I would be gone the day that Raich came out (see post below). I've been reading different blogs and commentary about the decision and I will give credit where credit is due: Thomas and Rehnquist were consistent with their principles. I have voiced my disagreement with them in the past on certain issues, and I thought of the federalists on the Court, Thomas and Scalia would vote for Raich, but not Rehnquist. Even though I think that he has done a great deal of damage to the constitution with his state-centered majoritarianism, I admire Rehnquist's joining this decision.
I am surprised and disappointed in Stevens. It seems his commitment to unfettered congressional authority overcame his sympathy. I figured that of all of the Lopez etc. dissenters, he was the most likely to vote for Raich.
I am really disappointed in Kennedy and Scalia for abandoning principles that they claim to hold. Randy Barnett, Raich's lawyer and the person I want on the Supreme Court, gives his take on the decision here and here. He takes Scalia and Kennedy to task. Orrin Kerr over at Volokh tries to defend Scalia by pointing out that Scalia ruled in favor of drugs in a couple of cases.
Orrins post, however, misses some substantive points: Kyllo (an opinion by Scalia) argues, from originalist perspectives, that the limitations on government were proscribed by the constitution. Scalia in Raich never even answers anything that Thomas says. His originalism deserts him when it comes to this case. Second, what fundamental changes come about from Kyllo (I'll deal with Booker in just a minute)? None. It limits, to a small degree, how searches are conducted. Cops can use the thermal imaging device. They just have to get a warrant first.
Scalia did join, not author, the opinion in Booker, and that did declare the sentencing guidelines unconstitutional. But even though this decision created an uproar in federal sentencing, the opinion does not prohibit the feds from giving some poor bastard 20 years for a firearm (second) offense. Rather, if the government wants to sentence somebody to such a long time, they must follow proper procedure.
The decisions cited by Orrin, then, do not impose substantive limitations on Congress' power. They impose procedural limitations on Congress' power. That is a large difference. In Raich, the petitioners were saying that certain things were beyond the power of government. Scalia says, "No, they are not", contrary to his own espoused judicial philosophy and to his prior decisions.
The bright shining spot in this is not just Thomas's dissent. Rather, it's Thomas's citation of Barnett's articles. I would like to see (I hesitate to say hope) that this will generate further interest in Randy's articles. If more justices start reading books like The Structure of Liberty and Restoring the Lost Constitution, we might find that we as citizens regain areas of our lives that are free from governmental intrusion.
Thanks for the additions to the "Must Read" list!
And Thomas' dissent does give me hope.
- hfs
Posted by: HomefrontSix | June 20, 2005 at 12:00 PM