December 15, 2010

"Are you serious?" — a constitutional law argument in the Bowers v. Hardwick tradition.

On Monday, I took Josh Marshall (and Nancy Pelosi) to task for resorting to constitutional argument by laughter. They were addressing the "individual mandate" — the federal law requiring private citizens to buy health insurance, which a federal judge said is beyond the reach of Congress's enumerated powers. In my post, I chided liberals and lefties about using their own sense of ridiculousness as a legal argument because "There was a time when people laughed at the idea of gay rights."

An emailer reminds me of the precise language that appeared in the Supreme Court's case that ruled that states could criminalize homosexual sodomy. In Bowers v. Harwick, Justice Byron White (a JFK appointee) wrote for the majority:
Proscriptions against that conduct have ancient roots.... In 1868, when the Fourteenth Amendment was ratified, all but 5 of the 37 States in the Union had criminal sodomy laws. In fact, until 1961, all 50 States outlawed sodomy, and today, States and the District of Columbia continue to provide criminal penalties for sodomy performed in private and between consenting adults.... Against this background, to claim that a right to engage in such conduct is "deeply rooted in this Nation's history and tradition" or "implicit in the concept of ordered liberty" is, at best, facetious.
When Bowers was reversed 17 years later, in Lawrence v. Texas. Justice Scalia — the liberals' least (or second-least) favorite Justice — saw fit to quote those words in his dissenting opinion.

My emailer was James Taranto, author of the Wall Street Journal's "Best of the Web," which quoted my blog post yesterday and said:
We recall a conversation with a young liberal lawyer we met at an event in late March, a few days after the House passed ObamaCare. When we pointed out that there were likely to be court challenges to the new law, particularly the mandate to purchase insurance, she was dismissive. She asserted that the constitutional questions were well settled. When we offered arguments to the contrary, she did not engage them but became emphatic to the point of belligerence, insisting that it was "crazy" to harbor any doubts about the constitutionality of ObamaCare.

Our position was not that ObamaCare was clearly unconstitutional or that it was likely to be struck down, merely that there were serious constitutional arguments against it that had some possibility of prevailing. This modest claim so shocked our new acquaintance that an initially pleasant encounter turned rancorous and left us feeling she had insulted our intelligence....
Well, you'll feel better if you dance like Fred Astaire:



Here's Fred with the words to the Gershwins' "They All Laughed."
They all laughed at Rockefeller Center
Now they're fighting to get in
They all laughed at Whitney
and his cotton gin
They all laughed Fulton and his steamboat
Hershey and his chocolate bar
Ford and his Lizzie
Kept the laughers busy
That's how people are
They laughed at me wanting you
Said it would be, "Hello, Goodbye."
But oh, you came through
Now they're eating humble pie
But speaking of Robert Fulton and his steamboat, and who gets the last laugh, Fulton was a famous loser in the most famous Commerce Clause case of them all, Gibbons v. Ogden, and Fulton was on the side that argued for the narrow interpretation of Congress's enumerated power.  Chief Justice John Marshall laid down the broad interpretation:
This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution.... [T]he sovereignty of Congress, though limited to specified objects, is plenary as to those objects....

The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections are, in this as in many other instances, as that, for example, of declaring war, the sole restraints on which they have relied to secure them from its abuse.
This is the beginning of the line of expansive interpretation of the Commerce Clause that the proponents of health care reform will rely on as they take their case up on appeal to the 4th Circuit and, presumably, to the Supreme Court. We'll see who's dancing and who's eating humble pie then.

77 comments:

ricpic said...

The idea of gay rights is grotesque.

edutcher said...

All the chichis laugh at Scalia's statement that Lawrence will open the door to all manner of perversions.

Didn't we discuss one of those perversion Sunday?

RichardS said...

Gibboons v Ogden, if memory serves, had to do with New York granting a monopoly to Fulton on the use of steam ships in NY waters. NY claimed that, therefore, a boat chartered in New Jersey could not ply its trade into New York City. Is that really similar to what we're talking about here?

In his defense of the Bank, after all, Hamilton said that the U.S. government could make a coporation to serve ends listed in the constitution, but it could not make a corporation to regulate the police of Philadelphia, since the U.S. government had not been granted the legal right to regulate the police of cities. And Marshall almost always followed Hamilton.

P.S. If Congress may regulate commerce among the states, and not simply commerce, doesn't that imply that there must be commerce that the federal government may not regulate? If not, the constitution would simply give the U.S. government the right to regulate commerce.

dartmouth05 said...

