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To: sr4402
Slamming Scalia for the Commerce Clause seems hardly fair since it's been used for Decades, if not since the war of recent unpleasantness (Civil War) to deal with issues between the states.

Scalia deserves whatever criticism he gets for Raich. It was clearly a case of outcome-based jurisprudence, especially when compared to Lopez.

I included him in the title in part as an attention-grabber (I'd like people to read my essay, after all), but in my view it is fair criticism and it goes to my larger point.

The power of the federal judiciary, and their methods (common law, stare decisis) make their errors virtually permanent, and the more times an error is affirmed, the more unlikely it becomes that it will be reversed.

The powers granted to the the Fed Gov via commerce clause jurisprudence are so monumentally far-reaching, it is critical to the survival of any semblance of limited federal power that they be reversed. If not, we're screwed.

The Commerce Clause is about to be severely tested by the current Administration, Senate and Congress in whether they can impose their health care laws upon the states. I consider that they do not have this right.

Even if the Court pulls together a majority opposed to federal health care legislation, they will do so in a limited way that does not undue the overall impact of the commerce clause--in short, it would be a political victory, not a judicial victory. Contrast Lopez and Raich and you'll see what I mean. They'll apply the law however they see fit to reach the desired end. This demonstrates the inherent flaw in the Constitution that created a judiciary that is more powerful than the legislative branch, and unaccountable for their errors. Scalia is the wrong target.

18 posted on 10/16/2009 8:59:32 AM PDT by Huck ("He that lives on hope will die fasting"- Ben Franklin, Poor Richard's Almanac)
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To: Huck
-- the more times an error is affirmed, the more unlikely it becomes that it will be reversed. --

I'd add to that that the Circuit Courts participate in this. The Circuits can misconstrue SCOTUS precedent, and SCOTUS can refuse cert if it likes the outcome. See chronic misconstruction of Presser, for example.

22 posted on 10/16/2009 9:04:06 AM PDT by Cboldt
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