Kennedy's Vast Domain- The Supreme Court's reverse Robin Hoods

WSJ.com - Kennedy's Vast Domain

The Supreme Court's "liberal" wing has a reputation in some circles as a guardian of the little guy and a protector of civil liberties. That deserves reconsideration in light of yesterday's decision in Kelo v. City of New London. The Court's four liberals (Justices Stevens, Breyer, Souter and Ginsburg) combined with the protean Anthony Kennedy to rule that local governments have more or less unlimited authority to seize homes and businesses…

In his clarifying dissent, Justice Clarence Thomas exposes this logic for the government land grab that it is. He accuses the majority of replacing the Fifth Amendment's "Public Use Clause" with a very different "public purpose" test: "This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a 'public use.'"

And in a separate dissent, Justice Sandra Day O'Connor suggested that the use of this power in a reverse Robin Hood fashion -- take from the poor, give to the rich -- would become the norm, not the exception: "Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms"…

So, in just two weeks, the Supreme Court has rendered two major decisions on the limits of government. In Raich v. Gonzales the Court said there are effectively no limits on what the federal government can do using the Commerce Clause as a justification. In Kelo, it's now ruled that there are effectively no limits on the predations of local governments against private property.
These kinds of judicial encroachments on liberty are precisely why Supreme Court nominations have become such high-stakes battles. If President Bush is truly the "strict constructionist" he professes to be, he will take note of the need to check this disturbing trend should he be presented with a High Court vacancy.

The “liberal” judges on the Supreme Court have done it again. Instead of protecting individual rights, they increased the power of government leading to more tyranny. These Justices suggest that individuals are unimportant and only exist to serve the State. They justify it with rhetoric about the “common good” and the “good of society,” but who makes up society if not individuals? How can any good come from the theft of personal property from individuals and its redistribution to politically connected corporations?

Despite the rhetoric, big government never exists to protect the poor or weak members of society; it only exists to further the interests of the rich and politically well connected. Eminent Domain is one more tool for the rich to become richer while preventing poorer people from improving their economic position.

Time to Take Action

Drug WarRant: Hinchey-Rohrabacher Amendment coming to the floor on Tuesday!

This comes via Peter Guither at Drug War Rant.com for those of us upset over the Gonzales v. Raich ruling. On Tuesday, June 14, 2005, the Hinchey-Rohrabacher Amendment hits the House. The amendment prevents the federal government from spending money investigating medical marijuana patients in states with medical marijuana laws. Click on the following links to send emails to your US Representatives to urge them to support this bill. Each link only takes about 30 seconds to complete, so pass them on to your friends.

· DRCNet instant letter to Congress
· Drug Policy Alliance instant letter to Congress
· Marijuana Policy Project instant letter to Congress
· NORML instant letter to Congress

As Peter Guither points out, this is the perfect time to take advantage of the publicity generated by the Supreme Court ruling. However, do not just rely on email, call your Congressional office on Monday.

As a quick reminder of this issue’s importance, I am reposting the link to Rogier van Bakel’s account of Peter McWilliam’s sad story.

Treating Doctors as Drug Dealers

Treating Doctors as Drug Dealers; The DEA's War on Prescription Painkillers, by Ronald T. Libby

This article by Ronald T. Libby comes via the Cato Institute, and describes a topic related to Gonzales v. Raich. It further illustrates the cruelty of our government and the lengths it will go to justify the War on Drugs. In the United States today, the government is pointing a gun at the back of the head of every doctor treating patients for pain. If doctors prescribe pain medicines at levels the DEA deems inappropriate, the DEA will prosecute them and the doctors could face significant jail time. Who is more likely to know what pain medicines are appropriate, doctors treating patients face to face, or the bureaucrats running the DEA?

To understand the implications of the DEA’s policies, consider why most patients breakdown and go to the doctor. Very few people like going to the doctor, so they only go when they are in pain and/or discomfort and seeking relief. However, the DEA scares doctors from providing relief. The DEA only cares about justifying its existence and budget, so it allows patients to suffer.

I am posting the article's Executive Summary and Conclusion.

Executive Summary
The medical field of treating chronic pain is still in its infancy. It was only in the late 1980s that leading physicians trained in treating the chronic pain of terminally ill cancer patients began to recommend that the "opioid therapy"(treatment involving narcotics related to opium) used on their patients also be used for patients suffering from non terminal conditions. The new therapies proved successful, and prescription pain medications saw a huge leap in sales throughout the 1990s. But opioid therapy has always been controversial. The habit-forming nature of some prescription pain medications made many physicians, medical boards, and law enforcement officials wary of their use in treating acute pain in non terminal patients. Consequently, many physicians and pain specialists have shied away from opioid treatment, causing millions of Americans to suffer from chronic pain even as therapies were available to treat it.

