Great piece by Krauthammer:
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 the use of 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…
Thomas’s 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…
This is what our debate about judges should be about. Instead, it constantly degenerates into arguments about results.
And while we are at it, it dovetails nicely with this George Will piece and this great piece from In the Agora, which is so good it deserves a post of its own.
Steven
The problem with the originalist position is that there wasn’t necessarily agreement on these points at the time the Constitution was adopted. The Hamiltonians advocated a strong central government and strong executive and were scared to death that the states, and particularly the state legislatures, would have too much power. They had a very expansive view of the “necessary and proper” clause that Scalia relied upon in his opinion in Raich. Jefferson and Madison wanted the federal government as weak as possible with the federal power concentrated in the legislature. So if a justice is an originalist today, which founders’ views take precedence?
gratefulcub
Maybe 5% of the nation cared about judges until the current GOP started attacking
Rick
To borrow from my cliche on the next thread down, some of the Dem mewling and whining about GOP talking points, and alleged strategies and successes, make *me* fell like I’m 10′ tall.
If I were, then my current weight would be close to ideal.
Cordially…
JoshA
Excellent post, Steven. The split was illustrated in the fact that Madison and Hamilton- the two main writers of the Federalist papers- would later get into a public fight over whether the Bank of the US was constitutional.
Textualism is the only thing that makes any sense to me. Read the Constitution, and does it make sense to you that it would allow Branch X to do action Y? This tends to make me unpopular with my fellow progressives, as I point out that I really see Roe as an incorrect decision (penumbra and emantions? Come on).
I didn’t like the Wickard decision before—the court went from far too restrictive in 1935 to way to lenient in the 1940s. And I really dislike it now.
Justin Faulkner
Steven is right, originalism is really a fraud because it assumes unanimity among the framers. You’ll also find a lot of disagreement between advocates of this doctrine; there is no one “strict constructionist” conclusion on anything. In the end it’s no better than literalism (JoshA), legislative intent, canons of statutory construction, etc.