Skip to comments.Scalia book: Landmark Supreme Court decision in 1942 expanded Commerce Clause “beyond all reason”
Posted on 06/19/2012 8:52:12 PM PDT by Ken H
Justice Scalia writes, for instance, that he has little use for a central precedent the Obama administration has cited to justify the health care law under the Constitutions commerce clause, Wickard v. Filburn.
In that 1942 decision, Justice Scalia writes, the Supreme Court expanded the Commerce Clause beyond all reason by ruling that a farmers cultivation of wheat for his own consumption affected interstate commerce and thus could be regulated under the Commerce Clause.
Justice Scalias treatment of the Wickard case had been far more respectful in his judicial writings. In the books preface, he explains (referring to himself in the third person) that he knows that there are some, and fears that there may be many, opinions that he has joined or written over the past 30 years that contradict what is written here. Some inconsistencies can be explained by respect for precedent, he writes, others because wisdom has come late.
(Excerpt) Read more at hotair.com ...
...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.
Scalia concurring in Raich
New Scalia book: Landmark Supreme Court decision in 1942 expanded Commerce Clause beyond all reason
Thanks Ken H.
Get a load of this:
US vs. Stewart (2003) was sent back down the ladder to the Ninth Circuit to be reconsidered in light of Raich:
... Citing the results of the Gonzales v. Raich case (June 5, 2005), the Supreme Court decided not to hear the case but rather to vacate the ruling below and remand it to court of appeals "in light of" Raich. The Ninth Circuit was thereby directed to reconsider Stewart and be guided in that reconsideration by Raich.
In US vs. Stewart (2003), the United States Court of Appeals for the Ninth Circuit found against the defendant, ruling that possession of homemade machine guns can be constitutionally regulated by the United States Congress under the Commerce Clause, where initially they ruled in favor of Robert W. Stewart, Jr.
... and here's the kicker:
Who argued for the US Government in US vs. Stewart (2003) as Acting US Solicitor General? Answer: Paul D. Clement, the attorney for the petitioners in The United States Department of Health and Human Services, et al. v. Florida.
We should boycott Scalia’s book to teach him a lesson for expanding government control. The fool does not understand the difference between commerce and activities that impact commerce in a very indirect manner.
You beat me.
I stopped listening to anything Scalia says about a conservative view of the Commerce Clause after Raich. He completely blew it, and created an interpretation of the CC that has no conceivable limit.
IMHO, Raich is where Thomas shined through as a more conservative judge than Scalia.
It is because Thomas bases his philosophy on Natural Law Theory—the Fundamental philosophy of Common Law and John Locke and our Founder’s thinking——which is all embedded in the Constitution which is supposed to be the Supreme Law of the Land. Just laws (John Marshall) can NEVER contradict the Constitution-—they are “Null and Void” if they do. (This includes the meaning and intent of the document which is easy to understand because of the Federalist papers, etc.
Common Sense comes from Natural Laws-—the Laws of Nature-—Reason and Logic come from Natural Law Theory. Scalia doesn’t understand it.
And—the BIGGIE-—Natural Rights come from God. That means-—we have Objective Truth——Scalia believes that abortion can be voted on in the States and if the “majority” believes it is moral to kill babies and votes for it-—it becomes Just Law. Justice is a Cardinal Virtue-—Just Laws have always got to promote Virtue and not deprive any humans of the right to life. A fetus can be proven to be viable and a human being—a majority can’t take away their inalienable right to life.
Homosexual “marriage” throws out Natural Law-—throws out Reason and Logic and Science. Just Laws are reasoned-—never based on insane urges which destroy health and ignore the teleological ends of human beings-—it is a joke. Homosexual “marriage’ is Unjust Law at best. There is no basis of reason or logic in the insane urges. That means “rights” come from Barney Frank????? Rights originate from God as stated in our Founding Documents—and sodomy is not a “right” from God.
Rule of Law can exist ONLY if there is “Just Laws”. Arbitrary Laws create unjust laws. All Positive Laws that promote unfairness or immorality are unconstitutional.
Now, this twisting of the legal system began with Oliver Wendell Holmes and John Austin ideology that morality can be separated from Law. That is saying that Laws can be immoral—or promote immorality. CAN”T. They are not Just Law if they do. Austin’s philosophy-—Scalia’s-—is incompatible with our Constitution. Scalia HAS to understand Natural Law Theory like our Founders.
That may be because Scalia has a higher regard for stare decisis than Thomas, rather than because of any change of heart over time. As much as he may hate a prior Supreme Court ruling, he'll probably feel bound by it (which, IMO, is a shame, especially in a critical case like this).
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 anythingand the Federal Government is no longer one of limited and enumerated powers.
Our federalist system, properly understood, allows California and a growing number of other States to decide for themselves how to safeguard the health and welfare of their citizens. I would affirm the judgment of the Court of Appeals. I respectfully dissent.