The problem was exacerbated when the media began reporting that the popular narcotic pain medication OxyContin was finding its way to the black market for illicit drugs, resulting in an outbreak of related crime, overdoses, and deaths. Though many of those reports proved to be exaggerated or unfounded, critics in Congress and the Department of Justice scolded the U.S.Drug Enforcement Administration for the alleged pervasiveness of OxyContin abuse.

The DEA responded with an aggressive plan to eradicate the illegal use or "diversion" of OxyContin. The plan uses familiar law enforcement methods from the War on Drugs, such as aggressive undercover investigation, asset forfeiture, and informers. The DEA's painkiller campaign has cast a chill over the doctor-patient candor necessary for successful treatment. It has resulted in the pursuit and prosecution of well-meaning doctors. It has also scared many doctors out of pain management altogether, and likely persuaded others not to enter it, thus worsening the already widespread problem of underrated untreated chronic pain.

Conclusion
The government is waging an aggressive, intemperate, unjustified war on pain doctors. This war bears a remarkable resemblance to the campaign against doctors under the Harrison Act of 1914, which made it a criminal felony for physicians to prescribe narcotics to addicts. In the early 20th century, the prosecutions of doctors were highly publicized by the media and turned public opinion against physicians, painting them not as healers of the sick but as suppliers of narcotics to degenerate addicts and threats to the health and security of the nation.

Since 2001, the federal government has similarly accelerated its pursuit of physicians it says are contributing to the alleged rising tide of prescription drug addiction. By demonizing physicians as drug dealers and exaggerating the health risks of pain management, the federal government has made physicians scapegoats for the failed drug war. In that they are generally legitimate, well-meaning professionals who keep accurate records, pain physicians also present a better target than underground, blackmarket drug dealers for a DEA that has been subject to increasing criticism from Congress and the Department of Justice for its inability to measurably reduce the domestic drug supply. Even worse, the DEA’s renewed war on pain doctors has frightened many physicians out of pain management altogether, exacerbating an already serious health crisis—the widespread undertreatment of intractable pain. Despite the DEA’s insistence that it’s not pursuing “good” doctors, it isn’t hard to see how rhetoric from law enforcement officials and prosecutors would make doctors think otherwise. Hurwitz’s prosecutor, for example, promised to root out bad doctors “like the Taliban.”159 Another assistant U.S. attorney said, upon the sentencing of one doctor to eight years in prison for having worked for 57 days at a pain clinic: “I believe and I hope that this case has sent a clear message to the medical community that they need to be sure the controlled substances they prescribe are medically necessary. If doctors have a doubt about whether they could get in trouble, this case should answer that”—a statement that implores doctors to err on the side of undertreatment.160

It isn’t hard to see how all of this would make it more difficult for pain patients to find treatment. “You worry every day that the medicine won’t be available for much longer,” one patient told the Village Voice, “or your doctor won’t be there tomorrow because he’s been arrested by the DEA.”161 One doctor flatly told the Wall Street Journal, “I will not treat pain patients ever again.”162 Still another told Time magazine, “I tend to underprescribe instead of using stronger drugs that could really help my patients. I can’t afford to lose my ability to support my family.” The Voice also reports that many medical schools now “advise students not to choose pain management as a career because the field is too fraught with potential legal dangers.”163

The most obvious (though least likely) course of action to address these problems would be for Congress to end the costly, regrettable War on Drugs. Barring that, the best way for law enforcement officials to battle the problem of diversion would be to combat the theft of the drugs from warehouses, manufacturing facilities, and en route to pharmacies. More importantly, the DEA, DOJ, Congress, and state and local authorities should end the senseless persecution of doctors and allow them to pursue whatever treatment options they feel are in the best interests of their patients, free from the watchful eye of law enforcement.

A Few More Thoughts about Gonzales v. Raich

What Were Those Justices Smoking?

Everyone please give a round of applause for the three dissenting judges, Chief Justice William Rehnquist, Justice Clarence Thomas, and Justice Sandra Day O’Conner. As James Leroy Wilson points out at Independent Country, Rehnquist and Thomas are conservative judges that the left is currently vilifying. However, Republican hypocrisy did not influence them, instead they remained true to federalist ideals and ruled in favor of reason and individual rights.

