In Gonzales v. Raich, a bit of judicial activism would have been constitutionally correct and would have also increased our liberties, but the judges took a pass and went with the will of the majority.
For precedent, they relied on Wicard v. Filburn, or the “Every move you make affects interstate commerce” decision from the New Deal era.
Finding a right to abortion tucked away in a penumbra might be a stretch. Finding, nearly 150 years after the fact, that a single line in a list of enumerated powers grants Congress unlimited authority over the people and renders the entire rest of the list completely redundant and insignificant is… well, whatever it is, the abortion penumbra pales to insignificance, nay complete invisibility next to it.
Seriously, under any theory of Constitutional interpretation that doesn’t assume that the Founders were all higher than a treeful of monkeys on nitrous oxide, can anyone possibly conclude that any rational interpretation of a list of enumerated powers could find this meaning:
Congress shall have power
– to do A
– to do B
– to do C
…
– to do R
– to pass any other laws concerning any activity whatsoever including growing vegetables in your backyard, given that anything you do might affect someone’s decision to buy or sell something across state lines.
All you folks screaming about Bush’s supposed efforts to destroy civil liberties should note that the Democrats are the ones employing every tool they can get their hands on to preserve this sort of jurisprudence, and Bush is the one trying to inject a few judges that see the New Deal reasoning as the thinly-veiled power grab it is. (Of course, in your world, it seems that “civil liberties” don’t apply to Americans buying stuff and selling stuff, but only to Muslims allegedly trying to blow up stuff. Which do you think is a greater threat to society?)
ken, let it be remembered that many of the Left are enemies of commerce. Because God [read: Marx] forbid that anybody ever makes a profit!
the judges took a pass and went with the will of the majority
The majority of the electorates of California and Oregon voted for medical marijuana. Honestly, this sounds more like judicial activism – defined as “making a ruling because you think it’s good public policy, rather than because it’s constitutionally required” – than not.
It’s not just the “left” anymore. Justice Scalia authored a particularly chilling concurring opinion in this case. What purpose do State governments serve if the Feds have the Constitutional right to regulate that which is neither “interstate” nor “commerce”?
It never was just the left. But certain politicians on the Right are trying to get judges that do much less of this sort of thing onto the bench – and opposition from the Democrats is rather stiff. But Republicans themselves have also routinely passed laws that should have been struck down, and might actually be struck down by the very judges they’re nominating.
(Maybe that was Bush’s intention all along. He signed Campaign Finance Reform, for instance, for political reasons, figuring the courts would strike it down; when they didn’t, it was time to get serious abouot fixing the courts…)
“The majority of the electorates of California and Oregon voted for medical marijuana. ”
But the majority of the electorate of the United States votes for drug prohibition. And so Congress passes an overriding law, and the judges decline to stop them as they ought to.
One of the many sharp points in Clarence Thomas’s dissent was: it’s all very well to defer to the discretion of the legislature, but the question here is which legislature has competent jurisdiction in this matter.