Sunday, June 12, 2005

Crime & Federalism responds to Orin Kerr re. Scalia & Raich

As regular readers know, I'm interested and puzzled by the lineup in Gonzalez v. Raich, formerly Ashcroft v. Raich, the commerce clause/ medical marijuana dustup that recently transfixed a teensy, tiny portion of the nation, and made for breakfasttime reading and watercooler discussion for much of the rest.

Orin Kerr had lately posted some thoughtful remarks at the Volokh Conspiracy, here, saying that Scalia "clearly" (probably not his word, I'm interpolating) couldn't have been a zany activist anti-originalist anti-drug use zealot, because look at Kyllo (the can't-use-thermal-imaging, it violates the Constitution decision) or Booker (must prove sentence-enhancing facts beyond a reasonable doubt to a jury, if they are not admitted, or it's a Constitutional violation).

I intuited that Kerr was wrong, but wasn't able to explain why.

Now comes Mike from Crime and Federalism, with this nice little reply: Raich, Drugs, and Scalia's "Originalism".

I think federalists (lowercase f, meaning states' rights, individual rights supporters who dislike expansion of federal government authority without limits... as would most people, if you take it to extremes) are particularly upset by Scalia's decision, which looks unprincipled if you read the main O'Connor's dissent and Thomas' dissenting opinion.

Me, I wouldn't have expected Justice Scalia to side with the dirty hippies he so loathes. But sometimes people are conflicted. I don't know if he was in this case. We can only speculate.

I note that Ann Althouse has also blogged on the "Where were the Justices & What were they thinking" theme, particularly defending Scalia on this very point, here at "Who was inconsistent about federalism in Raich?".


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