As for the other six justices, their judgment remains consistent with other Supreme Court ruling over the past century that have revoked state and individual rights in favor of increasing federal power. Because of their ruling, a heartless and tyrannical government will deny 100s to 1,000s of severely ill patients the medicine that can relieve their pain. For this, the six justices deserve our scorn.

It is interesting to note that four of the six justices in the majority are liberal judges. Conventional wisdom says that these judges are preventing the overturn of Roe v. Wade. This is fitting because the Gonzales v. Raich ruling is the other edge of the Roe v. Wade sword. Those in favor of Roe v. Wade argue that it is humane and compassionate because it protects women from seeking abortions in dirty back allies with coat hangers. However, the logic that protects women by creating de facto national legalized abortion gave more power to the Bush administration to persecute sick people for the crime of seeking symptom relief. This logic says that what happens democratically on the state level is not trustworthy or valid. Therefore, despite Constitutional bounds, power remains at the federal level to run everyone’s lives; whether they like it or not.

At certain moments in American history, states stood up to the incursion of federal authority. I hope this turns out to be one of those moments. My dream is that the governor of a medical marijuana state along with the state’s legislature and citizens declare their intention to protect medical marijuana patients from federal prosecution. I am NOT asking for a violent uprising, but a political gesture that brings more attention to the tyranny at hand. Maybe, the next time the feds raid the home of a medical marijuana patient in California, they will find Governor Arnold Schwarzenegger standing there in a show of defiance.

Finally, follow this link to read the sad story of Peter McWilliams, one of the pioneers of the crusade for medical marijuana.

The Supreme Court's opinion on medical marijuana in Gonzales v. Raich

FindLaw for Legal Professionals - Case Law, Federal and State Resources, Forms, and Code

Notable quotes from the Supreme Court decision handed down today regarding Gonzales v. Raich, in which a 6-3 decision held that, “Congress' Commerce Clause authority includes the power to prohibit the local cultivation and use of marijuana in compliance with California law.” In other words, the Supreme Court ruled that the Federal Government has the right to overturn state laws allowing the medicinal use of marijuana. My commentary is interspersed with the quotes.

Justice Stevens delivered the opinion of the Court...

But perhaps even more important than these legal avenues is the democratic process, in which the voices of voters allied with these respondents may one day be heard in the halls of Congress.

This already happened on the state level! The voters of California and nine other states decided democratically to permit the use of marijuana for medical purposes. Once again, you are impeding the democratic process.

Justice Scalia, concurring in the judgment...

As the Court explains, marijuana that is grown at home and possessed for personal use is never more than an instant from the interstate market--and this is so whether or not the possession is for medicinal use or lawful use under the laws of a particular State.3 See ante, at 23-30

Every man, woman and child, and everything they own in the United States is an instant from the interstate market! Therefore, everything we have and everything we do is subject to the unlimited regulation of the federal government. We are no longer free individuals, but the property of the federal government.

Justice O'Connor, with whom The Chief Justice and Justice Thomas join as to all but Part III, dissenting.

We enforce the "outer limits" of Congress' Commerce Clause authority not for their own sake, but to protect historic spheres of state sovereignty from excessive federal encroachment and thereby to maintain the distribution of power fundamental to our federalist system of government. United States v. Lopez, 514 U. S. 549, 557 (1995); NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 37 (1937). One of federalism's chief virtues, of course, is that it promotes innovation by allowing for the possibility that "a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." New State Ice Co. v. Liebmann, 285 U. S. 262, 311 (1932) (Brandeis, J., dissenting)…

We would do well to recall how James Madison, the father of the Constitution, described our system of joint sovereignty to the people of New York: "The powers delegated by the proposed constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite... . The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State." The Federalist No. 45, pp. 292-293 (C. Rossiter ed. 1961).

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. If I were a California citizen, I would not have voted for the medical marijuana ballot initiative; if I were a California legislator I would not have supported the Compassionate Use Act. But whatever the wisdom of California's experiment with medical marijuana, the federalism principles that have driven our Commerce Clause cases require that room for experiment be protected in this case. For these reasons I dissent.

BRAVO! Justice O’Conner presents a principled argument for federalism as protected by the US Constitution. I am particularly impressed that she personally does not agree with the medical use of marijuana, but her personal opinion does not matter. The only thing that matters, is upholding our federalist system.

Justice Thomas, dissenting.

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...

Justice Thomas hits the nail on the head. Potentially, this decision could have far reaching and devastating consequences for our system of government and our way of life.

