Over at Reason Mark Moller attempts to muddle through Antonio Scalia's train of thought, and finds it still boarding at the station:
Scalia's preference for rules carried the day in Raich. Remember: Before Raich, the Court's Commerce Clause cases asked judges to brake Congress when it tries to regulate local conduct that doesn't "substantially affect" interstate commerce. Yet, deciding when conduct "substantially affects" commerce is hardly a mechanical exercise. Taken seriously, it requires hard calls and may yield unpredictable results.Scalia himself made this point in "The Rule of Law as a Law of Rules," where he expressed "hope" that the Court would give up efforts to restrain legislation under the so-called "Dormant Commerce Clause," which asks courts to restrain state laws that burden interstate commerce. As he explained, deciding whether state laws "affect" interstate commerce "to an excessive degree" is a "standardless" inquiry.
And give credit where credit is due: Scalia's reading of the Commerce Clause in Raich is pretty clear. It tells lower courts they should avoid inquiring whether regulated conduct "affects" "interstate commerce," when Congress targets that conduct as part of a detailed regulatory scheme. That's easy for courts to apply, because it guts the Commerce Clause like a fresh mackerel.
[...]
What's the Constitution good for, then? Think liberty. It's a quaint value in the eyes of many legal mandarins, but one whose promotion is evident on the face of the Constitution. Filled with open-ended clauses that inspire endless debate, the Constitution invites litigation. Much of that litigation targets the government, since the broadest clauses are also those that set limits on what government can do. And that's by design: In the hands of puckish Americans and occasionally bold judges, the Constitution raises the costs of government's business, making America more difficult to govern. And liberty benefits. After all, a country in which officialdom is constantly hen-pecked by litigious citizens must, of necessity, rely first and foremost on private ordering.No doubt the temptation to contain our disorderly Constitution, by removing the messy, litigious parts, is strong for those, like Scalia, who equate law with rules. But, in the end, that urge is itself lawless. Scalia condemns judges who enact their preferences at the expense of the law as it has been declared. Perhaps it's time to look in the mirror.
My darkest suspicion is that Scalia didn't apply any discernable principle at all, he set all that aside because because marijuana is eeeviiiil, in the same way some lefties think of Haliburton, eeeviiiil corporation!
Is there any concrete limit left in the Constitution? Aside from the simple nuts and bolts governing makeup of the three branches of federal government, does the bill of rights mean anything?
Amendment I Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; [unless that religion insults some protected minority class]
or abridging the freedom of speech, or of the press; [unless that speech threatens the re-election of politicians or offends anyone] or the right of the people peaceably to assemble, [unless you might embarrass the president or other VIP] and to petition
the Government for a redress of grievances. [Petition away! Knock yourself out. We've got big dumpsters.]
Amendment II A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. [Unless the arms are too useful, and make the free state too secure.]
Amendment III No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law. Guess that one's OK for now, until the drug war necessitates...
I think you all see where I'm going with this. We've reached a point where the ends justify the means, where we like the Constitution until it doesn't allow us to do what we want to do.
This reminds me of a Talkleft post from a few weeks back, quoting Scalia:
The Constitution, when it comes before a court, should mean exactly what it was intended to mean when it was adopted, nothing more, nothing less.
Laughable. Here's part of Clarence Thomas' dissent:
Certainly no evidence from the founding suggests that "commerce" included the mere possession of a good or some purely personal activity that did not involve trade or exchange for value. In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana.
(Aside - Thomas here establishes himself as the only credible originalist on the court, with an act of real intellectual bravery. His critics have long described him as intellectually inept and dependent on Scalia. How wrong they were.)
Posted by Walter at June 14, 2005 09:56 PM