Newspaper column: Nevada should challenge constitutionality of federal pot law

A week ago the Trump administration rescinded a series of Obama administration memos instructing federal prosecutors to back off enforcing federal marijuana laws in states that have legalized it, sending legal pot businesses into a dither, including those in Nevada.

Attorney General Jeff Sessions said he would leave it up to federal prosecutors to decide what to do when state law clashes with federal drug law. Justice Department officials said the previous administration’s stance allowed states to flout federal law.

Nevada Attorney General Adam Laxalt sent out an email saying his office is reviewing the change in the Justice Department’s stance on federal pot law enforcement and evaluating the ramifications for the state

“Although I opposed the Question 2 ballot initiative proposing the legalization of recreational marijuana in Nevada, I also pledged to defend the measure were it approved by the voters,” Laxalt stated. “Since Questions 2’s enactment, my office has vigorously defended it against two related lawsuits that threatened to slow or even halt the implementation of the law, and has further assisted with the formulation and adoption of regulations to allow dispensaries to commence sales of recreational marijuana within just six months of the law’s enactment. My office has expeditiously facilitated the implementation of the law in the face of considerable uncertainty about the status of federal enforcement activity.”

We suggest that the state’s attorney do what attorneys do: Sue.

The states aren’t flouting federal law, Congress is flouting the Constitution. If it took a constitutional amendment to allow Congress to make alcohol illegal during Prohibition, the same should be true for marijuana.

The 10th Amendment clearly states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Nowhere does the Constitution grant that power to Congress.

In fact, the divided Supreme Court decision upholding Congress’ power to ban marijuana is an absurdity constructed from a fatuity and makes a mockery of the principles of federalism.

In the case of Gonzales v. Raich, the high court found that Congress had the power under the Commerce Clause to prohibit a person from growing marijuana for her own consumption because it could affect interstate commerce. The court cited as precedent the New Deal-era case of Wickard v. Filburn, which said a farmer who grew wheat for his own consumption affected interstate commerce because, if he had not done so, he would’ve had to purchase wheat, thus affecting the market and price for wheat.

Thus the court essentially erased any distinction between interstate and intrastate commerce or even no commerce at all. Whatever the imagination can conjure.

 In his dissent in the pot case, Justice Clarence Thomas fumed, “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.”

Thomas added, “This makes a mockery of (James) Madison’s assurance (in Federalist Paper No. 45) 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.’”

Justice Sandra Day O’Connor also raised the issue of federalism, writing in dissent in Raich, “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.”

With the court now more originalist in its composition, the arguments of Thomas and O’Connor might hold sway in a constitutional challenge of the federal marijuana law, should Laxalt and the attorneys general of the states that have legalized pot press the matter.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

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Editorial: Forfeiture of property should be tied to a conviction

A couple of weeks ago we editorially bemoaned the fact that no one had introduced a bill in the state Legislature to restrict the practice of law enforcement agencies seizing private property — homes, cars, cash and such — under the presumption it is the product of criminal activity, but without ever having to actually go through the due process of convicting someone of a crime — a process called civil asset forfeiture.

That same week state Sen. Don Gustavson of Sparks filed Senate Bill 358 that would require proof of a criminal conviction, a plea agreement or an agreement by the parties concerned before property could be forfeited.

Humboldt deputy seized cash

The bill is almost identical to a bill Gustavson and James Settelmeyer of Minden sponsored during the 2015 legislative session. By the time that bill came out the legislative sausage grinder it merely required police agencies to report their confiscations to the state. As the law currently reads, property may be confiscated and kept or sold without the property’s owner ever being convicted or even charged with a criminal offense.

Though the Fifth Amendment provides: “No person shall be … deprived of life, liberty, or property, without due process of law …” police agencies in cooperation with federal law enforcement have for years coerced people into surrendering assets that become the property of the agency — a perverse incentive indeed.

Gustavson’s bill “provides that property is subject to forfeiture only if the underlying crime provides  for such forfeiture, and there is: (1) proof of a criminal conviction; (2) a plea agreement; or (3) an agreement by the parties.” It also “requires the State to establish that seized property is forfeitable by clear and convincing evidence.”