Ann, are you serious? No mention of the conservative origin of the individual mandate? Where were the conservative arguments against the individual mandate when it was spawned by the Heritage Foundation and put into the GOP's 1994 counterproposal to Clinton's health care form attempts?

former law student said...

Individual mandates are more likely to be found to affect interstate commerce than the Gun-Free School Zone or the Violence Against Women Act, because the price of insurance depends on the number of people participating and when they choose to participate, and most health insurers operate in multiple states.

Alternatively, Universal Health Care could have an "opt-out" provision. At age 21 you'd have a year to opt out, the consequence being you could never opt in.

David said...

"Sometimes I write about law . . . . "

traditionalguy said...

The "Are you serious?" comeback is an announcement that Progressives believe that they elect a King and he can always act as if His Word is law since he is a Divine Right Monarch. Is that true after Washington and all his troops fought and so many died to end Monarch's ever again speaking as if their words are law? If it is still true, then Obama and Pelosi will become the SOL guys.

Chase said...

You can discuss the rightness or wrongness of Lawrence - that is not my concern here. I am simply disgusted that some of the very same "friends of the court" wanting Lawrence to fall were publicly stating that it's fall would not be used in any way to encourage gay marriage. Then, numerous of those publicly stated that Lawrence assured gay marriage must take place.

Not just hypocrites. Lying hypocrites.

Scalia was right.

Again.

Ron said...

What, no props for Ginger's dancing as well? Tsk, tsk!

Marshal said...

" former law student said...
Individual mandates are more likely to be found to affect interstate commerce than the Gun-Free School Zone or the Violence Against Women Act, because the price of insurance depends on the number of people participating and when they choose to participate, and most health insurers operate in multiple states."
__________________________
There is no market where increased demand has no effect on price. Households which do not purchase Holiday Wreaths effect the price for those which do. Does this give the government the right to require that all households purchase Holiday Wreaths?

Once you allow this reasoning there is no constitutional limit on government requirement to purchase for any good or service sold in America. So we're back to writing the interstate requirement out of existence. This contradiction is the clear effect of supporters asserting "constitutionality" based on end results.

Rich B said...

An interesting opinion, with the following germane to current events:

"The subject to which the power is next applied is to commerce among the several states. The word among means intermingled with. A thing which is among others is intermingled with them. Commerce among the states cannot stop at the external boundary line of each state, but may be introduced into the interior. It is not intended to say that these words comprehend that commerce which is completely internal, which is carried on between man and man in a state, or between different parts of the same state, and which does not extend to or affect other states. Such a power would be inconvenient and is certainly unnecessary. Comprehensive as the word among is, it may very properly be restricted to that commerce which concerns more states than one. The phrase is not one which would probably have been selected to indicate the completely interior traffic of a state, because it is not an apt phrase for that purpose; and the enumeration of the particular classes of commerce to which the power was to be extended would not have been made had the intention been to extend the power to every description."

Saint Croix said...

Scalia, Thomas, Roberts and Alito all will say that non-commerce cannot be regulated under the commerce clause.

Breyer, Ginsburg, Sotomayor and Kagen all will say there are no Article I limitations to Congressional power.

Kennedy will say whatever Republican squishes say. Since Republican squishes don't like Obamacare, he will be the 5th vote for upholding the lower court.

And, of course, he will write the opinon.

MB said...

One might say, in the current terminology of the day, that the Commerce Clause is a Zero-Day Exploit of the constitution.

R.L. Hunter said...

Ron said...

What, no props for Ginger's dancing as well? Tsk, tsk!


It's because She's doing it backwards

tim maguire said...

I think Saint Croix is right abotu how this will all shake out. The constitution is just weaselly enough, and legal thinking just subtle enough, that the SC will find for whatever it wants to find for and against whatever it wants to find against.

It's only saving grace is that the SC is never out of step with public opinion for more than a few years. Just long enough for passions to cool on the bigger mistakes.

Obamacare will go down for the simple reason that there aren't enough justices personally in favor of it for the group as a while to buck public opinion.

former law student said...

marshal: in the aggregate, not buying insurance will affect the price of a service in interstate commerce, which the federal government can constitutionally regulate. Waiting to buy insurance until one is likely to need it most will affect the price of a service in interstate commerce. Permanently opting out is the only solution I see that respects the rights of the individual and the power of the federal government

Maguro said...

