Wednesday, July 06, 2005

States' Rights

This is another post that I've been sitting on for a few months. I've added to it occassionally, but it's relation to my last post also delayed things. Again, there is an underlying tension between the rights of individuals or companies and the needs and rights of communities.

The Supreme Court, the Commerce Clause, and government regulation:

From age to age, the court’s decisions have revolutionised the relationships between the presidency and Congress, between the federal government and the states, and between the individual and the state.

There are two very different kinds of conservative. The worldly statesman, distrustful of large visions and focused on the prudent management of concrete problems has long been familiar. But Bush has more often relied on neo-conservatives with a very different temperament. They throw caution to the winds, assault the accumulated wisdom of the age, and insist on sweeping changes despite resistant facts. Law is a conservative profession, but it is not immune to the neo-con temptation. The question raised by the coming vacancies to the Supreme Court is whether American law will remain in conservative hands, or whether it will be captured by a neo-con vision of revolutionary change. The issue is not liberalism v. conservatism, but conservatism v. neo-conservatism.

Over the course of the 20th century, the judicial champions of fundamental rights were the pre-eminent advocates of judicial restraint. Justice Felix Frankfurter reconstructed the libertarian foundations of due process doctrine after the New Deal, but was also the modern court’s foremost practitioner of restraint. He passed the torch to Justice John Harlan, an Eisenhower appointee who was the Warren Court’s fiercest critic during its heyday, but also wrote a brilliant opinion which laid the due process foundation for married couples to use contraceptives. As he explained, the court had, for generations, understood the ‘liberty’ protected by due process to include ‘a freedom from all substantial arbitrary impositions’. In his view, a state statute criminalising contraception ‘involves what, by common understanding throughout the English-speaking world, must be granted to be a most fundamental aspect of “liberty”, the privacy of the home in its most basic sense’. Since criminal trials centring on contraception would inevitably require the revelation of the most intimate details of marital life, Harlan joined the court in striking down such statutes. Harlan has died, but the due process tradition endures, and it has been conservative Republican appointees, not Democratic justices, who have taken the lead in further developing the implications of the due process right to privacy.

Judicial revolutions have happened before. The ghost of Franklin Roosevelt haunts our present discontents. In seeking to catalyse a neo-con revolution, Reagan and George H.W. Bush were travelling down the path marked out by Roosevelt during the New Deal. The only difference is that they failed and Roosevelt succeeded. During his second and third terms, he appointed seven New Deal justices who transformed the reigning vision of the Constitution. The aim of the anti-regulatory agenda is to reverse this New Deal revolution and to turn the clock back to the days when the Old Court regularly struck down social welfare legislation.

This last paragraph really struck a chord with me. Part of my interest in this was not to just evaluate what the Constitution says, but really what it means. I took AP History in high school, and I have had an interest in American history that was nutured, in part, by my mother. She took our family on a number of trips by car, and made a point to stop for many historical locations. We visited Gettysburg, Independence Hall and the Liberty Bell in Philadelphia, the Lorraine Motel in Memphis, and even Graceland. I don't mean to imply that Graceland has the same historical significance as the Lorraine Motel, but it was still a cool tour, especially the tour of Elvis' plane that he took to Denver for a Peanut Butter and Banana sandwich (eww). Anyway, my point is that I've felt that I had a pretty good understanding of many aspects of American History, but the Constitution seems to hold much more nuance than at first glance. "Law & Order" holds my interest, in part, for the legal wrangling that takes place in reviewing our Constitutional rights.

Beyond the legal aspects of change within the framework of our Constitution, my interest extends to the social implications of proposed changes. Ironically, a recent Supreme Court decision showed a bit of hypocrisy on the part of some conservative justices. The Chicago Tribune's Clarence Page had a pretty good article about it. The case centered around the medicinal use of marijuana, which is legal in a number of states:

Justice John Paul Stevens' majority opinion stretched the meaning of "commerce" to include anything done in one state that could have "a substantial effect on interstate commerce." And how does the court define "substantial"? Broadly enough to cover just about anything.

"... [P]roduction of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity," Stevens wrote.

Justice Antonin Scalia, the archest of the high court's arch-conservatives, chimed in, if only to say that Stevens' federal "intrusionism" did not go far enough. "Drugs like marijuana are fungible commodities"; even when "grown at home and possessed for personal use," it is "never more than an instant from the interstate market."

Both opinions sound more like economic theory than day-to-day reality. After all, the medical marijuana market is only a tiny fraction of a state's overall drug traffic.

That very rational point, among others, was made by Justice Clarence Thomas, who cut himself loose from his usual tether to Scalia's world view to raise a clear, compelling and badly needed voice of reason: If the two California women who are the defendants in this case are involved in "interstate commerce," he asked, what in these United States is not "interstate commerce"?

"Respondents Diane Monson and Angel Raich use 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," Thomas wrote. "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."

So, which is it? Does the Commerce Clause allow for the federal government to mandate a minimum wage? Does it allow for the creation of environmental standards? Does it allow the Supreme Court the right to overturn state laws legalizing the medical use of marijuana?

If there is a move to a smaller federal government that has the strictly defined and limited powers as conservatives desire, wouldn't that just allow the states more leeway to determine their own paths independently? At first thought, this seems like a good thing. Consider the result: America becomes a group of states that are separate but probably unequal. Doesn't America become more like the Confederate States? There are much broader economic and social implications as well. I'm not really concerned about the implications specifically, I'm more concerned that we take the time to consider the implications. Considering implications of proposed public policy and reviewing the results of existing policy need to be central to the democratic process. The greatness of our Constitution is not what it specifically defines, but it's inherent flexibility -- it's elegance.

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