In neither of them Scalia seems to go against his originalist interpretation of the Constitution.
Wrt marijuana—both sides agreed that Congress had authority to regulate use of marijuana, and from this small scale use arguably followed. Wrt free speech—that’s one of many defensible interpretations of what the First Amendment was supposed to mean.
The problem is stupid and ambiguous Constitution—you can “solve” it either by trying hard to apply it literally like Scalia until people fix it; or pretend it says something it doesn’t like majority in Roe v. Wade.
How about Gonzalez v. Raich or the very recent Citizens United v. FEC?
In neither of them Scalia seems to go against his originalist interpretation of the Constitution.
Wrt marijuana—both sides agreed that Congress had authority to regulate use of marijuana, and from this small scale use arguably followed. Wrt free speech—that’s one of many defensible interpretations of what the First Amendment was supposed to mean.
The problem is stupid and ambiguous Constitution—you can “solve” it either by trying hard to apply it literally like Scalia until people fix it; or pretend it says something it doesn’t like majority in Roe v. Wade.
Bush vs Gore?