...the price of insurance depends on the number of people participating and when they choose to participate, and most health insurers operate in multiple states.

Yes, but of course the same thing applies to any other product.

I mean, the price of {fill in the blank} depends on the number of people participating and when they choose to participate, and most {fill in the blank} operate in multiple states.

Taken to its logical conclusion, your argument suggests that the government can force you to buy anything from anybody, does it not?

mtrobertsattorney said...

For all those liberals who think that the individual mandate to purchase insurance is a great idea, what would you think of mandate enacted by Congress that requires everybody to purchase a gun?

(The Attorney General of Virginia was the first to pose this question to the left. It remains unanswered.)

Richard Dolan said...

"argument by laughter"

It's an option when nothing else seems to work, when you don't want to or can't engage the opposition otherwise. It has the added virtue of telling you who is lining up with the Jets and who with the Sharks. When it works, it's a form of shunning. The analogy to a practice usually associated with fundamentalist religious discipline is apt -- lining up with the Jets rather than the hated Sharks is essentially an affirmation of faith.

Justice White's point in Bowers was not an example of argument by laughter. He was citing the indicia of 'fundamental rights' usually used by the SCOTUS, and found nothing there to support the constitutional claim. Whit's observation that the claim had no support in history or current state law was the opposite of a refusal to engage the opposition on the merits, and was not a form of argument by laughter.

W/V: Fakie. Yes, another way to look at 'argument by laughter.'

Beth said...

I enjoyed this post, Althouse. There were twists and turns of human foible, and the final wrapping up with Whitney and the Commerce Clause was creative and unforced. I don't normally comment on your law posts, but this one is stellar. It represents so many aspects of your multi-part blogging persona.

Beth said...

Sorry, I meant Fulton, not Whitney.

Jay said...

the price of insurance depends on the number of people participating and when they choose to participate, and most health insurers operate in multiple states.


So Congress can mandate the purchase of an Iphone and set the price, right?

Better yet, since the FLOTUS is so big on eating healthy, why don't they just mandate we all buy green beans?

Bruce Hayden said...

Individual mandates are more likely to be found to affect interstate commerce than the Gun-Free School Zone or the Violence Against Women Act, because the price of insurance depends on the number of people participating and when they choose to participate, and most health insurers operate in multiple states.

Randy Barnett today over at Volokh.com has another post out about the Constitutionality of the individual mandate in their continuing discussions there. I would suggest that any who have an interest check out the posts since Wed.

In any case, his point seems to be that there have to be limits on the N&P extension of Commerce Clause jurisdiction. One that CJ Rehnquist set out in Lopez and was furthered in Morrison was the economic/non-economic distinction. And he appears to think that, along the same lines, the activity/non-activity line is likely to be attractive to the conservative majority. After all, there apparently really have been no Supreme Court cases that found the Commerce Clause extending to non-activity. Or, at least according to Judge Hudson and Randy Barnett. And, if the federal government can regulate non-activity through this power, what does it not have power to compel us to do?

So, yes, I think that the young lawyer in early March who couldn't comprehend how this provision could be struck down may have an unpleasant reminder that there is more to life than she sees in her liberal cocoon. With the current judicial make up of the Supreme Court, I think that it is likely that there will be at least four firm votes for Hudson's activity/non-activity distinction.

We shall see.

chickelit said...

Althouse said:
On Monday, I took Josh Marshall (and Nancy Pelosi) to task for resorting to constitutional argument by laughter...

You're a Tyrannosaurus Lex.

Ann Althouse said...

Ron said..."What, no props for Ginger's dancing as well? Tsk, tsk!"

Don't you know the pop culture reference? Google "dance like Fred Astaire" and show some respect for Leo Sayer.

Ann Althouse said...

Play the studio version of "Long Tall Glasses."

"Before you can eat, you gotta dance like Fred Astaire."

Ankur said...

"using their own sense of ridiculousness as a legal argument" is different from "using their own common sense to demonstrate the ridiculousness of a legal argument".

Sophistry can never compete with the societal evolution of the understanding of right and wrong.

Ann Althouse said...

@Beth Thanks!

Dust Bunny Queen said...

Permanently opting out is the only solution I see that respects the rights of the individual and the power of the federal government

What about the solution of leaving it alone.

If you want to buy "insurance" for health care or for your home or your life.....you are free to do so when ever you want.

If you wait until after your home burns down, or if wait until you are ill or you are dead, you are not able to get insurance.