Justice Thomas, Raich
Sometimes I think Federal Supreme court judges say things like this just to make fun of the usurpation of the Federal government. To put into plain English & action the scope of their disregard for any meaningful limitations upon their power.
Perhaps they think this is the only way to really alarm the people to our loss of Constitutional government. If so the experience of the last 50+ years has shown that such attempts have falling upon deaf ears.
This case is among a few that has made Thomas my favorite Federal Supreme court judge.
“That may be because Scalia has a higher regard for stare decisis than Thomas, rather than because of any change of heart over time. As much as he may hate a prior Supreme Court ruling, he’ll probably feel bound by it (which, IMO, is a shame, especially in a critical case like this).”
I think that explication which seems to be his own is proably the case.
I just hope he recognizes that leftist “judges” will as they have uses that “respect” as nothing more than a tool to write their own NEW law.
Stare decisis is only usesfull in the defense of fairness and Constitutional Government if it is consistently held thou out all time and rooted to the first such case. Not the last, not the most recent, nor even the most popularly prominent.
Roe V. Wade for example overturned numerous past rulings and was itself built upon then recently ruling that had likewise done the same. There was no respect for stare decisis in issuing them edict from the bench, and as such to uphold them is/was also to violate stare decisis.
All this aside I have a better idea. It's time for a Constitutional Convention and an amendment that ELIMINATES the commerce clause altogether. I have yet to hear a legitimate argument as to why the federal government currently needs any authority over commerce between states. This is one area where the country has truly changed. In the days of ratification of the constitution a central regulatory authority was needed between the newly minted republic. Today, we live not only in an interstate market but a world market and markets are best left to regulate themselves. The commerce clause is simply not needed and is one of the single greatest destroyers of our liberty. Find me someone arguing for the commerce clause and I will show you a big government statist.
My Opinion: We need to address several key areas by convention. 1. The commerce clause, either eliminate or limit so strictly as to be useless for the expansion of government power. 2. Term Limits for all federal government offices in all branches. Possibly even including federal judges. 3. Balanced budget amendment.
My opinion is it's time for the commerce clause to go but it will take a convention of the states to do this. Have no fear a CC only proposes amendments that the congress will NEVER put to a vote. This country is mostly made up of red states. This is a fight the libs can't win and they know it. We can regain our liberty and again live free without a violent revolution. Our situation today is the very reason the framers included the Constitutional Convention in our founding documents.
The Commerce Clause had one purpose, and it remains: to prevent the States from erecting tariff and other trade barriers between and among them.
Maybe the clause could be re-written for today’s illiterates, or maybe we could as a Nation insist on better, balanced, and complete education.
At the moment we stand before the entire world as the people who elected a poseur, fake, inauthentic, unqualified, and un-American as out President. As far as I am concerned this is an indictment of our entire populace. The American people should have risen up as one as soon as this knave poked his head up out of the toilet of his birth.
Good points, good post.
Thomas did blow it at least once on that. He concurred with the majority in Eldred v. Ashcroft, which allowed a congressional extension of copyright far beyond what was reasonably allowed for in the Constitution.
I am not stating that Thomas is perfect. He is not. But he is one of the best—if not the best— on the Supreme Court at this time. I judge “best” by the understanding of the principles of the Supreme Law of the U. S.—the Constitution. John Austin’s ideology (Ginsberg, Sotomeyer, Kagan) does not belong on the Supreme Court which embraces “Just” law. Austin’s ideology proposes arbitrary law—Legal Positivism devoid of morality (Rule of Man) which is unjust and contradicts our principle of Rule of Law and the Virtue of Justice.
Copyright Laws can be quite complex and convoluted and are confusing to even the most learned jurists. You would get many different views on just what is fair and equitable. It is probably one of the toughest areas of law today.
He didn't "blow it."
He got it exactly right.
Copyright is complex in individual cases. This is about the overall grant of copyright as authorized by the Constitution. It was clearly for a limited time, for the benefit of the people (not the few), using the mechanism of an incentive to create more works. The plain language and the Founders’ discussions leading to the Copyright Clause show this very clearly, as clear as their intent in the Commerce Clause.
It is only with an interpretation as warped as Scalia’s Raich thinking that copyright could be allowed to be what it is today.
Yes——it is now a mess. I have close friends who are attorneys that deal with copyright laws.
I have been disappointed with Scalia’s “conservative” opinions in other cases. Some are right on—but the Raich “thinking” was awful.
Scalia understands logic and reason, being essential to law. His disregard at times for “justice” as coming from Natural Law (Common Sense) and God (Higher Power) shows a disregard for the Supreme Law of the Land.
The idea that a Kagan could be allowed on the Supreme Court is the biggest crime of all, though. It might as well be Karl Marx on the bench. We should have her impeached. It is not possible to take the oath for office with her ideology.
Agreed. Thomas set a foot wrong once in a while, but it’s very very rare, and it’s also far less than any other justice.