Gustavson testified before the Senate Judiciary Committee this past week, “Under current civil forfeiture laws, law enforcement can seize your cash or other property, sell and then use most of the proceeds however they see fit, even though you are never arrested or even charged with a crime. Passage of Senate Bill 358 does not limit law enforcement’s ability to combat drug cartels and other criminal activity. The intent of this legislation is to protect the innocent individual’s liberty and property right and to keep law abiding citizens from becoming entangled in the process that results in their rights being trampled. An innocent tourist driving back to Utah after winning a $1,000 jackpot at a local casino can have his money confiscated though he or she has not been accused of any crime.”

Lee McGrath, legislative counsel for the Institute for Justice, which has advocated civil asset forfeiture law reform for years, also testified. He said law enforcement has the power to take the fruits of criminal activity but that it should be done via criminal forfeiture rather than civil forfeiture.

“The appropriate process that is due is criminal forfeiture,” McGrath said. “It makes sense to charge, arrest and convict the suspect of a crime. If convicted in the same courtroom, the same judge can turn to the question, and it should be an easy question, of whether the cash, whether the vehicle are the proceeds and the instruments of a crime.”

The attorney general’s office, various law enforcement officials and district attorneys testified against the bill, saying the current system is not abused, though others testified to the contrary.

There is a case pending in the courts in which Texas police seized $200,000 in cash, claiming it was the profits of illegal drug trade, though the owners said it was from a the sale of a house. The bill of sale was with the cash. No one was ever convicted of any crime and the police still have the money.

Justice Clarence Thomas wrote a six-page commentary on the Texas case sighting the evils of civil asset forfeiture, “These forfeiture operations frequently target the poor and other groups least able to defend their interests in forfeiture proceedings. … Perversely, these same groups are often the most burdened by forfeiture. They are more likely to use cash than alternative forms of payment, like credit cards, which may be less susceptible to forfeiture. And they are more likely to suffer in their daily lives while they litigate for the return of a critical item of property, such as a car or a home.”

Nevada has its own record of suspect civil asset forfeiture cases. Over a two-year period Humboldt County deputies seized $180,000 in cash from motorists.

Some states have passed laws similar to the one being advocated by Gustavson to curb the extortionate practice by police by requiring an actual criminal conviction before assets may be taken. This bill is needed to protect citizens and assure due process.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

Editorial: Time to stop police from extorting cash and property

The appalling Constitution-bending practice by which law enforcement agencies have for years seized private property under the presumption it is the product of criminal activity without ever having to go the bothersome effort of actually, you know, obtaining a criminal conviction continues apace.

The latest ignoble example of what is called civil asset forfeiture comes to us from Texas in the case of Leonard v. Texas.

The U.S. Supreme Court declined to hear the case because the attorneys for Lisa Olivia Leonard, whose $200,000 in cash was confiscated when her son was detained during a traffic stop, were arguing the seizure violated the Due Process Clause of the Constitution, but they had failed to make that argument before the lower courts. So, it was not yet ripe for the high court.

The Fifth Amendment provides: “No person shall be … deprived of life, liberty, or property, without due process of law …”

Humboldt County deputy with K-9 and $50,000 in seized cash.

In April of 2013, a police officer stopped James Leonard for a traffic infraction, and, during a search a safe was found in the trunk. Leonard told police the safe belonged to his mother. After a search warrant was obtained, police found the safe contained $201,100 and a bill of sale for a home in Pennsylvania.

Texas filed for civil forfeiture of the money, claiming it was the profits from illegal drug sales, though Lisa Leonard said the money was from the sale of a house. A trial court and an appellate court did not believe that, even though no one was convicted of a crime.

Though he agreed the court should not yet hear the case, Justice Clarence Thomas wrote a six-page commentary on the evils of civil asset forfeiture.

Justice Thomas said of civil asset forfeitures, “This system — where police can seize property with limited judicial oversight and retain it for their own use — has led to egregious and well-chronicled abuses. According to one nationally publicized report, for example, police in the town of Tenaha, Texas, regularly seized the property of out-of-town drivers passing through and collaborated with the district attorney to coerce them into signing waivers of their property rights. …In one case, local officials threatened to file unsubstantiated felony charges against a Latino driver and his girlfriend and to place their children in foster care unless they signed a waiver.”

Nevada has its own record of suspect civil asset forfeiture cases. Over a two-year period Humboldt County deputies seized $180,000 in cash from motorists.

