English 101: Reading and Comprehension

I feel bad for Randy Barnett.  The decision on Ashcroft vs. Raich was handed down this week, and it did not go well for the conspirator, medical marijuana users, or anybody that believes that the federal government should be limited to it's enumerated powers.

Larry Solum has a good summary of the issues here.

One way of viewing the decision in Raich is that it represents a defeat for both the medical marijuana movement and for the Supreme Court’s New Federalism jurisprudence. In sense, these two different forces were brought together in Raich by coincidence rather than by any deep connection. The medical marijuana movement would have been happy if Congress had forced the states to accept legalized medical marijuana. Advocates of the New Federalism might well have preferred if the next big Supreme Court case had involved something other than drugs. Nonetheless, these two forces did come together in Raich.

Randy's take.

To insist that originalists must follow precedent when no one else does (when they don't want to) is less than compelling. Especially when there is good reason to conclude that no precedent should stand in the way of correcting a mistaken interpretation of the Constitution. Like many others, I think Wickard was wrongly decided. The fact that it is a precedent should provide no barrier to its reversal. But, as I said in my oral argument, Gonzales v. Raich now replaces Wickard v. Filburn "as the most far reaching example of Commerce Clause authority over intrastate activity" ever decided by the Supreme Court. For this reason, it will be studied by generations of Con Law students until the day it is finally reversed in favor of the correct reading of the Commerce Clause and Necessary and Proper Clause.

I'm reminded of a comment by some libertarian candidate or another on the subject of litmus tests for Supreme Court nominees.  "I would require that any nominee be able to read."

I'm no constitutional scholar, but I think that the relevant passages are 

"Clause 3: To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;"

and

"Amendment X: 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."

The six justices that "interpreted" the interstate commerce clause in such a way as to allow the government to "regulate" wholly intrastate noncommericial activity, have broken their oath of office.  Either that or they can't read and understand basic english.

UPDATED: This unsigned editorial in the Washington Post takes the contrary view.  I especially took exception to this sentence:

The result is a six-justice majority that stands strongly against a revolutionary approach to commerce clause jurisprudence.

(Emphasis mine) Revolutionary?  Far be it from me to lecture the editorial board of a major newspaper on the subject of English, but do they know what "revolutionary" means?  What about "Commerce between the states"?

They list various reforms that have been justified under the banner of this, I'll say "innovative", interpretation of the commerce clause - worthy causes all, I'm sure, but reforms that should have been enacted through the amendment process, having been debated in the legislature, not "interpreted" into existence by the judiciary.

Comments

[Yuriko Kinje]

R.I.P. Article X. Hmm, [looks arround] there isn't much of this Constitution thing left, is there?