You reap what you sow

I'm not a big fan of lawyers. Of course they serve a legitimate purpose, but they also fit Richard Dawkin's definition of a meme - that is that they create a world in which their propagation is favored. Put simply, lawyers create situations that can only be solved by other lawyers.

A lawyer can take a part of the constitution that has a very plain meaning, and not only twist it around so it says something different, but make it written in a language that only other lawyers can interpret. Thus the 2nd amendment does not protect the right to bear arms, the 5th amendment allows for private property to be taken for something other than public use, and the 10th amendment doesn't limit the federal government to its enumerated powers.

One reason the federal government's power is virtually unlimited is the supreme court's interpretation of the commerce clause. "Congress shall have the power... To regulate commerce with foreign nations, and among the several states, and with the Indian tribes." What exactly qualifies as interstate commerce? Running a hotel in Atlanta? Of course. Firing unionized employees at a Pennsylvania steel corporation. Sure! Growing wheat on your farm, to feed your own family? Ummm, this is getting weird, but ok.

A short time ago the 9th circuit tossed a nice one back to the supreme court - does the federal government have a right to criminalize growing marijuana for your own medical use? (Some people speculated this idealogically difficult case was a big fuck you to the supreme court, which often overturned the 9th circuit.) The conservatives had a choice - continue to limit the scope of federal power, and in so doing allow for some drugs to be legalized. The liberals faced one of their own - allow terminally ill patients access to a drug that eases their pain, and in so doing threaten environmental law, labor law, and a host of other laws near and dear to their hearts. Score another one for unlimited federal power.

Now the supreme court has handed down a decision validating the federal law outlawing partial birth abortion. Plaintiffs sought (and failed) to overturn the law based on abortion rights, not on the commerce clause. However, Justice Thomas hinted that from a federalist viewpoint this law was an overbroad application of commerce clause power. If the court had, at some point in the last 65 years, limited the power of the federal government claimed through the commerce clause, states could be free to experiment with medical marijuana, partial birth abortion, and many other things as they saw fit.

This is also further demonstration that, contrary to many people's (uninformed) opinion, Justice Thomas has emerged as the most principled member of the court. He wrote a scathing dissent in Kelo v New London, allowing an eminent domain taking for private use. ("I do not believe that this Court can eliminate liberties expressly enumerated in the Constitution and therefore join her dissenting opinion. Regrettably, however, the Court’s error runs deeper than this. Today’s decision is simply the latest in a string of our cases construing the Public Use Clause to be a virtual nullity, without the slightest nod to its original meaning.") I doubt Thomas is a pot-head, and we know he's not in favor of abortion, but he voted to uphold California's medical marijuana law ("Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything–and the Federal Government is no longer one of limited and enumerated powers.") and he indicated he would overturn the partial birth abortion ban if anyone had bothered to make the commerce clause argument.

I think we could stand to have a scientist or two on the supreme court, but lacking that, we could use more lawyers like Clarence Thomas.

(Thanks to volokh.com for thoughts on the PBA case, including the title of this post.)