In one case a dashboard camera caught a deputy seizing $50,000 from a man who claimed he won it at a casino. “You’ll burn it up in attorney fees before we give it back to you,” the deputy said. The man was threatened with having his car impounded, too, if he did not cooperate and waive his rights.

Some states have passed laws to curb the extortionate practice by police by requiring that an actual criminal conviction before assets may be taken.

During the 2015 legislative session Republican state Sens. Don Gustavson of Sparks and James Settelmeyer of Minden sponsored a bill that would have established just such a requirement, but by the time the bill came out of the legislative sausage grinder it merely required police agencies to report their confiscations to the state and specifically declared convictions would not be necessary.

No one has deigned to try to challenge civil asset forfeitures this year in Carson City, but someone should.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

UPDATE: On Monday state Sen. Don Gustavson filed Senate Bill 358 that would require proof of a criminal conviction, a plea agreement or an agreement by the parties before property could be taken under a civil asset forfeiture.

Senator spending money to restrict rights of others to express themselves by spending their own money

Nevada’s freshman U.S. Sen. Catherine Cortez Masto has uncovered a new right in the penumbra of the Constitution. In an email sent out this morning, the senator is seeking support for a constitutional amendment that would reverse the 2010 Supreme Court decision known as Citizens United v. FEC, which said individuals, nonprofits, corporations, unions and other organizations have the right to spend money at any time to express their political opinions under the First Amendment.

Cortez Masto’s email seeks support for a constitutional amendment — called Democracy for All — that would allow Congress and the states to restrict how much money anyone may spend to support candidates or election issues.

Catherine Cortez Masto (Las Vegas Sun pix via USA Today)

Catherine Cortez Masto (Las Vegas Sun pix via USA Today)

In bold-faced type, the email declares: Citizens United defies the very principle on which our country was founded: that every person has an equal say in our democracy.”

An equal say? Sounds like everyone could be restricted to one 140-character Tweet a day.

Never mind that at the time of the Founding, the “say” that constituted the right to vote was reserved for only those who owned property and black males could not vote until after the Civil War and women not until the 20th century. But what’s a little revisionist history when you are begging for contributions so you can spend money to create a constitutional amendment to limit how much money others may spend?

It also sounds like the senator has an ax to grind:

We all remember the disgusting amount of money right-wing groups, like those in the Koch brothers’ network, spent to defeat me in our race for the Senate: over $70 MILLION! And with the Koch network pledging to spend as much as $400 million this cycle, it’s high time we get dark money out of our election process. We cannot continue to allow the deep pockets of special interests to drown out the voices of the average American.

It must not be very dark if she knows how much they spent and how much they plan to spend.

Apparently she is referring to the part of the amendment that would allow lawmakers to “regulate” free speech, which is newspeak for forcing the disclosure of all donors to any given cause.

Actually, Citizens United did not overturn laws requiring disclosing of donors, as witness a dissent by Justice Clarence Thomas:

Now more than ever, (the law) will chill protected speech because — as California voters can attest—“the advent of the Internet” enables “prompt disclosure of expenditures,” which “provide[s]” political opponents “with the information needed” to intimidate and retaliate against their foes.   Thus, “disclosure permits citizens … to react to the speech of [their political opponents] in a proper”—or undeniably improper —“way” long before a plaintiff could prevail on an as-applied challenge. …

I cannot endorse a view of the First Amendment that subjects citizens of this Nation to death threats, ruined careers, damaged or defaced property, or pre-emptive and threatening warning letters as the price for engaging in “core political speech, the ‘primary object of First Amendment protection.’ ” … Accordingly, I respectfully dissent from the Court’s judgment …

If we may be so bold as to remind those who attribute false precepts to the Founders, the Federalist and Anti-Federalist Papers were penned anonymously by men familiar with the anonymous works of Thomas Paine, John Locke and Montesquieu.

Cortez Masto’s screed concludes:

The level of influence from billionaires and millionaires in our electoral system is unprecedented. And it’s ridiculous. We need to end the unlimited and dark contributions of big corporations and special interests if we’re going to have a democratic process and a government that will truly work for all Americans – not just the richest few. How big your bank account is should not permit you to have a louder voice in our democracy.

