Justice Steven’s Stifling Stupidity on Gonzales v. Raich

John Paul Stevens

John Paul Stevens

The legacy of retiring Supreme Court Justice John Paul Steven’s is forever tarnished by his befuddled vote on Gonzales v. Raich in 2005. This case, one of the most important in decades, was decisive in issues of individual liberty versus big government control and was key state’s rights case. Unfortunately, Steven voted with the authoritarian Scalia. The case was decided against medical marijuana consumer Angel Raich and for abhorrent Attorney Generals John Ashcroft and Roberto Gonzales.

To support the government’s case, Justice Stevens had arrive at a bizarrely paradoxical conclusion. The government claimed that the Commerce Clause regulating interstate commerce allowed it to restrict the non-commercial medical use of marijuana inside a state could somehow be defined as commerce between states. As Justice Clarence Thomas was quick to assert, this makes absolutely no sense and was unjustified. But those voting with Stevens and Scalia included Kennedy, and (shamefully) Souter, Ginsburg and Breyer.

Chief Justice Rehnquist, along with O’Conner and Thomas side with patient Angel Raich. Justice Sandra Day O’Conner said:

  • “Relying on Congress’ abstract assertions, the Court has endorsed making it a federal crime to grow small amounts of marijuana in one’s own home for one’s own medicinal use. This overreaching stifles an express choice by some States, concerned for the lives and liberties of their people, to regulate medical marijuana differently.”

Justice Clarence Thomas’ dissenting opinion spoke clearly of the intellectual dishonesty of the government’s case and the far ranging consequences. He wrote, (emphasis mine)

  • “Respondent’s local cultivation and consumption of marijuana is not “Commerce … among the several States.”
  • “Certainly no evidence from the founding suggests that “commerce” included the mere possession of a good or some personal activity that did not involve trade or exchange for value. In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana.”
  • If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption (not because it is interstate commerce, but because it is inextricably bound up with interstate commerce), then Congress’ Article I powers — as expanded by the Necessary and Proper Clause — have no meaningful limits. Whether Congress aims at the possession of drugs, guns, or any number of other items, it may continue to “appropria[te] state police powers under the guise of regulating commerce.”
  • “If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison’s assurance to the people of New York that the “powers delegated” to the Federal Government are “few and defined”, while those of the States are “numerous and indefinite.”

So, tragically, the majority with Stevens and Scalia, decided the federal government could block an American citizen’s right to grow and use a plant substance needed for survival! Few events in recent decades have so shifted power to big federal government while whittling away at state’s rights and denying autonomy and choices of Americans in making their own health care and life decisions.  This was “judicial activism” at its worst.

Even with this blow to the rights of states and restriction of liberty of American citizens, the cause for which Angel Raich fought is flourishing nicely. Angel continues to benefit from the medicinal herb, and medical marijuana is legal in over a dozen states. The tyranny supported by the Raich decision is being overcome by the assertiveness of the American people in their state’s votes, along with a President not pressing the issue.

John Paul Stevens made many good judgments in his long career, but his faulty thinking on Raich forever tarnishes his legacy and left Americans far less free.

Supreme Court of Argentina rules for personal liberty.

The Supreme Court of Argentina has freed the huge country’s citizens from possible imprisonment for possession of cannabis and other drugs. Ruling very rationally that the state has no business in the personal behaviors of its people that present no harm or danger to society. AP reports all seven judges agreed in “declaring the unconstitutionality of prison for private consumption.”

  • The court continued: “Each individual adult is responsible for making decisions freely about their desired lifestyle without state interference. Private conduct is allowed unless it constitutes a real danger or causes damage to property or the rights of others.”

Imagine that, adults — rather than the DEA — responsible for their own decisions.  Private conduct allowed! What quaint concepts, like Life, Liberty and the Pursuit of Happiness.

