Tuesday, June 07, 2005

The death of the Tenth Amendment

Tenth Amendment
12/15/1791 - 6/6/2005

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Today (well, Monday), the Supreme Court of the United States ruled that federal laws banning all marijuana use supercede states' laws that permit the growing and use of marijuana for medicinal purposes (even when prescribed by a physician).

For the record, I don't use marijuana or any other illegal substances. Nonetheless, I find this one of the Supreme Court's most pernicious decisions ever, even though they've been producing so many lately.

The Court didn't just rule that people can't use marijuana for medicinal purposes. It ruled that Congress can trump state law because of the Commerce Clause, and more. Scalia, who I used to respect greatly, ruled in favor of the federal law and actually wrote this:
"Congress's regulatory authority over intrastate activities that are not themselves part of interstate commerce (including activities that have a substantial effect on interstate commerce) derives from the Necessary and Proper Clause."
Scalia, what happened to you?

Justice Thomas, with whom I've once been greatly disappointed, dissented eloquently and with a great deal of common sense:
Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers.
Thomas understands the issue well. An activity strictly confined to one state can still be regulated under the Commerce Clause, because it has an eventual economic effect on other states? Then nothing prevents Congress from passing laws over whatever it wants.

What incenses me further is that most of the big conservative bloggers, those who blog about politics, haven't said a word about this latest federal encroachment on states' rights.

Little Green Footballs: nothing
Michelle Malkin: nothing
Power Line: nothing

What's the matter, you "conservatives"? Are you afraid to stand up for the Tenth Amendment?

But let me be equal-opportunity in my criticism. A couple of months ago, a number of Democrats opposed all federal attempts to keep Terri Schiavo alive, on the basis of "states' rights." Tell me, will those same Democrats be principled enough to say that the majority of the Supreme Court was wrong in their ruling on Gonzales v. Raich?

Hugh Hewitt is rather optimistic. Yes, it's possible the next Supreme Court could reverse this decision. I think it's just as possible that the next Court will let this decision stand. I'd have never guessed in a thousand years that Scalia -- Scalia of all the justices! -- would so blatantly misread and betray the Constitution.

Dissenting from the other conservatives, Prof. Bainbridge said it very well:
Which is precisely why we ought to view the Supreme Court not as a judicial body, but rather as a super-legislature. Which, in turn, is precisely why we ought to have a serious debate in this country about the nature of judicial review and the role of the judiciary.
The Tenth Amendment is now truly dead. Even Scalia, whom I've praised as having common sense, has fallen into the trap that Congress need only invoke the Interstate Commerce and Necessary and Proper clauses, and it can assume unspecified powers that the Tenth Amendment explicitly reserved to the states.

I still have qualms about Marbury v. Madison, where the Supreme Court established judicial review. It's not inherently bad that the top court can determine if a law is or isn't constitutional, but consider how that authority was established: judicial assumption of that power. It also presumes that the justices possess a great deal of benevolence, intelligence, and understanding of the Constitution. Today's ruling, I think, proved that the Court is still highly deficient in all three.

Dale Franks at Q & O and Man Without Qualities have excellent perspectives on the ruling. Instapundit didn't say much but linked to some excellent blogs discussing it.

I should specify that I think smoking marijuana is foolish and wrong, but that's for the states to control, not the federal government.


Anonymous Anonymous said...

This is the problem that occurs when one side considers the Constitution to be merely a set of antique advisory opinions. The other side eventually says, "Oh yeah, watch this!"

The 10th amendment was dead a long time ago. The commerce clause has been used --for longer than I've been alive-- as a means for the Federal Government to institute whatever policies they felt like. For most (if not all) of that time, it's been the left/liberals -- that is, the same people who are pro-marijuana -- who have been using it to impose their policy preferences on everybody else. This time, they got hoist by their own petard.

Tuesday, June 07, 2005 8:54:00 AM  
Anonymous Anonymous said...

At least we know why the left is silent - this has a direct correllation with that "success" the New Deal, which set up the court cases allowing for a broad, and probably incorrect, interpretation of the commerce clause.

Tuesday, June 07, 2005 11:06:00 AM  
Blogger Brad Warbiany said...

I suggest you go to Findlaw.org and read Scalia's opinion on this case. He actually wrote an opinion because his reasoning was different than the other justices in the majority. I still think his reasoning was flawed, as the Controlled Substances Act, IMHO, is unconstitutional, but he didn't follow the simple Wickard v. Filburn logic.

I also blogged a little about this here, if you want to take a look. I gave an interstate commerce basis for why the US Federal Government should institute a tax harmonization plan across the states. I wonder if most readers will understand the sarcasm?

Tuesday, June 07, 2005 11:55:00 AM  
Blogger Perry Eidelbus said...

I did read the opinions, the PDFs published on the Court's website. So, yes, I'm familiar with Scalia's take. I'm still mind-boggled that a supposed strict constructionist like Scalia would go so far as to invoke "necessary and proper."

Wednesday, June 08, 2005 1:05:00 AM  
Blogger Brad Warbiany said...

Ahh, so that's why he didn't just call the Controlled Substances Act a load of hooey...

Yeah, that is disappointing...

Wednesday, June 08, 2005 8:26:00 PM  
Anonymous Anonymous said...

I would change one thing in your entry: "I should specify that I think smoking marijuana is foolish and wrong, but that's for the states to control, not the federal government." I would imagine that in a country that values Individual Liberty, it would be for Individuals to control, not the government (at any level).

Ian Lewis

Thursday, June 09, 2005 9:53:00 AM  
Blogger Perry Eidelbus said...

That's a good point, anonymous, but at the very least, the federal government has no jurisdiction on the matter. It would be up to the states, or the people.

Let me clarify why I said "now truly dead," when the federal government started ignoring the Tenth Amendment about 170 years ago. It's a reference to Luke Skywalker's sigh, "Then my father is truly dead." Anakin had long since died, after being "consumed by Vader, but Vader's response "I must obey my master" confirmed Luke's fear.

Second, federal expansion began in the 1830s, when it started doling out money for "internal improvements" like canals and railroads. But not until now has the Supreme Court so formally ruled that federal law trumps state law.

Thursday, June 09, 2005 10:12:00 AM  
Blogger Stephen Littau said...

I reached many of the same conclusions you did Perry. I think your 'Tenth Amendment R.I.P.' is a great description of what happened here.

I also wrote a post on this court ruling. If you haven't read it yet, check it out and let me know what you think.

Tuesday, June 14, 2005 3:55:00 PM  

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