Here’s an excellent piece by Charles Krauthammer on the Constitution and how it has been applied in light of last week’s medical marijuana ruling, and what the real debate should be when deciding who should be a federal judge.
The real question is never what judges decide, but how they decide it. The Scalia-Thomas argument was not about concern for cancer patients, the utility of medical marijuana or the latitude individuals should have regarding what they ingest.
It was about what the commerce clause permits and, even more abstractly, who decides what the commerce clause permits. To simplify only slightly, Scalia says: Supreme Court precedent. Thomas says: the founders, as best we can interpret their original intent.
…there is a third notion, championed most explicitly by Justice Stephen Breyer, that the Constitution is a living document and the role of the court is to interpret and reinterpret it continually in the light of new ideas and new norms.
