Crime & Federalism

First of all, I think this case is Clarence Thomas’ finest moment. Under immense pressure within conservative intellectual circles to find some way to rationalize an illegitimate, unconstitutional, illegal, unjust, ruinous drug war, Justice Thomas sticks to his principles and writes a profound, even moving dissent. “In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana.” How true. And note his reference to the fears of the Anti-Federalists. Justice Thomas is the most frequent citer of the writings of the Anti-Federalists that the Court has ever seen. As I pointed out some years ago, he is right to do so, because we construe documents against the drafters, and the Constitution ought to be interpreted to assuage the Anti-Federalists’ concerns whenever possible. And the greatest Anti-Federalist writer, Brutus, was most concerned that the federal government would

introduce itself into every comer of the city, and country — It will wait upon the ladies at their toilett, and will not leave them in any of their domestic concerns; it will accompany them to the ball, the play, and the assembly; it will go with them when they visit, and will, on all occasions, sit beside them in their carriages, nor will it desert them even at church; it will enter the house of every gentleman, watch over his cellar, wait upon his cook in the kitchen, follow the servants into the parlour, preside over the table, and note down all he eats or drinks; it will attend him to his bed-chamber, and watch him while he sleeps; it will take cognizance of the professional man in his office, or his study; it will watch the merchant in the counting-house, or in his store; it will follow the mechanic to his shop, and in his work, and will haunt him in his family, and in his bed; it will be a constant companion of the industrious farmer in all his labour, it will be with him in the house, and in the field, observe the toil of his hands, and the sweat of his brow; it will penetrate into the most obscure cottage; and finally, it will light upon the head of every person in the United States. To all these different classes of people, and in all these circumstances, in which it will attend them, the language in which it will address them, will be GIVE! GIVE!

Modern commerce clause cases have made Brutus right. As Justice Thomas puts it, “One searches the Court’s opinion in vain for any hint of what aspect of American life is reserved to the States.”

Second, I think Thomas makes an excellent point about the way the Court treats an as-applied challenge as opposed to a facial challenge. The majority essentially decides that, at least in commerce clause cases, if the statute is facially constitutional, it must always be constitutional in every application, no matter how minimal the activity in question. It appears that, if Lopez and Morrison mean anything anymore, these three cases can be reconciled only on the notion that laws can only be facially unconstitutional under the commerce clause, but never unconstitutional as applied. Few notions could be more dangerous to the Court’s role in policing the boundaries that the Constitution (supposedly) places on Congress’ authority.

Third, Thomas nowhere discusses Wickard. He cites it only once, when discussing facial versus as-applied. He’s discussed Wickard before, of course, in his great Lopez opinion, but at least a footnote saying he thinks Wickard should be overruled, would be helpful.

Finally, I think it’s great to see some serious discussion over the Necessary and Proper Clause. As Randy Barnett has pointed out, this appears to be the only clause of the constitution over which there has really only been a single case, McCulloch, and which every subsequent Court has refused to reconsider. And, on top of that, although it can’t be denied that McCulloch places limits on the Necessary and Proper Clause, those have been ignored, so that the case today stands for the proposition that the Clause is a blank check on power. Justice Thomas, however, shows that he is not willing to shut his eyes any time Congress asserts power. (“Congress declared that state policy would disrupt federal law enforcement..... But...Congress presented no evidence in support of its conclusions, which are not so much findings of fact as assertions of power.... Congress cannot define the scope of its own power merely by declaring the necessity of its enactments.”)

Justice Thomas has written some bad decisions in the past. But in this case, he has shown a truly noble dedication to the Constitution’s actual meaning, actual limits, actual structure, actual words, and proven why he is one of the most thorough, interesting, and profound Justices ever to sit on the Supreme Court.