thomas for refusing to adhere to precedent. Either criticism alone is viable, but together, they create a “heads I win, tails you lose” scenario: if a conservative judge dissented in Raich, he’s a rogue who ignores precedent; if he voted with the majority, he’s a hypocrite who ignores the Tenth Amendment whenever it suits his eeeeevil right wing agenda. Pick one.

Also, to the extent anyone can be said to have “voted against Oregon’s state rights,” the answer is all the Justices who ruled that Congress has the power to prohibit physician assisted suicide by controlled substances. Which, of course, means all nine of them.

Xrlq:

It also seems a bit odd for you to bash Justice Scalia for hypocrisy in failing to dissent in Raich, even while also bashing Justice Thomas for refusing to adhere to precedent.

Good thing I did neither thing. I bashed them for hypocrisy in deviating from their stated constitutional principles, which both did. It may have manifested itself in different ways in different cases, but that doesn’t mean they didn’t do it. If Thomas’ dissent is to be taken at face value, it’s hypocritical because it respects precedent, something he argues should not be done. But in both cases, they had an opportunity to state that the federal government had overstepped its bounds (which, in fact, Thomas did argue in Raich), but neither did so.

You’re missing the point – neither ruled that the federal government had overstepped its bounds because that’s not what the friggin’ case was about. This case construed a statute, not the Constitution.

If anyone was a hypocrite here, it was not the three conservatives, who ruled in 2001 that Congress intended no exception for medical marijuana, and who ruled in 2006 that Congress did not intend one for physician assisted suicide, either. Those views are both bad policy IMO, but they are logically consistent and, more importantly, they probably are the result Congress intended. The hypocrites in this drama, if there were any, were the five Justices who managed to say with a straight face that Congress did not intend an exception for medical marijuana, but did intend one for physician assisted suicide. Does anyone really think that Congress favors a policy of allowing terminally sick people to kill themselves, but not to smoke a little weed to ease the pain and stay alive instead?

Thank you Xrlq for a very precise analysis of the case. I’m with you 100%. With luck, rulings such as this one will continue to draw attention to the underlying law and maybe some momentum will be gained to fix the problem at its root.

Can you provide an example were Clarence Thomas made a blanket denouncement of adherence to precedence, as you’ve accused him of? He may not hold it in the same high regard you do (or at least claim you do when it’s convenient), but it’s a long walk from saying ‘precedent shouldn’t be respected in this particular case because _____’ and saying ‘precedent should never be respected’.

Xrlq:

But if the statute in question (or some aspect thereof) violated the enumerated powers of Congress as listed by the Constitution, why wouldn’t one point that out in this case? If a lawsuit concerning the statute isn’t the appropriate time to rule on such a matter, what would be?

If anyone was a hypocrite here, it was not the three conservatives, who ruled in 2001 that Congress intended no exception for medical marijuana, and who ruled in 2006

Bwuh? What case on medical marijuana did the court hear in 2001? US v. Oakland Cannabis? Who are the “three conservatives” in question here, given that Roberts was unknown at the time?

Stormy:

Mainly, it’s his voting record, although I will admit that I was wrongly attributing Scalia’s characterization of Thomas’ jurisprudence to Thomas himself.

Bwuh? What case on medical marijuana did the court hear in 2001? US v. Oakland Cannabis?

That is correct. That case focused on the same basic substantive issue as Raich, namely whether federal law precluded the state of California from allowing an exception for medical marijuana. The only difference was that the 2001 case, analogous to yesterday’s, focused on whether Congress intended to allow a medical exception, not on whether the Tenth Amendment required it to do so.

Who are the “three conservatives” in question here, given that Roberts was unknown at the time?

My bad; obviously, it matters little that Chief Justice Roberts’s 2006 ruling was consistent with Chief Justice Rehnquist’s from 2001. My point stands, however, regarding Justices Ginsburg, Souter, Kennedy, O’Connor and Stevens. [It's probably true of Justice Breyer, as well, but we'll never know since he recused himself in the 2001 case.]

[...] I blogged a while back on the Oregon assisted suicide case, but Publius has a more detailed analysis of the ruling, and argues that the “liberal bloc” of justices may not have ruled in a manner that’s as inconsistent as some have claimed. Go read it. [...]

[...] Stop the ACLU, you can guess what side they are on here. Uncle of at Saysuncle seems to agree with me. He links to Tom over at Lean Left who comments on States Rights. Also links to Clam, who is happy with the voting split moreso then the desicion itself. [...]