House of Eratosthenes

Supreme Court stuff is extraordinarily dull, so perhaps readers will find this helpful if I make this really short. Or anyway, as short as I possibly can.

Whether I’m trying to make things short, or not, I’m a big fan of separating out what is within the realm of dispute, from what is not. So in the interest of brevity, I’ll summarize Thursday’s Supreme Court decision of Kelo v. New London, in which eminent domain is upheld, as feared by lovers of individual liberty everywhere whether they are conservative or liberal. That’s all I will say about the decision itself, other than that I don’t like it.

Conventional Wisdom says it’s a good thing for our individual liberties President Bush has not nominated anyone to the Supreme Court yet, since it’s easy to predict the values of such a nominee. Conventional Wisdom says that this nominee would be a danger to freedom, because he would closely resemble a construct of three sitting justices: Chief Justice Rehnquist, and Associate Justices Scalia and Thomas. This is not beyond dispute, because I’m disputing it. But it is Conventional Wisdom. Conventional Wisdom didn’t get here by accident; it commands a certain amount of respect. So by all means let’s take a look at it.

First we have Kelo, signed by Stevens, Souter, Ginsburg, Breyer, and Kennedy, which is a direct slap in the face to individual liberties, violating the spirit if not the letter of the Fifth Amendment “Takings Clause”. The three model justices joined in a dissent to this opinion that was authored by Sandra Day O’Connor, one of the “swing” justices. That’s right, the three guys who “prove” what an assault upon individual freedoms would be inflicted by a Bush nominee, dissented in this opinion that is agreed upon by both sides of the aisle as an assault upon individual freedoms. So here’s a problem.

But hey, the Supreme Court decides lots of opinions every session, and this is just one opinion. So let’s go back to the next-most-recent controversial opinion and see if reality starts to become a bit more friendly to the conventional wisdom.

On June 6, the Supreme Court delivered Gonzales v. Raich which upholds a virtually unlimited authority by Congress to regulate Marijuana and other controlled substances. This is another assault on individual freedom. Is that within the realm of dispute? Not really. Some very conservative people like to see penalities imposed on the consumption and distribution of controlled substances, but they don’t dispute that this is against personal freedoms, they simply infer that this would be a “good thing” or that it is somehow a legitimate exercise of power. Well when the Supreme Court agreed that this was consistent with the Constitution, the opinion was dissented by — you guessed it, O’Connor wrote the opinion, and she was joined by Rehnquist and Thomas. The majority opinion that gave the green light to this expansion of federal power, at the expense of individual freedom, was signed by — oopsie-daisy, it was Stevens, Souter, Ginsburg, Breyer, and Kennedy.

Scalia joined the majority in this one, purely on principles of stare decisis — he felt obliged to enforce previous opinions that broadened the “interstate commerce” authority on “public interest” grounds. But if you read his separate opinion, it’s hardly a ringing endorsement.

Since Perez v. United States, our cases have mechanically recited that the Commerce Clause permits congressional regulation of three categories: (1) the channels of interstate commerce; (2) the instrumentalities of interstate commerce, and persons or things in interstate commerce; and (3) activities that “substantially affect” interstate commerce. The first two categories are self-evident, since they are the ingredients of interstate commerce itself. The third category, however, is different in kind, and its recitation without explanation is misleading and incomplete.

It is misleading because, unlike the channels, instrumentalities, and agents of interstate commerce, activities that substantially affect interstate commerce are not themselves part of interstate commerce, and thus the power to regulate them cannot come from the Commerce Clause alone. Rather, as this Court has acknowledged since at least United States v. Coombs, 12 Pet. 72 (1838), Congress’s regulatory authority over intrastate activities that are not themselves part of interstate commerce (including activities that have a substantial effect on interstate commerce) derives from the Necessary and Proper Clause. And the category of “activities that substantially affect interstate commerce,” is incomplete because the authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws governing intrastate activities that substantially affect interstate commerce. Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce.

So although Scalia concurs in the judgment that awards authority to Congress to regulate intrastate pot transactions as if they were interstate commerce, he is doing so as a referee, laboriously implementing the rules of the game based on previous opinions — not from puritanical zeal to force common people to adhere to “blue laws” in the living of their everyday lives. If he’s showing how a Bush nominee can strike at the very heart of our ability to live in a free society, then I must say he’s done a rather poor job of it.

So let us go back further, since the trend cannot hold, being as it is such a slap in the face of conventional wisdom. Surely we can find some of these Bush-friendly justices messing around with our personal freedoms, can’t we? Let’s examine the two-year-old decision of Lawrence v. Texas which strikes down state anti-sodomy laws on Fourteenth-Amendment grounds.

Jackpot! The Lawrence decision protects our sacred Constitutional right to exercise that freedom that is most important to our dignified existence as free and sentient beings, the right to insert our penises into the anuses of other men! What could be more of a linchpin of freedom, more of a keystone to the Spirit of 1776, than that. And the three old gray dolts who most closely resemble a future Bush nominee, dissented from the decision, which proves they must be out to regulate how us common people fornicate. Oh, this is rich, I just knew Scalia looked right for that Puritan outfit, complete with the tall black hat, the blunderbuss and the shoe buckles. What an overzealous regulator he is, daring to dissent from this opinion. What a tight-ass cracker. What a Quaker. Let’s take a look at the dissent he wrote, which was joined by Rehnquist and Thomas. It’s always interesting to see how these Bush people want to regulate every single facet of our lives, isn’t it?

That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one’s fellow citizens is one thing, and imposing one’s views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts–or, for that matter, display any moral disapprobation of them–than I would forbid it to do so. What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new “constitutional right” by a Court that is impatient of democratic change. It is indeed true that “later generations can see that laws once thought necessary and proper in fact serve only to oppress,” and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best.

Ooh. It appears his opinion is based on simply respecting the wishes of others, without regard to his personal feelings about it. Rehnquist joined this without comment, and Thomas wrote two short paragraphs that essentially repeat this sentiment in different words.

These are the three “conservative” justices who are supposed to be out to rob us of our individual freedoms.

I think I have extrapolated the three most controversial decisions of the last two years. Did I cherry-pick the decisions that made these three puritanical justices look deceptively Jeffersonian? Or has the time come to re-think our conventional wisdom? My opinion for now, is that a far greater danger to our freedom to exist as thinking individuals, is presented to us in the liberal wing that President Bush would water down: Stevens, Souter, Ginsburg and Breyer, with help out here & there from Justice Kennedy. But I’ll leave it to the reader to decide.

In the meantime, let’s resume our normal routine of never, ever, NOT EVER, thinking about the judicial branch, and the awesome, life-long, unchecked power it holds over our very existences as legal entities, in both civil and criminal matters, except when we simultaneously cogitate about pregnant women and bloody coathangers. After all, Conventional Wisdom says that is what justice in America is all about.

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Conventional “Wisdom”?Friday, June 24th, 2005

Conventional “Wisdom”?
Friday, June 24th, 2005