If you can qualify with higher rates because you have some illness or you have a history of auto claims/home claims (and therefore the risk to the insurer is higher) then you pay a penalty in the form of higher premiums because you waited.

Why should there be a permanent opt out of buying insurance. The opt out would be that you waiting until you are ineligible.

The Federal Government should have no power over my decision to buy a product or NOT buy a product.

former law student said...

what would you think of mandate enacted by Congress that requires everybody to purchase a gun?


I'd think it was about time. "The Congress shall have Power ... To provide for organizing, arming, and disciplining, the Militia...." U.S. CONST. art. I, § 8, cls. 1, 16. Requiring the militia to arm itself seems well within its power.

Stephen said...

"I chided liberals and lefties about using their own sense of ridiculousness as a legal argument because "There was a time when people laughed at the idea of gay rights.""

I have some news for you; most people still do laugh (and cringe) at the idea of homosexual "rights" because, for one thing, there is no such thing. There are rights, which apply to all people, including those who engage in homosexual behavior and there are fictions which are characterized as rights such as animal rights. The things that homosexual activists are trying to impose on the rest of us are more special privileges (e.g. special punishment for people who harm them)or affirmative claims against others (e.g. forcing others to rent to them or employ them or to destroy the definition of marriage to accommodate their aberrant behavior).

Marshal said...

FLS:

If we construe the indirect effect of not purchasing on price as creating an interstate nexus sufficient to allow federal regulation there is literally no product or service excluded from federal regulation. You could be required to purchase landscaping service instead of doing it yourself, for example.

So to believe this you have to believe the phrase "among the several states" had zero limiting effect. None. This is not the understanding of anyone until modern times. Since I don't see a constitutional amendment authorizing that change your continued assertion that the federal government has this power is simply wrong.

MadisonMan said...

I think a judge should be required to say, instead of Are you serious?, Surely You can't be serious!.

Comedic gold in the Courtroom.

virgil xenophon said...

Of course John Marshall WOULD interpret the Commerce Clause the way he did--his establishment of the concept of judicial review of Congressional legislation in terms of constitutionality in Marbury v. Madison was made up out of whole cloth from the mind of Marshall himself--like Athena spring fully armed from the forehead of Zeus. (Or Minerva from that of Jupiter if one prefers the Roman version) as it is found nowhere in the Constitution nor in Convention debate. If Marshall had had an ethical bone in his body he would have told Marbury he was in the wrong court--but he didn't for obvious reasons of aggrandizement of Judicial power.

Mark O said...

And so the legal discourse of America has repaired to the odd wisdom of John McEnroe. "You cannot be serious."

It is a poor lawyer, judge, professor who cannot find the rationale behind an opponet's argument. They look stupid and lose cases.

It is not a virtue to say "I don't understand that argument."

jimspice said...

"...liberals who think that the individual mandate to purchase insurance is a great idea..."

No, we thought single payer was a better route to go, but we lost. Individual mandate is all on you. Ask Mitt Romney. And by the way, single payer wouldn't be facing the same types of concerns by the courts, though I'm sure you'd come up with something else.

Mark O said...

"Comedic gold in the Courtroom."

There is a great deal of it on display every day, if you find stupidity and arrogance funny.

chuck b. said...

Naturally, I can't help but wonder if James Taranto and the young, liberal lawyer lady had fabulous hate sex after their disagreement about Obamacare.

chuck b. said...

"Gershwin...homosexuality...James Taranto..."

It's the Theatre of Topicks!

Bruce Hayden said...

marshal: in the aggregate, not buying insurance will affect the price of a service in interstate commerce, which the federal government can constitutionally regulate. Waiting to buy insurance until one is likely to need it most will affect the price of a service in interstate commerce.

I think this has been addressed above, but your argument, taken to the obvious conclusion would mean that nothing was beyond the reach of the Commerce Clause. Every time that we fail to buy a good or service, we affect Interstate Commerce. If I don't buy a new computer this year, that affects Intel's profits, and that is Interstate Commerce.

And that is why I think it entirely plausible that the Supreme Court takes up Judge Hudson's distinction here between activity and non-activity.

Michelle Dulak Thomson said...

Marshal,

If we construe the indirect effect of not purchasing on price as creating an interstate nexus sufficient to allow federal regulation there is literally no product or service excluded from federal regulation. You could be required to purchase landscaping service instead of doing it yourself, for example.

I take it you live in one of those benighted parts of the country where people mow their own lawns. Don't you realize that that's a Job Americans Won't Do?

