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Monday, June 06, 2005


Astonishing that PrawfsBlawg has remained so quiet on the Raich front.  Have we nothing to offer?  Perhaps we are feeling wounded that SCOTUSblog has invited every consequential blawger and his/her mother to comment on the case--with no one from this here blawg representing.  Or maybe our silence is attributable to the fact that I'm the only ConLaw teacher here right now (when does Trevor start?) and I've been busy putting my life in boxes for my cross-country trip later this week. 

Many have noticed that the liberals are the ones who screwed the stoners: if two old reliables had voted their policy preferences rather than their jurisprudential principles, we'd have all gotten a better result.  At the very least, we liberals would have gotten something positive out of Lopez and Morrison--the two decisions we love to hate.  So we have no choice but to ask: what's with our people at One First?  Why couldn't they hook us up?  They gave us the right to engage in homosexual sodomy even though there was some bad precedent to overcome along with indeterminate text in that situation as well.  What gives?

Here's a theory: Every judge has to vote against his/her policy preferences sometimes to show that his/her jurisprudential principles are driven by honest and policy-preference-proof foundations.  In the regard, see, e.g., Scalia's routine invocation of his First Amendment jurisprudence as proof of his commitment to his principles over his political preferences.  Perhaps here the liberals wanted to show their commitment to their jurisprudential principles, where they viewed the cost as nominal: although they favor decriminalization of marijuana, they just don't care about it enough to make a stink--and they like the opportunity to be seen as voting against their policy preference more than they feel the need to facilitate decriminalization.  When it comes to sodomy and other more important interests in personal autonomy, the liberals are much more willing to leave precedent and text aside--or at least be more creative with it--to make sure their policy preferences get encoded in the law.  They don't, as they do in Raich, trust Congress. 

Liberals, of course, are not the only ones guilty of selective integrity at the Court, singing the virtues of the democratic process while at the very same time subverting it.

Posted by Ethan Leib on June 6, 2005 at 10:27 PM in Current Affairs | Permalink


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» Where Did All the Federalists Go? from The Debate Link
The Medical Marijuana case, Ashcroft v. Raich, has come down in favor of the government. The Court ruled that the federal government could ban non-commercial use of medical marijuana as part of its general statutory scheme against drug use. For the e... [Read More]

Tracked on Jun 7, 2005 12:40:52 AM


Is favoring medicinal marijuana really a strictly liberal policy choice? I believe some polls have put public support around 75% and as some blogger pointed out, Thomas and Rehnquist not joining O'Connor's part III might indicate that they're not so opposed to medicinal marijuana policy-wise. And not that I know anything about Breyer, but mightn't his work on the Sentencing Commission indicate some approval for current drug laws?

Posted by: 123 | Jun 7, 2005 10:26:51 PM

I don't know why this should create such a stir. Isn't everyone a crit yet? C'mon people: you're not cynical enough, clearly.

Posted by: Paul Gowder | Jun 7, 2005 10:01:13 AM

While not a ConLaw Prof, I am a ConLaw geek so I feel your pain, Ethan. Perhaps we can get the SCOTUSBlog people to include a Prawfblawger for Brand X Internet or Grokster, or somesuch remaining case.

The liberals did screw the stoners and did so in exactly the same manner they have always wanted to. Lopez & Morrison hvae been accused of being wrong by the left for along time and if Raich isn't a limit on the Lopez & Morrison expansion of State power I do not know what is. So, we have the liberals following the same ideas from the dissents in Lopez, et al. striking California's act. Okay so far.

Now why did Lawrence come out the way it did? More interesting questions but in Lawrence we move from private, personal actions with impacts on other people to private consensual acts that don't leave the bedroom. Privacy implications much greater in the latter and I think distinguishable enough from a jurisprudential standpoint to justify the court's different treatment. Now, the realpolitik of the situation is that O'Connor did vote against her policy preferences here supporting your theory. I am uncertain, however, if the policy preferences may not be contained in how to make the policy changes. The CSA is still out there and is a lot easier to change as is the FDA Schedule regulations compared to the Constitution.

My two cents before I am fully caffeinated.

Posted by: Joel | Jun 7, 2005 9:54:28 AM

I agree with Ken J. The liberals are scared to death of limits on the Commerce Clause because they very well could mean striking down parts of the Endangered Species Act and similar regulations of "non-commercial" matters (or even commercial, if Thomas had his way). In this regard I had an interesting conversation with a liberal lawyer friend of mine the other day. I pointed out that the original constitution had two checks on federal governmental power: enumerated powers and the Bill of Rights. I pointed out how giving the federal government plenary power will give it complete power over things that the Bill of Rights doesn't protect (at least as it is interpreted). One example I gave was a ban on partial birth abortion (one that would pass constitutional muster under Casey).

Although he admitted that it is a bit scary giving the federal government such power (as he doesn't like the idea of a nation-wide partial birth abortion law), he said he would not trade a limit on it via the doctrine of enumerated powers for the federal government being powerless to enact things like the ESA and minimum wage laws. Basically he said that he'll take some tyranny if it means that the federal government gets to keep legislating for what he believes is the common good.

That's the view that the liberals on the Court have of Lopez/Morrison. It's a deal with the devil that they don't want to make. Am I right?

Posted by: Raul | Jun 6, 2005 11:54:20 PM

I think the libs just realized that they had more to lose in the long run by buying into federalism than they had to gain by getting the feds out of medical marijuana.

Posted by: Ken J. | Jun 6, 2005 10:51:49 PM

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