Scalia and the Commerce Clause

National Review ^ | Feburary 9, 2011 | Robert VerBruggen

[Hawk720]

As the challenge to Obamacare’s constitutionality approaches the Supreme Court, the question on everyone’s mind is: How will Anthony Kennedy vote? But perhaps we should also ask: How will Antonin Scalia vote? Scalia is known as one of the Court’s most conservative justices, but a concurrence he wrote in a 2005 case should give opponents of the health-care law pause.

[Boogieman]

“Limited government has been over for a long, long time. I wouldn’t take it so hard. It’s outside your control.”

I’m glad the founding fathers didn’t subscribe to such pessimism.

[Frantzie]

The courts have said American serfs have no standing in questiong usurpers. Sick.

[DrC]

“this lady will simply jump off a bridge in despair.”

You’re not patient enough to wait for a decision by a death panel?

[NutCrackerBoy]

The Constitution created an unaccountable, supreme judiciary that gets to decide what the words of the Constitution mean, without appeal.

I say that is an untrue statement. The Constitution did not specify exactly how disputes among the branches should be resolved. It is only in practice and precedent that the judicial has that power.

[privatedrive]

Not only must we buy insurance, but we are forbidden from purchasing it across state lines. And in NY we are forced to buy it from ‘non-for-profit’ HMO’s who don’t pay any taxes and who have stockpiled billions and whose executives get multi-million dollar salaries. To hell with the Constitution. Meet me at that bridge.

[Ken H]

If Scalia twists things to his agenda, as you say, well, we all might as well move to China, because it is already over in this country.

Haven't read Raich or Wickard.

______________________________________

From Scalia's decision in Raich:

...the authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws governing intrastate activities that substantially affect interstate commerce. Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce.

http://www.law.cornell.edu/supct/html/03-1454.ZC.html

______________________________________

1. Do you agree or disagree with Scalia?

2. Do you think he is being true to the original understanding of the Commerce Clause?

3. If your answer to #2 is "No", why do you think he wrote what he did?

[Huck]

It was well understood and documented at the time that the judiciary would interpret con. law. Hamilton said so in Federalist 78 (approvingly) and Brutus said the same (disapprovingly) in his number 78-84.

[Constitutionalist Conservative]

“Some people say drugs were involved [in Raich], and that may have influenced some of the justices.”

That sentence is a lot funnier than the author intended it to be.

[Huck]

Their situation was much different than ours.

[subterfuge]

I do have to answer No on #2 and I can’t imagine how he arrives at that conclusion. Is this the one in reference to the War on drugs, etc?

[subterfuge]

Well done. Thanks Huck. Now i understand.

[Huck]

Thanks man. I hate to always be the bearer of bad news. Scalia talks a good game, but definitely gets off the bus here and there. We're safe on this Obamacare though, because he's got no reason to be for it. The activity/inactivity will most likely be the line of attack.

The bad news is that even so, commerce clause power is massive, and even Scalia has been willing to uphold it when it suits him. Sad but true.

[Ken H]

Is this the one in reference to the War on drugs, etc?

Yes. It was the California medical pot case.

[TheThinker]

Don’t despair. That’s what the Left wants. They tyrannize others into submission because it pleases them. Don’t submit and give them the satisfaction.

[lentulusgracchus]

Why is it that otherwise rational, conservative constitutionally solid Justices will turn the constitution into a pretzel in their attempts to uphold clearly unconstitutional drug enforcement laws?

Because they don't want to see your kids' brains turned into pretzels?

Because they don't want to live in an America in which 40% of the population is living on public support blowing dope?

Because they've read about the Opium Wars and what happened to Chinese society?

Pick one.

[lentulusgracchus]

Saw your essay about judicial review and the Commerce Clause on that 18-month-old thread.

Belated suggestions for constitutional fixes:

• Censorate. Federal officers (retired) empowered to remove any person from federal office for misfeasance, nonfeasance, trimming, backfilling, lying -- whatever. Judicial logrolling and positivism. Demagoguery. Bridges to nowhere. Removal from federal office and public life at the federal level. Part of the U.S. federal government, restricted to that sphere.

• Ostracon. Plebiscitary removal of any individual from society (exile) for notoriety, misfeasance, misconduct, or any reason whatsoever. Would operate by States, by initiative and referendum, and be exercised by the People and carried out by the Executive of the State. Officers of the State would be perforce removed from office as well as the State.

Just a couple of suggestions.

[circlecity]

Well, if the ends are all that matter then lets just get rid of the constitution all together. We’ll just let the Supreme Court make it up as they go and give them absolute power to protect us from that terrible drug menace. Certainly a drug free society is more important than a constitution. Even though there has never been a drug free society in world history.

[thecabal]

Thanks for posting that. You make one hell of a powerful argument. It seems obvious that the problem isn't with the Commerce Clause per se; it has been stretched so far from its original meaning that it could have easily been another clause used to justify omnipotent Federal power.

The quotation that you pulled from Anti-Federalist 82 was damned prescient:

They will be able to extend the limits of the general government gradually, and by insensible degrees, and to accommodate themselves to the temper of the people. Their decisions on the meaning of the constitution will commonly take place in cases which arise between individuals, with which the public will not be generally acquainted. One adjudication will form a precedent to the next, and this to a following one.

And shame on Scalia for not putting a dagger into Wickard.