Since I’ve been preparing for my first year at the University of Virginia School of Law, I have vacated my seat as pseduo-pol pundit number one. This is evident by my lack of blogging. However, I have been neck-deep and more in legal research (aside from thesis research on blogging, surprisingly enough). Here is a gem I came across today:
Scalia Scuttles Federalism
The transcript of John Eastman’s interview with Hugh Hewitt about the SCOTUS decision in the Oregon assisted suicide case is quite enlightening. In Wickard v. Filburn, 317 U.S. 111 (1942),the Supreme Court basically gave the constitutional green light to the modern national regulatory state by holding that the commerce clause of the Constitution authorized the federal government to regulate a farmer’s raising of wheat he had grown on his own land for personal consumption. As Wikipedia explains, “Filburn’s wheat competed with wheat sold in interstate commerce, because, had he not used his home-grown wheat, he would have had to buy wheat on the open market. The Court held that Congress could regulate wholly intrastate, non-commercial activity if such activity, viewed in the aggregate, would have a substantial effect on interstate commerce.”
This expansive view of the scope of the power granted Congress under the commerce clause is why I have often referred to the continuing validity of Wickard as the most consequential issue of modern constitutional jurisprudence. It is an article of faith for those of who take federalism seriously that Wickard must go. Unfortunately, as Eastman explained to Hewitt, it appears that Scalia has now wholly surrendered to Wickard and, worse yet, has gotten new Chief Justice John Roberts to accept that view:
HH: Now I want to read the last paragraph of Justice Scalia’s dissent, and then I want you to explain it to people, John, because it’s very interesting. I mean, it’s very, very interesting. Justice Scalia writes, “The Court’s decision today is perhaps driven by a feeling that the subject of assisted suicide is none of the federal government’s business. It is easy to sympathize with that position. The prohibition or the deterrence of assisted suicide is certainly not among the enumerated powers conferred on the United States by the Constitution. And it is within the realm of public morality, bonos mores, traditionally addressed by the so-called police power of the states. But then, neither is prohibiting the recreational use of druge, or discouraging drug addiction among the enumerated powers. From an early time in our national history, the federal government has used its enumerated powers, such as the power to regulate interstate commerce, for the purpose of protecting public morality. For example, by banning the intersate shipment of lottery tickets, or the interstate transport of women or immoral purposes. Unless we are to repudiate a long and well-established principle of our jurisprudence, using the federal commerce power to prevent assisted suicide is unquestionably permissable. The question before us in not whether Congress can do this, or even whether Congress should do this, but simply whether Congress has done this in the C.S.A., Controlled Substances Act. I think there’s no doubt that it has. If the term legitimate medical purpose has any meaning, it surely excludes the prescription of drugs to produce death. Unpack that, John Eastman. It’s very dense.
JE: Well, it’s very dense, and it’s the reason Justice Thomas wrote separately in dissent as well. Look, Justice Scalia is saying that this is clearly not commerce, it’s not interstate. The power to regulate the health, safety, welfare and morals of the people is a state power, as originally understood. But we’re 70 years past that fight having been fought and lost. The federal government routinely today regulates police power type things that are properly for the states, and Justice Scalia is saying we’re at least going to be consistent. We’re either going to follow our jurisprudence, and let the federal government regulate basically anything, or we’re going to repudiate 70 years of jurisprudence. Now until last year, in the medical marijuana case, Justice Scalia was on the side of let’s repudiate this stuff. …
HH: And now, the new Chief joined with Scalia, not with Thomas, and interpret that for us.
JE: Well, you know, I actually think that’s a pretty profound signal, looking at the tea leaves. And I’m disappointed in the new Chief for it. The fight between Thomas and Scalia, and the difference slice they put in their respective dissents, is one about whether we’re going to have an administrative state, or whether we’re not going to have an administrative state. And Justice Scalia is much more willing to be deferential to the administrative state here than Justice Thomas has been.
Some will condemn Scalia for abandoning originalism in this line of cases. Yet, I think these cases actually reveal something more interesting about Scalia, which is that he is not purely an originalist. Instead, Scalia’s jurisprudence has elements of originalism and textualism, but also of traditionalism. The latter looks at how the Constitution has been interpreted over time, such that well-established traditions become entrenched. The real problem with Scalia is that he doesn’t seem to have a hierarchy for choosing between the three. As David Zlotnick observes:
Heterarchy, not hierarchy, could be the battle cry of those critics who focus on the interplay of Scalia’s methods rather than on the individual components. Led by Jeffrey Rosen, this group alleges that, even if Scalia’s methodology is hierarchical in theory, his opinions reflect a more opportunistic picking and choosing of the method that leads to his preferred result. Rosen’s contention is that “in case after case, Scalia chooses among mutually inconsistent interpretive principles - textualism, originalism, traditionalism - in order to reach results that he finds politically congenial.” For example, Rosen challenges Scalia’s claim that the Due Process Clause of the Fourteenth Amendment should be read to refer only to procedural rights. He argues that a historical understanding reveals a “substantial overlap … between notions of due process of law and notions of equal protection of the law,” as well as a “view [of] the due process clause as a mandate that judges should protect certain fundamental economic rights.”
A number of scholars have come to similar conclusions in other areas. In his examination of Scalia’s takings jurisprudence, William Fisher found that in Lucas v. South Carolina Coastal Council, Scalia devised a precedent-based clear rule for takings without first exploring the Framers’ understanding of the Takings Clause. If he had, Fisher contends, he would have discovered that the original understanding of this clause “proscribed only formal expropriations of private property,” not the effects of regulations on property value that Scalia’s rule encompassed. …
Normally, Scalia evades these contradictions by resorting to overly confident textualist assertions or by abdicating his commitment to conduct historical research. Once in a while, however, Scalia comes close to admitting that he does not always follow a strictly hierarchical approach beginning with text and proceeding to history and clear rules. For example, in Waters v. Churchill, he acceded to a judicially created First Amendment doctrine (a clear rule) but admitted that he had not “inquired into the historical justification” of that rule.
Rather than that of a systemic ideologue with a hierarchy of methods, Scalia’s constitutional practice better resembles that of a practical handyman who reaches into his workbox to select the tool best suited to accomplish a particular job. The question that remains, however, is how often his political values influence his methodological choices.
There is much to be admired about Scalia. It no longer seems possible, however, to believe that he is developing a coherent conservative jurisprudence. Nor, insofar as results are concerned, that he can be expected to bring back the Constitution from the exile to which Wickard assigned it.
This is one of the first cases I’ve ever disagreed with Scalia on. And what’s worse, he pulled newly-minted Chief Justice Roberts along for the ride! I hope this doesn’t mean Scalia is becoming a Bush Admin tool. The majority opinion by Stevens makes it pretty clear that AG Ashcroft went out of bounds with this Interpretive Rule.