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Sunday, June 24, 2012


Paul Campos:

The argument against the ACA is that it supposedly exceeds Congress’s power to regulate interstate commerce. The problem for Scalia is that in 2005 he voted to uphold a far more expansive federal law – one that criminalized the cultivation of medical marijuana for purely personal use in a state where doing so was legal. In that case, Scalia wrote that, “where Congress has authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective.”

Since no one doubts that the healthcare industry involves interstate commerce and that Congress has the power to regulate it, Scalia would seem committed to upholding the ACA – which is perhaps the main reason conservative legal academics have spent the last couple of years inventing a fanciful distinction between regulating interstate commerce and “requiring” people to engage in it. Such a distinction would allow a judge who accepted it to distinguish the ACA from the law upheld by Wickard.

It now turns out that these herculean intellectual labors were unnecessary. In a forthcoming book, Scalia disowns Wickard v. Filburn, the 70-year-old precedent on which his 2005 vote was explicitly based. (Wickard found that Congress could regulate the growing of wheat for personal consumption, since doing so affected the broader interstate market for the commodity.) Wickard, Scalia now says, “expanded the Commerce Clause beyond all reason.”

Yeah, Scalia himself has noted that the weight of time strengthens precedent. McIntyre v Ohio Elections Commission (1995):

But there is other indication, of the most weighty sort: the widespread and longstanding traditions of our people. Principles of liberty fundamental enough to have been embodied within constitutional guarantees are not readily erased from the Nation's consciousness. A governmental practice that has become general throughout the United States, and particularly one that has the validation of long, accepted usage, bears a strong presumption of constitutionality. 

This echoes the Marshall Court's opinion (delivered by Paterson as Marshall had recused himself) in Stuart v Laird (1803), but obviously even a couple centuries and his own words will not be enough to sway Mr Originalist.  Shame his legacy is going to be merely that he was a whip smart, partisan hack.


Show a little "yuhyoohappy" during the NTodd Ain't Ann Romney Fundraiser *

June 24, 2012 in Constitution, Schmonstitution | Permalink


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When the opportunity arises, the Vatican should make Scalia the Pope. He'd love the little-restrained authoritarian nature of the position, and we would be well shut of him.

Posted by: Steve Bates | Jun 25, 2012 8:29:43 AM

Nah, just appoint him ambassador to the Vatican. Less opportunity for troublemaking.

Posted by: Snarki, child of Loki | Jun 26, 2012 5:48:43 AM

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