Wednesday, December 1, 2004

Medical Marijuana

Two thoughts on the medical marijuana case being argued before the Supreme Court right now:

  1. I think we are at a crucial tipping point in the swing of judicial philosophy, and it's possible that a decision for Raich will signal a significant shift in momentum toward a more formal reading of the Constitution. For almost a century, judicial decisions have tended to reflect judges ideas of "justice," rather than a strict interpretation of what our Constitution and laws say. This trend tended to diminish the concept of Federalism, as Congress was granted ever more increasing powers in excess of those explicitly enumerated in the Constitution. Now, the Constitution does not clearly say that Congress has the power to regulate marijuana, especially when it has been prescribed by a doctor in accordance with state law. By agreeing with Raich, the Supreme Court would be reversing the tide, and start consolidating the trend toward real Federalism. There is a reason why this decision is so particularly important, compared to other recent decisions supportive of Federalism (like the striking down of the Gun Free School Zones Act), and that is this:
  2. There is a bit of irony in this case which distinguishes it substantially from several other recent Federalism cases. In this case, the issue being argued is one which, historically, has been anathema to conservatives. Ever since drug use became commonplace in the 1960's, the "right" to use drugs has been a cause celebre for the far left. I would bet a lot of money that readers of High Times magazine are overwhelmingly liberal. And yet now, conservatives are lining up behind the Raich case in droves, because of what it will do to advance the cause of Federalism. (It is also true that legalization of drugs has become accepted policy in certain conservative circles recently, but most liberals probably do not know this). For a long time, I have maintained that liberals have thought that conservatives have been somewhat disingenuous in their support of strict interpretation, because the effect of strict interpretation has largely supported conservative causes. Now, however, the public will see Conservatives backing a case which has historically given them fits. It will finally become clear to many people, that many conservative thinkers care more about the principle of strict interpretation that the substance of what it might accomplish. It will then occur to people that we are serious.

Sunday, October 17, 2004

Jefferson on amending

Just came across a great quote from one of TJ's letters in 1816 regarding the necessity of amending the Constitution from time to time (in this case, he was actually referring to the constitution of Virginia):

"Some men look at constitutions with sanctimonius reverence, and deem them like the arc of the covenant, too sacred to be touched. They ascribe to the men of the preceeding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well; I belonged to it, and labored with it. It deserved well of its country. It was very like the present, but without the experience of the present; and forty years of experience in government is worth a century of book-reading; and this they would say themselves, were they to rise from the dead."

"I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because, when once known, we accomodate ourselves to them, and find practical means of correcting their ill effects. But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors."

This has great relevance for the mission of Amend, Inc.

Comment for today: The first several sentences could have been written today to describe Kerry, and his opposition to the marriage amendment. He is constantly denigrating the push to amend the Constitution, and accusing Bush of "politicizing" it. All this, notwithstanding the fact that he supposedly does not support gay marriages.

Tuesday, October 12, 2004

Marriage Amendment in the debate

The Federal Marriage Amendment is sure to come up again in tomorrow's debate. Kerry will most certainly accuse Bush of trying to divide the country by "politicizing" the Constitution. The appropriate response: the Constitution is a political document. That's why the framers included in the Constitution itself the means to amend it! To suppose that the Constitution could not be altered in response to changes in political sensibilities is preposterous. We would not have the beloved 14th Amendment if that were the case.

In this particular case, the Constitution needs amending because of the capriciousness of many of our present-day judges. The framers of our Constitution most certainly could not have guessed that the definition of marriage would ever be questioned. Thus, they saw no need to define marriage. Things have changed; the definition of marriage is indeed under assault. The appropriate response therefore would be to change the Constitution. If the Amendment fails, it would fail for political reasons - its backers could not secure the required 2/3 vote in each house, and concurrence by 3/4 of states.

Ten Commandments

Today, the Supreme Court announced that it would rule on two cases having to do with the display of the ten commandments in government spaces. It would be truly bizarre if they were to rule that the display of the ten commandments was somehow unconstitutional in light of the fact that they are on display in the very courtroom where the judges have been deliberating for their entire tenure on the Court.

I suspect that, once again, the outcome will hinge on Justice O'Connor. She has disappointed of late, and I would not be surprised if once again she proved anathema to those who value the legacy of our Constitution.