Thank you for joining me to help restore transparency and fairness to our democratic system.

¡La lucha sigue! The fight continues!

Catherine

Below this is a button one may click to contribute money, as well as a disclosure: “Paid for by Catherine Cortez Masto for Senate.” How would she like it if her speech were restricted?

The problem is that free speech is not free if the incumbent government satrapy can curtail its dissemination.

Justice Anthony Kennedy explained this in his majority opinion in Citizens United v. FEC:

As a “restriction on the amount of money a person or group can spend on political communication during a campaign,” that statute “necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.” … Were the Court to uphold these restrictions, the Government could repress speech by silencing certain voices at any of the various points in the speech process. (Government could repress speech by “attacking all levels of the production and dissemination of ideas,” for “effective public communication requires the speaker to make use of the services of others”).

By the way, the amendment has an exception for the press, which happens to be owned and operated by big, powerful, and oft times rich corporations.

Freedom of the press belongs to those who own them.

The Democracy for All amendment:

SECTION 1.  To advance democratic self-government and political equality for all, and to protect the integrity of government and the electoral process, Congress and the States may regulate and set limits on the raising and spending of money by candidates and others to influence elections.

SECTION 2.  Congress and the States shall have power to implement this article by appropriate legislation, and may distinguish between natural persons and corporations or other artificial entities created by law, including by prohibiting such entities from spending money to influence elections.

SECTION 3.  Nothing in this article shall be construed to grant Congress or the States the power to abridge the freedom of the press.

 

Editorial: SCOTUS curbs WOTUS, but Congress must act

The U.S. Supreme Court (SCOTUS) this past week acted to finally curb, but not eliminate, the unfettered power of the Environmental Protection Agency and the Army Corps of Engineers to control every stream, ditch, wetland or muddy hoof print that might eventually spill a few drops of water into any rivulet that might occasionally be navigable with an inner tube.

Under the agencies’ vague definition of what exactly are waters of the United States (WOTUS) under the Clean Water Act of 1972, the existence of any water on one’s own property promulgates the necessity to obtain a permit before doing anything that might “pollute” that water with anything, including dirt.

In a unanimous decision in Army Corps of Engineers v. Hawkes Co., the court said property owns have a right to sue in court over permitting determinations. The federal agencies had circuitously contended that property owners could only go to court once decisions were final, but essentially argued that all permitting decisions are reviewable and potentially reversible and therefore never final.

In December 2010, the Hawkes Co., which mines peat for use on golf courses among other uses, applied for a permit to mine peat on a 530-acre tract of property it owns in Minnesota. The Corps of Engineers told the company they would have to do numerous tests that would cost more than $100,000.

In February 2012, the Corps determined the land contained “water of the United States” because its wetlands had a “significant nexus” to the Red River of the North, located some 120 miles away. The owners appealed and got the same result, essentially a denial of permission to mine their own property.

In the opinion of the court, Chief Justice John Roberts points out the definition of WOTUS used by the EPA and the Corps includes “land areas occasionally or regularly saturated with water — such as ‘mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, [and] playa lakes’ — the ‘use, degradation or destruction of which could affect interstate or foreign commerce.’ The Corps has applied that definition to assert jurisdiction over ‘270-to-300 million acres of swampy lands in the United States — including half of Alaska and an area the size of California in the lower 48 States.’”

Roberts also noted that a specialized individual permit, such as the one sought by Hawkes, on average costs $271,596 and 788 days to complete, not counting any mitigation costs that might be required. He said the permitting process can be “arduous, expensive, and long.” No kidding. He left out futile.

The Corps told Hawkes after its denial of a permit that it could appeal administratively, but not judicially, or simply do the work without a permit and risk a fine of $37,000 a day and criminal prosecution.

The court said Hawkes has a right to sue in court. So, it curtailed the process but did not put a stop to the draconian obstruction of the right of personal property and burdensome expenses.

In a concurring opinion, Justice Anthony Kennedy, joined by Justices Clarence Thomas and Samuel Alito, said that the EPA and Corps “ominous reach” on interpreting the Clean Water Act “continues to raise troubling questions regarding the Government’s power to cast doubt on the full use and enjoyment of private property throughout the Nation.”

Nevada Attorney General Adam Laxalt, who along with 22 other attorneys general filed an amicus brief in this case, applauded the judgment.

