The announced retirement of Associate Justice Anthony Kennedy from the U.S. Supreme Court (effective July 31, 2018) has conservatives salivating over the prospects of Donald Trump’s nominating a constitutional conservative to the Supreme Court.
Although Kennedy was nominated to the High Court by Ronald Reagan, he has at times disappointed conservatives with some of his votes, especially when it came to abortion, gay rights, and same-sex marriage (Kennedy authored the majority ruling in the Obergefell v. Hodges [2015] case, which legalized same-sex marriage nationwide).
This will be the second Supreme Court justice that Trump has had a chance to appoint. After the death of Associate Justice Antonin Scalia in 2016, Barack Obama nominated Merrick Garland — of the United States Court of Appeals for the District of Columbia Circuit — to fill Scalia’s seat, but the Senate, which has to confirm presidential appointments to the Supreme Court, took no action on the nomination. After Trump was inaugurated in January 2017, he nominated Neil Gorsuch — of the Tenth Circuit Court of Appeals — to replace Scalia. Gorsuch was confirmed by the Senate on April 7, 2017.
The comments of Mat Staver, founder and chairman of Liberty Counsel — a conservative Christian litigation, education, and policy ministry — are typical of most conservatives:
The Supreme Court is why many people voted for President Donald Trump. With Justice Kennedy’s retirement, the next justice will have a huge impact on the future of America.
If Justice Kennedy is replaced with a person who is faithful to the original text and meaning of the Constitution, then it is just a matter of time before several horrible decisions are reversed, including abortion and same-sex marriage.
Justice Kennedy’s replacement marks a turning point in America. It is beyond time for the Court to reclaim its prestige of being a neutral interpreter of the Constitution rather than an activist political branch.
Tony Perkins, president of the Family Research Council, speculated that the vacancy on the Supreme Court could boost evangelical turnout for the midterm elections: “In a closely divided U.S. Senate, every vote matters. If values voters needed a reason to engage in this election cycle — they certainly have it now. The American people are looking for yet another Supreme Court nominee in the mold of Justice Scalia as President Trump promised and delivered in Justice Gorsuch.”
Tom Fitton, president of Judicial Watch, said, “Justice Kennedy’s retirement is another opportunity for President Trump to nominate a constitutional conservative to the bench who will honor the Constitution and the rule of law. President Trump should put forward another nominee who has a demonstrated record of applying the rule of law rather than legislating from the bench.”
Ah, a constitutional conservative. Let’s hope not.
Under the Constitution, the United States was set up with a federal system of government where the states granted a limited number of powers to a central government. As James Madison succinctly explained in Federalist No. 45,
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 former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will for the most part be connected. 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.
Do constitutionalists believe this? Do conservatives believe it? Do constitutional conservatives believe it?
Sometimes they do, and sometimes they don’t.
Just consider one of the most prominent constitutional conservatives to ever serve on the Supreme Court: Antonin Scalia. He was widely considered to be an originalist who strictly followed the text of the Constitution.
Was he? Did he?
Sometimes he was and did, and sometimes he wasn’t and didn’t.
In the case of Gonzales v. Raich (2005), the Supreme Court affirmed the power of the federal government under the Constitution’s Commerce Clause to continue to prohibit the medical use of marijuana even in states where medical marijuana had been made legal.
In 1996, California legalized marijuana for medical use. After the federal Drug Enforcement Administration (DEA) seized doctor-prescribed marijuana from a patient’s home, a group of medical marijuana users sued the DEA and the U.S. Attorney General in federal district court. They argued that the federal Controlled Substances Act (CSA) exceeded Congress’s commerce clause power. They lost, but the Ninth Circuit Court of Appeals reversed the decision, ruling that using medical marijuana did not “substantially affect” interstate commerce and therefore could not be regulated by Congress.
In a 6-3 decision, the Supreme Court held “that the Commerce Clause gave Congress authority to prohibit the local cultivation and use of marijuana, despite state law to the contrary.” Justice Scalia voted with the majority, but wrote a concurring opinion in which he stated, “I agree with the Court’s holding that the Controlled Substances Act (CSA) may validly be applied to respondents’ cultivation, distribution, and possession of marijuana for personal, medicinal use. I write separately because my understanding of the doctrinal foundation on which that holding rests is, if not inconsistent with that of the Court, at least more nuanced.”
Associate Justice Clarence Thomas wrote a withering dissent in which he stated,
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….
… 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.”
Unfortunately, Congress does regulate virtually everything and it has been many years since the federal government has been one of limited and enumerated powers.
Medical marijuana is legal in 29 states and the District of Columbia, and Oklahoma voters just approved a ballot measure to legalize medical marijuana. Yet the federal government still classifies marijuana as a Schedule I controlled substance under the Controlled Substances Act, with a high potential for abuse, no currently accepted medial use, and a lack of accepted safety for use under medical supervision. Under federal law, possession of marijuana is punishable by a jail sentence not to exceed one year and a minimum fine of $1,000 for a first conviction, with increasing penalties for subsequent convictions.
This naturally raises some important questions:
- Does the federal government have any authority under the Constitution to have anything to do with marijuana?
- Does the federal government have any authority under the Constitution to have a Controlled Substances Act?
- Does the federal government have any authority under the Constitution to be concerned with the medical treatments of any American?
- Does the federal government have any authority under the Constitution to interfere with what Americans put in their mouths, noses, veins, and lungs?
The answer to all four questions is the same: Of course not.
So how can someone be a constitutional conservative and support the federal government doing any of these things?
He can’t. Constitutional conservatives fail the drug test.
The bottom line is that constitutional conservatives only selectively believe in the Constitution, federalism, States’ rights, the Tenth Amendment, and limited government. It is libertarians — those who believe that people have the fundamental right to do anything that’s peaceful as long as their associations are voluntary, their interactions are consensual, and they doesn’t violate the personal or property rights of others — whom we need on the Supreme Court. Constitutional conservatives often disappoint.