Pirates of the Constitution

I’ve long thought the left didn’t care for, nor respect the Constitution. I still don’t. But I’ve long though the right cared for and respected it. Now I don’t.

Click here to read how Dean Esmay lays it out very, very well. An excerpt:

Conservatives talk a good game about states' rights. We now know that many of them are bald-faced liars. Antonin Scalia chief among them, along with anyone else who endorses this obscene decision

Kudos to Sandra Day O'Connor, William Rehnquist, and Clarence Thomas for actually understanding what the 10th amendment says and means, and not just using it as a figleaf to hide party-line right-wing opinions.

...

Mind you, I have nothing good to say about the so-called "liberals" on the bench, who should all obviously be called "statist control freaks" instead. But Scalia takes the cake. This is the man who said sodomy laws could stand because it's wrong to encroach on state law? Liar. He obviously made that decision because of his contempt for gay people, no more. (Thomas and Rehnquist, though, have just illustrated that you CAN hold a states' rights position and really mean it sincerely.)

This whole thing is scary for a number of reasons. But the #1 reason is the lack of choice for American voters. Federalism is effectively dead, if the elites on both sides won't back it once they are in power. This and McCain/Feingold should be the two biggest domestic political issues of the day, but they are not.

The logic of the decision is indefensible, as Justice Thomas shows:

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. 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.

The judges have simply chosen to ignore the Constitution- as they did in Roe v. Wade. It wasn't convenient so toss it.

Wait, it isn't THAT simple. There is, of course, a line of reasoning which rationalizes the decision- just as there was for Roe v. Wade. According to Ann Althouse, it goes like this:

I’m not at all surprised by the Supreme Court’s opinion in Gonzales v. Raich. Justice Stevens, writing for the six-member majority, relied heavily on Wickard v. Filburn, a 1942 case that upheld the regulation of a farmer’s production of wheat that he grew for use on his own farm and never intended to sell. The Wickard Court interpreted the Commerce Clause to allow regulation of the entire market on the ground that even trivial components on the market count, because, taken together, they have a substantial effect on interstate commerce. Home consumed wheat was part of the market both because it supplied the home-use needs of the farmer who would have had to buy it in the market and because the farmer might change his intentions and decide to sell it in the market.

So in 1942 a bunch of assholes said the Fed can control wheat a man won't sell at all, much less sell across state lines, becauase if he didn't grow it he MIGHT choose to eat wheat that WAS grown across state lines, so his growing wheat changes the price of wheat everywhere in the US.

Based on this, "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" must be regulated by the Fed. Why, though?

Again, according to Althouse:

if noncommercial, homegrown marijuana were seen as beyond the Commerce Power for medicinal users, it is also beyond the Commerce Power for recreational users.

So what's the problem? There IS no national market for marijuana, is there? Can you sell marijuana futures now? It is a bit frustrating, for those of us who don't study law, when lawyers talk amongst themselves. Althouse is a very smart woman, she must have some good reason to support this idiocy- I don't think she's purposefully hiding it- but I also don't think she's explaining it simply and clearly.

Here is the 10th Amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Can anyone to explain logically and clearly why it is okay to ignore the simple wording of the 10th Amendment? The Constitution, not previous rulings by the Supreme Court, is the law of the land. When a precedent is used, in practical terms, to subvert the Constitution, that precedent either does not apply or should be tossed. You don't toss the Constitution.

UPDATE:
Ann Althouse was good enough to answer the 1st of my questions, which I posed to her in the comments section. (yes, I’m aware of the spelling problem, lol.)

Ann, (or anybody)
Can you refute this, from Thomas, please?
"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. 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."
Also- can you explain it without making reference to precedence? I mean no precedence trumps the Constitution, right?
thanx

She answered:

Harkkenodog: Thomas is arguing for a narrower interpretation of the Commerce Power than what the majority accepts. The majority thinks that the plaintiffs' behavior, taken in the aggregate, does have a substantial effect on interstate commerce and falls within the Commerce Power for that reason. The "substantial effects" theory has the potential to justify anything Congress wants to do, and if so, the basic concept of enumerated powers would be destroyed, as Thomas notes. The best defense of the majority position in answer to that is that regulating components of an interconnected market is something that belongs within the Commerce Power and you still have something falling outside of that power: behavior that is disconnected from an interstate market.

So I asked:

Ann,
Thank you so much for answering. But I still don't understand- "that regulating components of an interconnected market is something that belongs within the Commerce Power and you still have something falling outside of that power: behavior that is disconnected from an interstate market."
There IS no interstate market, right? CA can only make it legal in CA, right? I mean are they regulating illegal markets?
Also, how does the Commerce Clause trump the 10th Amendment? "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
Does the Commerce Clause spring from TWO amendments or something?
Thanx again. I'm sure this is rudimentary stuff... I just don't get it.

And she answered:

Harkennodog: The way it's analyzed, the homegrown product, though not bought or sold, is still related enough to the market because: 1. it supplies the users need which would be supplied by the market if he didn't grow it (thus, growing your own affects the market by reducing demand), and 2. it "overhangs the market" and might flow into the market (for example if the price went way up).

The 10th amendment is interpreted as just another way of saying that Congress has a limited set of powers -- it's a redundancy in this view, not a source of independent limitation on the powers. So you figure out the scope of the Commerce Power and then what's left to the state is whatever is beyond that scope.

So, there it is. “The 10th amendment is interpreted as just another way of saying that Congress has a limited set of powers -- it's a redundancy in this view, not a source of independent limitation on the powers.” I suppose this is a nice way of saying the 10^th Amendment is just, er, a waste of ink? A fool’s paradise? A… Here’s what the conversation reminded me of…

Elizabeth : Wait! You have to take me to shore. According to the Code of the Order of the Brethren-

Barbossa: First, your return to shore was not part of our negotiations nor our agreement so I must do nothing. And secondly, you must be a pirate for the pirate’s code to apply and you’re not. And thirdly, the code is more what you'd call "guidelines" than actual rules. Welcome aboard the Black Pearl , Miss Turner .

What a bummer.

(Let me add this is not meant to offend Professor Althouse, who was kind enough to answer my questions. What a wonderful thing the internet is, especially because of people like Ann Althouse. How else could a salesman from Kauai get a legal explanation from a law professor in Wisconsin so quickly? What a revolution we are in the midst of.)

For a little more info about how the Commerce Clause turned the 10^th Amendment into what you would call a guideline, as opposed to an actual law, click here to read this by Thomas Sowell.