“This unanimous U.S. Supreme Court decision vindicates our position that the Obama administration has continually attempted to avoid the rule of law and judicial review of its unlawful actions,” said Laxalt. “The Obama administration seems determined to move as far and as fast as possible to unilaterally change our constitutional system and our congressional laws. … Fortunately in this case, our checks and balances have protected Nevadans from truly unprecedented federal overreach.”

Congressman Cresent Hardy also lauded the court ruling, saying, “The Court’s unanimous ruling in the Hawkes case reins in an unchecked executive branch.  Property owners should not have their lands locked up by a ‘final agency action’ and be forced to go through a prohibitively expensive permitting process without the ability to appeal the decision. Thankfully, the Supreme Court agrees.”

But the reality is that this decision, while welcome, merely puts a Band-Aid on a hemorrhage. Congress must rewrite the Clean Water Act and properly define WOTUS for the rapacious federal agencies lest they grind commerce in this country to a halt.

The House and Senate passed resolutions that would have blocked the EPA water rule, but in January the Senate failed to override Obama’s veto.

A version of this editorial appears this past week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

Celebrating independence in an age of dependence

This Saturday we celebrate the anniversary of the Declaration of Independence with fireworks and picnics.

But there is another day worthy of a passing mention. That is July 6, the day the declaration was first reprinted on the front page of The Pennsylvania Evening Post. In the following weeks, by order of Congress, at least 30 newspapers reprinted the Declaration of Independence, spreading its simple words and its audacious act of treason against the crown. It was a document for the people, carried to the people by the press.

At the time, the colonies were under virtual blockade and the American Army was vastly outnumbered and often in retreat.

Franklin, Adams and Jefferson

Librarian Robin Shields recounts that when the Boston Gazette published the declaration it carried next to it an advertisement: “Cash given for clean Cotton and Linen RAGS, at the Printing-Office in Watertown.” Most paper was imported from England, and the printer was seeking rags with which to make paper.

In a letter to Congress on July 9, Gen. George Washington reported how his troops were to mark the news of the Declaration of Independence: “The several brigades are to be drawn up this evening on their respective Parades, at Six OClock, when the declaration of Congress, shewing the grounds and reasons of this measure, is to be read with an audible voice.”

In a letter the next day he reported that British deserters were telling him a fleet with massive reinforcements was expected to arrive in New York any day. The situation was dire.

It was in this setting of uncertainty and imminent danger that our founding document was penned. How it fell to 33-year-old Thomas Jefferson to pen the first draft is a matter of some dispute, but I prefer the recollection of chief independence protagonist John Adams.

Years later, Adams recalled that he insisted Jefferson should write it, and Jefferson replied, “Why?”

“Reasons enough,” answered Adams.

“What can be your reasons?”

So Adams bluntly stated, “Reason first: you are a Virginian and a Virginian ought to appear at the head of this business. Reason second: I am obnoxious, suspected and unpopular. You are very much otherwise. Reason third: You can write ten times better than I can.”

Most of which, of course, was nonsense.

Jefferson borrowed liberally from the great minds of the day, unabashedly paraphrasing George Mason’s Virginia Declaration of Rights: “That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.”

Jefferson edited it to the more succinct “life, liberty and the pursuit of happiness.”

In 1825, in a letter to fellow Virginian Henry Lee, Jefferson looked back on those days and his role in writing the founding document. He recalled his motivation and purpose:

“When forced, therefore, to resort to arms for redress, an appeal to the tribunal of the world was deemed proper for our justification. This was the object of the Declaration of Independence. Not to find out new principles, or new arguments, never before thought of … (but) to justify ourselves in the independent stand we are compelled to take. Neither aiming at originality of principle or sentiment, nor yet copied from any particular and previous writing, it was intended to be an expression of the American mind …”

Today 52 percent of Americans, a majority, receive some kind of government check. Federal regulations cost $2 trillion a year. Entitlement programs are going broke. Debt is ballooning. Foreign powers neither trust us or fear us. Morality and ethics are situational. The government enforces only those laws it wishes to enforce. Politicians lie, cheat and steal without fear of facing any consequences. The media are largely toothless and growing weaker.

