Posted by Randy Barnett:
Ninth Circuit Reverses Supreme Court!
http://volokh.com/archives/archive_2005_06_05-2005_06_11.shtml#1118323579
My column on Gonzales v. Raich is now up here on National Review
Online. Here is how it begins:
The Ninth Circuit finally got its revenge on the Supreme Court
justices who seemed to delight in reversing it. In Gonzales v.
Raich, it gave the conservatives a choice: Uphold the Ninth
Circuit's ruling favoring individuals engaged in the wholly
intrastate non-economic activity of growing and consuming cannabis
for medical purposes as recommended by a doctor and permitted by
state law, or retreat from the landmark Commerce Clause decisions
of U.S. v. Lopez (1995) and U.S. v. Morrison (2000). Either way the
Ninth Circuit wins. But with Justices Kennedy and Scalia on the
liberal side of the Court, the Ninth Circuit won big. So did Judge
Stephen Reinhardt, who first implemented this strategy in the
child-porn case of U.S. v. McCoy.
Of course, my clients and I were betting the other way. Either all
five federalist justices would hold to their principles, or a few
of the more liberal justices might decide to follow the
"precedents" of Lopez and Morrison and make an exception to their
principled stance in favor of federal power out of concern for the
tens of thousands of suffering patents who acted through the
democratic processes of their states to enact compassionate use
acts. It was not to be.
I credit the four Lopez and Morrison dissenters with putting their
vision of the Constitution above precedent. I agree that
unconstitutional precedent should not be followed (see my take on
precedent [1]here). I credit even more the three dissenters. . . .
Raich does nicely illustrate why originalists need not be too bothered
with the charge that they would reverse "precedent." The four
dissenters in Lopez continued to dissent five years later in Morrison
and maintained their opposition to Lopez even ten years later in
Raich. During oral argument I confronted the same arguments made by
Justices Souter and Breyer in their Lopez and Morrison dissents long
after they had been rejected the Court.
What about the "precedent" of Wickard v. Filburn so stressed by the
Court in Raich? I won't rehash all the ways that, as we argued,
Wickard was distinguishable. For on thing, even the New Deal Congress
did not attempt to reach backyard gardens; the Agricultural Adjustment
Act even exempted small commercial(!) farms. Nor does the rationale
that was used to justify reaching Roscoe Filburn's wheat apply to
Angel or Diane. Justice O'Connor explains all this in her dissent. The
only justices who purported to be compelled to follow the precedent of
Wickard were those who, for whatever reason, wanted to reach the
result they did. Following Wickard was simply a means to that end. We
asked the Court to reverse Wickard if it thought it was a barrier to
ruling for us (this was included especially for Justice Thomas who
won't reconsider precedent unless specifically asked) but we honestly
did not think that reversing Wickard was at all necessary.
To insist that originalists must follow precedent when no one else
does (when they don't want to) is less than compelling. Especially
when there is good reason to conclude that no precedent should stand
in the way of correcting a mistaken interpretation of the
Constitution. Like many others, I think Wickard was wrongly decided.
The fact that it is a precedent should provide no barrier to its
reversal. But, as I said in my oral argument, Gonzales v. Raich now
replaces Wickard v. Filburn "as the most far reaching example of
Commerce Clause authority over intrastate activity" ever decided by
the Supreme Court. For this reason, it will be studied by generations
of Con Law students until the day it is finally reversed in favor of
the correct reading of the Commerce Clause and Necessary and Proper
Clause.
References
1. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=714982
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