As I begin yet another day mired in Commerce Clause jurisprudence I am struck by the emerging concern that this oft misused doctrine is begining to generate...again.
The Wall Street Journal pipes up today with an editorial concluding that the high Court's recent decision in Raich "was not a good decision for anyone who believes there are Constitutional limits on the federal leviathan." In the immortal words of Sir Arthur Conan Doyle: "No shit Sherlock." This is a disaster. How could this happen with a 5-4 majority of "conservative" Justices? Well, it's the freakin' Commerce Clause. All bets are off.
For example, George Will was scratching his head a few weeks ago over the Court's decision that the dormant Commerce Clause trumps the Twenty-first Amendment.
Last week's ruling divided the justices into unlikely cohorts, thereby providing a timely reminder that concepts such as ``judicial activism,'' ``strict construction'' and ``original intent'' have limited value in explaining or predicting the court's behavior.
Now George is scratching his head over the Court's decision in Raich that the Commerce Clause trumps just about evertything.
With the parties warring over the composition of the federal judiciary, and with a Supreme Court vacancy perhaps impending, Americans should use the court's end-of-term decisions as whetstones on which to sharpen their sense of the ambiguities in the categories -- "liberal," "conservative," "activist," "practitioner of judicial restraint" -- used when judges are discussed. Consider the case arising from the destruction, by agents of the Drug Enforcement Administration, of Diane Monson's homegrown marijuana plants, a case about which the court's two most conservative justices, Antonin Scalia and Clarence Thomas, disagreed.
What is it about the Commerce Clause that makes such otherwise brilliant people lose sight of the purpose of federalism? I don't know. But it sure is a profitable line for legal work.