Faith, Commerce and Freedom

Daniel T. Griswold on Christian faith and libertarian values,

SHARED BELIEFS...
Let’s examine a few shared beliefs. Both libertarians and Christians believe

• In the dignity and the worth of the individual. Unlike many socialists, we don’t believe that people are faceless cogs in some vast machine.
• In the importance of individual conscience and of standing up to authority when your conscience calls you to do so.
• That freedom must be tempered by personal responsibility.
• That there are objective standards of right and wrong, and that principles transcend the interests of the state and prevailing attitudes of the moment.
• That the state is not the highest authority of our activities—we are governed by laws rather than men.
• That men are fallible and can’t be trusted with unlimited power.

SHARED VALUES
As a Christian, I’ve read the Bible through several times, and I don’t think there’s anything in there that’s a compelling argument for big government or the welfare state. The Bible is not primarily a political document, but it does offer general principles of social behavior that are compatible, and indeed reinforce, the libertarian vision of a free society. Here are a few of those values:

• Property rights: The Bible says, “Thou shall not steal.” Libertarians remind people that it’s wrong to steal, whether the thief is an individual or a group of individuals under
“majority rule.”
• Civil disobedience: When challenged about their faith, Peter and the Apostles replied, “We must obey God rather than men.”
• Welfare reform: The Apostle Paul said, “For even when we were with you, we gave you this rule: if a man will not work, he shall not eat.”
• Taking care of family: In 1st Timothy, Paul writes that if anyone does not provide for his relatives, and especially for his immediate family, he has denied the faith and is worse than an unbeliever. This is a very basic libertarian principle. Your responsibility to your family comes first. Each individual is responsible for that. Libertarians don’t believe it takes a village to raise a child.
• Voluntary support for charity: The Bible talks about a 10 percent tithe to support the temple, which performed many of the functions performed by today’s welfare state. Later, Paul says, “each man should give what he has decided in his heart to give, not reluctantly or under compulsion, for God loves a cheerful giver.”
• Peace and property rights: The Old Testament prophet Micah had a vision of men beating their swords into plowshares. Micah also says, “Every man will sit under his own vine and under his own fig tree, and no one will make them afraid, for the Lord Almighty has spoken.” I think that’s a beautiful picture of a free society with property rights.

Reason: Buckle Boondoggle: "Click It Or Ticket" wastes time, diverts resources, helps nobody

Reason: Buckle Boondoggle: "Click It Or Ticket" wastes time, diverts resources, helps nobody

Ted Balaker writes,
A cop stops you at a checkpoint. The officer peers inside. What's he looking for? A kidnapper? A terrorist? This week, chances are good the officer is looking for a less frightening perpetrator—the unbuckled motorist…

Click It supporters say tougher seat belt laws will help make highways even safer, but the nationwide trend toward safer streets has continued with or without them. Take New Hampshire, the only state without an adult seat belt law. It might seem like the "Live free or die" state has chosen death, but drivers there actually enjoy the nation's fourth safest roads. Neither of the two safest states have primary enforcement, and of the top 20 safest states, 10 have primary enforcement and 10 do not…

Most importantly, running down seatbelt scofflaws keeps officers away from more important public safety duties…

The problem isn't the 20 percent of Americans who refuse to buckle up; it's a system that forces everyone to subsidize everyone else. The solution is making everyone pay his own way. If we don't figure out how to fix this particular tragedy of the commons, we'll likely continue down the Nanny State path of more checkpoints, stiffer fines, and more stringent laws…

Everyday, I hear a “Click It or Ticket” public service announcement on the radio. It features a man with a very authoritative voice that starts out saying, “Everyone knows seat belts save lives, blah, blah, blah.” Then he describes how wearing seatbelts will save us time, money, and hassle, because police officers WILL write us tickets for not wearing seatbelts. He concludes by telling us to “consider this a friendly warning.” Let us be clear, this is NOT a warning, it is a threat. Our government does not trust our judgment, so it treats us like out of control children. It is one of many threats our government uses everyday to control our behavior, because threats and coercion are the greatest expression of the State.

After the commercial ends and I finish swearing at my radio, I cannot help wondering why we tolerate this. If my parents threatened me every time I spoke to them, I would stop talking to them. If my boss persistently threatened me at work, I would find another job. If anyone I knew treated me the way our government routinely treats us, I would break off all relations with that person. I do not think I am alone. Yet, we sit back and take it as government representatives, who we elect and pay, continue to find new reasons to threaten us. Why do we hold government to a different moral standard than we hold individuals?