(1) The protection of interstate commerce was a key reason for the creation of the Constitution. Under the Confederation, the separate states erected trade and tariff barriers that strangled commerce between the states. Without the Constitution and the Commerce Clause power to prevent that, the United States would have been vastly poorer and weaker.
(2) The differences between Scalia and Thomas on the Commerce Clause stem from larger philosophical differences in their understanding of originalism.
Scalia is unwilling to reverse case law decisions that have been settled for seventy five years or a century and incorporated into the fabric of American law and life. Thomas, a more stringent originalist than Scalia, is willing to reverse decisions that he sees as wrongly decided no matter how long settled those decision are.
Yet even when Scalia and Thomas are united, as they often are, they are but two votes on a nine member Court.
(3) In 19th Century America, Congress applied the Commerce Clause power more expansively so as to spur and protect the development of internal commerce and communications. Otherwise, every railroad, telegraph line, shipping company, and so on would have been exposed to the parochial and often predatory and corrupt enactments of state and local governments. This is squarely within the ambit of the original intent of the Commerce Clause power.
(4) The use of the Commerce Clause power as the constitutional basis for the New Deal federal welfare and regulatory state is another matter. A principled opposition to that expansion and an effort to reverse it are consistent with the philosophy of Scalia and Thomas.
(5) Raich is yet another matter because it deals with the prohibition of marijuana, something that virtually all states and the federal government agree on. Permitting one or a handful of individual states to legalize marijuana subverts that ban is logically contrary to the commerce clause power.
Bravo! Well put, FRiend!
He's willing to when it suits him, not willing to when it doesn't. But forget Scalia. The larger point you make is one that supports my thesis. The Court's application of stare decisis (nowhere to be found in the Constitution itself) makes their decision all the more damaging, as the antifederalists pointed out at the time. Precedent upon precedent, etc.
That is why I argue that the problem is structural--the Federal Judiciary is too powerful, extends over too large a jurisdiction,and is unaccountable. In short, Article 3 was a mistake.
But not all, thus violating the sovereignty of the state that doesn't want to prohibit it. If California wants to be the state that attracts all the stoners, then so be it. That's within the power of the people of California.
What do you find in the commerce clause power that permits federal legislation of that ban in the first place? At most, it empowers the federal government to prohibit it's interstate transport via registered common carriers.