To onlookers from both sides of the political spectrum, the dissent of Supreme Court Justice Clarence Thomas on the recent medical marijuana case might have sent their delicate mental balance into fibrillation. How could he — as so many pot-heads or skin-heads out there may now proclaim, in abject confusion — be in support of dope?
Naturally this conclusion is ludicrous. The Left will evantually forget this as an embarrassing blip in an otherwise pristine and predictable line of ultraconservatism ushering forth from Thomas the Rightwing Demagogue. The right may be quicker to understand and forgive.
In his important 10 June 2005 column in The Washington Post, Charles Krauthammer wrote in detail of Justice Thomas — his perception by the public and politicos, as well as by the public. In particular, he investigates the issues with an aim to bypass the lazy habit of simply looking at assent or dissent , but instead appreciating the process of rulings — the means, not necessarily just the end. It is only in the means, Krauthammer argues, that you can take the full measure of a Supreme Court Justice.
Lest we forget: the decision in question, GONZALES V. RAICH, was effectively that a California state law allowing medical marijuana use was trumped by federal law forbiding it. Justice Thomas, along with Justices William Rehnquist and Sandra Day O’Connor, were in dissent. These three justices would have preferred to cede authority to the states on this issue.
Justice Thomas’ separate dissent opens:
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.
Krauthammer contrasts this pure and originalist dissent of Justice Thomas with the concurring majority decision to which Justice Antonin Scalia agreed. Given that it seems rare indeed that these two are on opposite sides of a SCOTUS decision, the analysis is particularly interesting.
While Scalia’s opinion is studded with precedents, Thomas pulls out founding-era dictionaries (plus Madison’s notes from the Constitutional Convention, the Federalist Papers and the ratification debates) to understand what the word commerce meant then. And it meant only “trade or exchange” (as distinct from manufacture) and not, as we use the term today, economic activity in general. By this understanding, the federal government had no business whatsoever regulating privately and medicinally grown marijuana.
So, whatever the personal beliefs of Justice Thomas that might have swayed him toward a decision that would have the effect of limiting medical marijuana use in the United States (arguably a conservative, even ultra-conservative, view), he never flinched from his more originalist proclivities. As a non-scholar but merely a concerned observer of the Judiciary, I found this refreshing and encouraging.
Krauthammer goes on to consider Justices Thomas, Scalia, and Stephen Breyer as three benchmarks on the judiciary spectrum:
With Thomas’s originalism at one end of the spectrum and Scalia’s originalism tempered by precedent — rolling originalism, as it were — in the middle, there is a third notion, championed most explicitly by Justice Stephen Breyer, that the Constitution is a living document and that the role of the court is to interpret and reinterpret it continually in the light of new ideas and new norms.
While I don’t know enough of Justice Scalia’s inner thinkings to agree or disagree with this “rolling originalism” label, the pin for Justice Breyer seems apt. I have seen and heard plenty of Breyer quotes noting how the United States should look to the judiciaries of other nations in order to shape our own jurisprudence, a notion that I as an American find most disconcerting.
Stephan Kinsella, a libertarian lawyer who blogs at StephanKinsella.com, wrote an interesting piece at the Mises Economics Blog (affiliated with the Ludwig von Mises Institute). He observes:
Once again, Clarence Thomas illustrates my claim that conservatives–at least, conservative judges–tend to be better on economic liberties than liberals, and even better on most personal liberties, like freedom of speech.
Reading Kinsella, one would think that another ‘ism’ might well be affixed to Justice Thomas: Libertarianism. However, how useful yet another label would be, I have no idea. I only toss it out for debate among those more learned than I, a mere amateur spectator who is concerned in a humble yet sincere way with the path that the courts have taken over the last few decades.
To that end, I especially like Krauthammer’s supreme parting volley:
I hope President Bush nominates Thomas to succeed Rehnquist as chief justice, not just because honoring an originalist would be an important counterweight to the irresistible modern impulse to legislate from the bench but, perhaps more importantly, to expose the idiocy of the attacks on Thomas that will inevitably be results-oriented: hostile toward women, opposed to gun-free schools . . . and pro-marijuana?
In the broader view: the national debate regarding the judiciary should not degenerate into wild arguments over a nominee’s one, or two, or twenty opinions. The debate should be about the justices themselves and whether they simply interpret the law — and thus, realize that they are not at liberty, as unelected public servants, to divine law de novo from the bench.
Cross-posted at TMH’s Bacon Bits
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