Ted Cruz: New Gun Control Proposals 'Unconstitutional'

[Fortinbras Armstrong]

60. Scalia can be shown to ignore Original Intent when it suits him

Last edited Thu Jan 10, 2013, 04:31 PM - Edit history (1)

In the case of Gonzales v. Raich, 545 U.S. 1 (2005), Angel Raich was growing marijuana for her own medicinal use, legal under California law. The Supreme Court, in a 6-3 decision, held this to be illegal under Federal law. A concurring opinion was written by Scalia, who based the decision ultimately under the Interstate Commerce clause of the Constitution and the Necessary and Proper Clause, saying

Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective. As US v. Lopez, 514 U.S. 549 (1995) itself states, and the Court affirms today, Congress may regulate noneconomic intrastate activities only where the failure to do so “could ... undercut” its regulation of interstate commerce. ... This is not a power that threatens to obliterate the line between “what is truly national and what is truly local.

Interestingly enough, Justice O'Connor based her dissent on exactly the same case Scalia based his concurrance, Lopez. She said that Lopez placed limits on Federal use of the Interstate Commerce clause and Raich's use of marijuana came under those limits.

Clarence Thomas, of all people, said that the majority was wrong, saying that Raich grew and used

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. ... By holding that Congress may regulate activity that is neither interstate nor commerce under the Interstate Commerce Clause, the Court abandons any attempt to enforce the Constitution's limits on federal power.

Thomas wrote: "The Necessary and Proper Clause is not a warrant to Congress to enact any law that bears some conceivable connection to the exercise of an enumerated power". He went on to say "Congress presented no evidence in support of its conclusions, which are not so much findings of fact as assertions of power," and concluded: "Congress cannot define the scope of its own power merely by declaring the necessity of its enactments".

The gist of Thomas' dissent comes straight out of original intent:

Respondent's local cultivation and consumption of marijuana is not "Commerce ... among the several States". Certainly no evidence from the founding suggests that "commerce" included the mere possession of a good or some personal activity that did not involve trade or exchange for value. In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana.

I believe that here, Thomas is quite right, and Scalia only really supports "original intent" when he agrees with it.