Luckily for liberty in Argentina the country is not saddled with the likes of US Supreme Court Justice Antonin Scalia. In terms of personal freedoms, Scalia, who like to call himself an “originalist,” seems to rely less on the Constitution, more on the Witchs Hammer. The Nixon-appointee has ruled, without exception, for the “drug war exemption to the Bill of Rights.” He invariably adjudicates for the power of the state and for reduction of civil liberties of the citizens. With Scalia on the bench, along with other authoritarians Roberts, Alito and Thomas, Americans can give up any hope for reasoned judgements like that coming from the Supreme Court of Argentina. Cry for me, Argentina. Our Supreme Court does not believe in freedom.

It is ironic that Argentina, know for its “dirty war” of abduction, torture, child stealing and executions in the 1970’s and 1980s should be providing leadership to the USA in 2009 in this key issue of personal liberty and incarceration. The AP report quotes an Argentine leader’s analysis of how the drug war harm maximization evil began:

  • Cabinet chief Anibal Fernandez declared that the ruling brings an end to “the repressive politics invented by the Nixon administration” in the United States, and later adopted by Argentina’s dictators, to imprison drug users as if they were major traffickers.

There was a time, before the war on drugs, when personal liberty was a key American value. Forty years, 20 million cannabis arrests and a quintupling of the prison population later, punishment and incarceration have replaced those American values.

  • The war on drugs is the USA’s own dirty war.

Sonia Sotomayor and the Drug War Exemption to the Bill of Rights

During the last 40 years of the drug war, America’s three branches of government have sought and attained what many have called the Drug War Exemption to the Bill of Rights. Seemingly, the executive, legislative and judicial branches fought over themselves to be tough in the War on Drugs, at the expense of the Constitution, especially the Bill Of Rights. The hysteria has, in just one generation, transformed “the land of the free” into the nation imprisoning the most people in cages.

  • To restore America’s constitutional values, the country desperately needs fresh thinking at the Supreme Court. Big government right wingers Antonin Scalia and Clarence Thomas have been joined by new neocons John Roberts and Sam Alito. Their decisions uniformly expand the role of the state, especially the executive, favor prosecution and incarceration while reducing the rights of the accused.

As a former drug war prosecutor, Sonia Sotomayor lacks this needed perspective. No ex-prosecutor should ever become a judge, much less supreme court justice. Prosecutors build their careers in good part on how much prison time is sentenced to those they prosecute. The war on drugs, with its “enhanced” sentencing and mandatory minimums, has been very, very good for the careers of prosecutors. Perhaps only urine tested have benefited more.

  • Proof of Sotomayor’s inability to tackle the festering mandatory minimum sentences congress rushed to impose during the height of the drug war is her support from Senator Jeff Sessions, R-Ala. This ex-US Attorney is tragically perched high in the Senate Judiciary Committee. Interviewed by PBS Frontline for Snitch, Sessions reveils himself to be a rabid drug war hardliner. Like most in his party of small government, he is chiefly concerned in increasing the scope of government through intensive prosecutions and mandatory minimums.

As reported by Sam Stein, in 1997 Jeff Sessions grilled Sotomayor on the occasion of her appointment as United States Court of Appeals for the 2nd Circuit. Of mandatory minimums, she testified to him, “I have no idea how the judges before me ever set a consistent standard by which to sentence individuals. The guidelines do provide that framework in a very helpful way.” Even so, Sessions voted against her appointment. Now he supports her Supreme court appointment. Be afraid, very afraid. Ex-prosecutor current Session’s satisfaction that ex-prosecutor Sotomayor will tow the line on mandatory minimums indicate that no voice of change will be heard on this crucial moral and practical issue.

  • Strict drug war sentencing and imprisonment are among many other evils of the war on drugs. The savaging of the Bill of Rights with drug war exemptions in the areas of personal privacy, search and seizure, cruel and unusual punishment and mass incarceration are huge failures of American ideals.

