The opinions in Ashcroft v. Raich

[DavidEBernstein at aol.com]

I posted my initial thoughts Raich over at the Volokh Conspiracy, and thought 
I'd share them with the list:

Despite my blogging hiatus, I cannot resist making a few quick comments about 
<i>Raich</i>.

(1) The five-member majority of the Court simply does not take federalism 
seriously.  Justice Stevens writes that Congressional factual findings are 
required when there is a "special concern such as the protection of free of speech." 
 Apparently, however, the Constitution's limitations on federal 
power--critical by any measure to the American system of government--are not a "special 
concern," or even especially important.

(2) Justice Scalia's concurrence, unlike Justice Thomas's dissent, does not 
address the original meaning of the Commerce Clause.  This reflects a pattern 
with Scalia, apparent also in his affirmative action, First Amendment, and 
other opinions: he is much more likely to resort to originalist arguments when 
they can be used to undermine Warren Court precedents that conflict with his 
deeply held moral and political views than when such arguments would either 
undermine his political views or challenge precedents that are not on the social 
conservative (tempered, as in First Amendment cases, by Scalia's academic elitist 
solicitude (which I share) for freedom of expression) "hit list."

(3) I predicted the outcome of this case (and think it's remarkable and a 
testament to his talents that co-blogger Randy got Rehnquist and O'Connor to vote 
in favor of his clients) on the theory that wavering Justices such as 
Kennedy, who voted with the majority, would be affected by political trends apparent 
in the United States.  When Kennedy voted with the majority in <i>Lopez</i>, 
congressional Republicans were making serious (albeit hamhanded) efforts to 
limit the federal government, and their rhetoric was even more strongly 
devolutionary. A decade later, the Republican Congress is vying with the Democratic 
Congresses of the 1930's and 1960's as the biggest supporter of increased federal 
power in American history.  Scalia's vote was also likely affected by the 
sense that the Court should not expend political capital, especially with new 
Republican nominees soon to be voted on, on trying to limit federal power without 
any support from the political branches.

(4) There are essentially two strategies for those who are concerned with 
civil liberties for limiting the government's ability to abuse the rights of the 
public.  One is the standard ACLU strategy of being a liberal supporter of 
broad government power, and then insisting that the government respect individual 
rights, especially constitutional rights, when using that power.  The other 
strategy, followed by libertarians, is to try to limit the government's general 
power to begin with because the government cannot abuse power it does not 
have.  The drug war provides a least one example of the superiority of the 
libertarian strategy.  The drug war has run roughshod over the civil libertarian 
accomplishments of the Warren Court, leading to a weakening to various degrees of 
the First, Second, Fourth, Fifth, Sixth, and Eighth amendments, not to 
mention a huge increase in the prison population,  and the denial of the basic right 
to use relatively innocuous recreational drugs, even for medicinal or health 
purposes.  Far better to have denied the federal government the power to 
regulate intrastate use of and sale of drugs to begin with, as, I recall, Justice 
Van Devanter advocated on Commerce Clause grounds way back in the "dark ages" 
of the 1920's.

(5) I was both amused and anchored by Justice Stevens's paean to the 
democratic process as the appropriate avenue of relief for advocates of medical 
marijuana at the end of his opinion.  Every Justice who joined Stevens's opinion 
voted to prohibit states from regulating homosexual sex in <i>Lawrence</i> and 
voted to limit the government's power to regulate abortion in <i>Casey</i>.  Why 
was the democratic process not the appropriate avenue of relief for the 
victims of overzealous government regulation in those cases?  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.


Professor David E. Bernstein
George Mason University
School of Law
http://mason.gmu.edu/~dbernste
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