Even when the voters revolt and elect people they think are fiscal conservatives, the elected officials raise taxes and do nothing to rein in runaway spending on government programs and employee pay and benefits.

At the time of the Revolution, it is estimated the typical tax burden — with or without representation — was 20 cents per capita per year at a time when annual earnings were somewhere between $60 and $100. Today the total tax burden is more than 40 percent.

I wonder whether we have lost that American mind-set that Jefferson cherished. How many of us are still willing for the sake of true liberty to pledge “our Lives, our Fortunes, and our sacred Honor”?

Even the meaning of the word liberty has changed from an inalienable right to something granted by the all-powerful government.

“Our Constitution — like the Declaration of Independence before it — was predicated on a simple truth: One’s liberty, not to mention one’s dignity, was something to be shielded from — not provided by — the State. Today’s decision casts that truth aside. In its haste to reach a desired result, the majority misapplies a clause focused on ‘due process’ to afford substantive rights, disregards the most plausible understanding of the ‘liberty’ protected by that clause, and distorts the principles on which this Nation was founded. Its decision will have inestimable consequences for our Constitution and our society,” Justice Clarence Thomas wrote in the gay marriage ruling this past week.

We’ve strayed far since 1776.

The rules are precisely what the court says they are on any given day due to any given whim

Cato’s Michael Cannon accused the Supreme Court of playing Calvinball in its decision upholding ObamaCare.

In the old Calvin and Hobbes cartoon strip the characters played Calvinball, a game in which the rules were constantly changing to suit a player’s advantage.

You might conclude the court was playing Calvinball in three cases in two days.

In King v. Burwell on Thursday, the court said the words “established by the state” also mean established by a federal agency, when it comes of doling out subsidies.

Also on Thursday in Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc., the court ruled that discrimination can be proven by mere disparate outcomes rather than actual evidence.

In Obergefell v. Hodges, today the court ruled, in its customary 5-4 split, that there is a right to gay marriage in every state, no matter how the citizens of any given state may have voted.

In the ruling today, Justice Antonin Scalia wrote in dissent a sentiment probably held by many libertarians:

Those civil consequences — and the public approval that conferring the name of marriage evidences — can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws. So it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact — and the furthest extension one can even imagine — of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.

Justice John Roberts, back from his sojourn in Humpty Dumpty land in the ObamaCare ruling, opined:

Petitioners make strong arguments rooted in social policy and considerations of fairness. They contend that same-sex couples should be allowed to affirm their love and commitment through marriage, just like opposite-sex couples. That position has undeniable appeal; over the past six years, voters and legislators in eleven States and the District of Columbia have revised their laws to allow marriage between two people of the same sex. But this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise “neither force nor will but merely judgment.” The Federalist No. 78 …

Justice Clarence Thomas in his dissent took apart the Due Process argument of the majority:

The Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built. Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits. The Framers created our Constitution to preserve that understanding of liberty. Yet the majority invokes our Constitution in the name of a “liberty” that the Framers would not have recognized, to the detriment of the liberty they sought to protect. Along the way, it rejects the idea — captured in our Declaration of Independence — that human dignity is innate and suggests instead that it comes from the Government. This distortion of our Constitution not only ignores the text, it inverts the relationship between the individual and the state in our Republic. I cannot agree with it.

How many other rights will now be found in the penumbra of the Constitution now that we have a right to health insurance subsidies no matter what the law actually says, a right to claim discrimination based on statistics (lies, damned lies and statistics) and a right to the benefits of marriage no matter what the law or constitution of a state may say.

Justice Anthony Kennedy, who wrote today’s gay marriage ruling, also wrote the opinion striking down the federal Defense of Marriage Act of 1996, signed by Bill Clinton.

In the that earlier ruling, Kennedy wrote:

The State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism. Here the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. When the State used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community. DOMA, because of its reach and extent, departs from this history and tradition of reliance on state law to define marriage.

That was then, this is now in the game of Calvinball.

Polygamy must be a right, too. It is in the Bible. If Kennedy can cite Cicero and Confucius, why not the Bible?

In fact, Roberts asked that very question: “If not having the opportunity to marry ‘serves to disrespect and subordinate’ gay and lesbian couples, why wouldn’t the same ‘imposition of this disability,’ … serve to disrespect and subordinate people who find fulfillment in polyamorous relationships?”