America needs its Constitution back. We need repeal of the Drug War Exemptions to the Bill of Rights. Ex-prosecutor Sonia Sotomayor at the Supreme Court would likely do nothing to help.

Souter unsuitable: He sided with Alberto Gonzales against an Angel.

Supreme Court justice David Souter proved he had no business serving on the high court with his ridiculous stance on Gonzales v. Raich in June, 2005. To accommodate the neo-con views of two of history’s worst attorney generals, John Ashcroft and Alberto Gonzales, and to federally prohibit Angel Raich from her life-saving medication, Souter bent logic to a ludicrous degree.

Constitutionally, the federal government should have no drug laws. Remember, an amendment to the constitution was required to prohibit alcohol in that doomed experiment. Other federal drug restrictions, such as laws prohibiting cannabis, should require similar changes to the constitution. But in the well known drug war exemptions to constitution, the federal government has assumed total control over cannabis and declared millions of its citizens to be federal criminals.

Voters in several states, including California, have chosen to provide medical marijuana exemptions to state drug laws. To allow federal control, even over the wishes of state voters, justices were asked by Alberto Gonzales’ government lawyers to determine that the intra-state free distribution of medical cannabis was somehow inter-state commerce, even though it did not involve other states, nor did it involve commerce.

Incredibly, 6 “justices,” including David Souter, went along with this tortured logic. Some, like Scalia, predictably always vote for extending government control over the individual. But even Clarence Thomas, who nearly always mirrors Scalia’s vote, was outraged by this fiction that free activity within a state comprised interstate commerce. He stated:

  • If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption (not because it is interstate commerce, but because it is inextricably bound up with interstate commerce), then Congress’ Article I powers — as expanded by the Necessary and Proper Clause — have no meaningful limits. Whether Congress aims at the possession of drugs, guns, or any number of other items, it may continue to “appropria[te] state police powers under the guise of regulating commerce.

Clarence Thomas went on with a couple of remarkable statements:

  • If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison’s assurance to the people of New York that the “powers delegated” to the Federal Government are “few and defined”, while those of the States are “numerous and indefinite.”
  • Respondent’s local cultivation and consumption of marijuana is not “Commerce … among the several States.”
  • Certainly no evidence from the founding suggests that “commerce” included the mere possession of a good or some personal activity that did not involve trade or exchange for value. In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana.

Clarence Thomas was joined in these rare moment of clarity by now absent Chief Justice William Rehnquist and Sandra Day O’Connor.Tragically, both these justices have now been replaced by Bush big government-conservatives John Roberts and Sam Alito. By all appearances, both take marching orders from Antonin Scalia.

To their shame, 6 justices voted in favor a giving federal agents the power to smash down the doors, raid the homes and destroy the lives of sick people growing a medication legal in their state. Joining Souter in this travesty of justice were Stevens, Kennedy, Ginsburg and Breyer. Ever the cheerleader for more obtrusive government, Antonin Scalia wrote a concurrence on his own.

Technically Gonzales v. Raich a big win for the forces of cannabis prohibition, but really has had little impact. Four years later, on the ground in California, medical cannabis is flourishing. One of the biggest backers of this new form of tax-paying intrastate commerce is California’s franchise tax board.

Alarmingly, one of the names circulating for Souter’s replacement is new Solicitor General Elena Kagan. Only weeks into her new job, Kagan (and Obama) disappointed civil libertarians with a new challenge to Michigan v. Jackson. Pathetically, the review of Michigan v. Jackson was instigated at the the behest of new George W. Bush neo-con Supreme Court appointee, Samuel Alito. I wonder which way he will vote? Someone so eager to extend the restriction of personal rights as Elena Kagan has shown so early in her job, would make for an nomination abomination for Supreme Court justice.

To rescue a bit of fairness and balance to the court, the president should appoint a justice nauseated by the injustice of the drug war, with its trampling of the constitution. Barack Obama, I believe former judge and prosecutor Jim Gray from Orange County is available.