Tuesday, June 07, 2005

SCOTUS and marijuana

Okay, I have had a day to cool off, but I am still pretty ticked about the recent decision on medical marijuana. (Full disclousre - tried it, didn't like it, prefer to be a happy drunk). The interesting thing about this opinion though is Scalia's concurrence.
Understanding Scalia, is like playing three dimensional chess while blindfolded. Yes, he did side with the majority on allowing the feds to persecute medical marijuana users. However, if you read his opinion, what he says is that the state of the law as it exists today requires that the feds get involved. The strict constructionist construct of using the law. He pointed out that while it does not make sense to implement the law, the way the Supreme Court has been reaching and expanding the commerce clause, that this was an inevitable result, and that more will follow.
Sort of like Cardinal Richelieu, he has stirred up a fight which will result in something that is different from what he says, but more likely to achieve what he wants. The interesting thing, is that he could have said the same thing while being in the minority, but instead, chose to side with the majority.
Now, why my Liberal friends should be concerned: Sure, all four of the liberal justeices sided with the government in upholding this expansion of federal intrustion into private lives. What about if Congress passes a restriction on abortions beyond the first trimester? Under Scalia's reasoning, the majority is bound to the notion that the government has the right to do so, and to overturn such a law would be in contravention to their decision.
I am looking for a petard company, because I think that there will soon be a great need for more them on which to be hoisted.

1 comment:

Ernest Hesch said...

Ah, nice.