Seriously, what you've just described is the logic of Wickard. If I grow tomatoes, or cook dinner, or sew clothes, or dust furniture, or trim hedges, or do laundry, or unclog drains, or indeed do anything at all in my home that I could pay someone else to do for me, I am thereby hurting the businesses I didn't pay to do it. This constitutes an effect on commerce, and (as all the businesses in question do involve tools or commodities that cross state borders) on interstate commerce. Therefore there is no Constitutional objection to forbidding me to do any or all of these things.

Prudential objections, sure, and probably even bigger ones that what I'd do to anyone who told me I couldn't cook because, well, the restaurant industry's in bad shape, see, and ...

wv: pinepin. I've gotten to know those intimately since moving up here -- you wouldn't think something that small could plug the drain grate in your driveway, but you must consider quantity.

Ron said...

No....I'll stick to giving you grief over no props to Ginger than giving props to...ahem...Leo Sayer, reference be damned!

Rick said...

Okay. So the professor thinks of Astaire... leads to Fulton... leads to the Commerce Clause... leads back to the issue at hand.

That was delightful. I am spellbound and hope that sometimes my mind can make such connections.

Jay said...

And right on cue:

In an effort to eliminate hidden hazards that caused babies throughout the country to die in their cribs, the nation's top regulator of children's products today passed the toughest safety rules for cribs in history, including a ban on the sale and manufacture of models with sides that drop down.
...
The new rules, which go into effect in about six months, usher in another historic change: It will make it illegal to sell nearly all used cribs since few second-hand cribs will meet the tougher standards. Parents will be allowed to resell cribs that are compliant with the new safety rules, but it will likely take years for many of those to hit the second-hand market.



Isn't that nice?

Under what authority?

How many jobs does that affect?

No matter, the statist left pats themselves on the back and mutters "child safety" and all is right in the world...

garage mahal said...

? No mention of the conservative origin of the individual mandate?

They don't care about the mandate either way. It doesn't matter if Hatch or Grassley supported the mandate in the 90s. It doesn't matter if Romney did when he was governor. They will line up like sheep to vote for all of them.

jerryofva said...

jimspice:

You actually have an opportunity to opt in to a single payer system in Canada. I would say that if you choose that path that you promise never to use the US medical system again. Better yet, move the UK where you can "enjoy" the benefits of single payer healthcare. Just don't get sick.

Future socialism will always succeed where historic and existing socialism has failed

Marshal said...

Michelle,

"I take it you live in one of those benighted parts of the country where people mow their own lawns. Don't you realize that that's a Job Americans Won't Do?"

I currently pay a Muscovite immigrant to mow my yard. But at some point I'm hoping my part of the country becomes sufficienty benighted that I can have my kids do it.

former law student said...


Isn't that nice?

Under what authority?

How many jobs does that affect?


No market for used Lawn Darts, either. Buncha namby pamby wimps.

Methadras said...

"There was a time when people laughed at the idea of gay rights."

We still do, because the concept and notion that sexual orientation is deserving of special status in the form of an exclusive right that is mutable to the whim of the man or woman who so chooses to ingress or egress their way through such a right is preposterous.

The idea or notion that Nancy Pelosi or any other leftard can laugh their way into or out of a constitutional argument that I as a citizen must be forced by mandate, on a federal level, to purchase anything the government tells me to is preposterous. I don't laugh in their face, I spit in their face.

Ann Althouse said...

"No....I'll stick to giving you grief over no props to Ginger than giving props to...ahem...Leo Sayer, reference be damned!"

You want James Taranto to dance like Ginger Rogers?

Meanwhile, chuck b. wants him to have fabulous hate sex with the lawyer lady!

Ralph L said...

Who wouldn't want to have hate sex with Taranto, backwards in high heels?

Better yet, move the UK where you can "enjoy" the benefits of single payer healthcare
Or enlist.

jerryofva said...

Ralph:

But when you enlist at least you get to play guns. Some them very big guns.

Michelle Dulak Thomson said...

Ann,

You want James Taranto to dance like Ginger Rogers?

Well, actually, I'd give a month's pay to see him try. Who wouldn't?

Ron said...

You want James Taranto to dance like Ginger Rogers?

Huh? Sorry...my reference was not to Taranto, but to showing a clip of both Fred and Ginger dancing sans a mention of the other person in the clip...Ginger.

But, hey, if Taranto was half as good as Rogers -- good on him!

Got me?

Ron said...

BTW, Ginger does sing this song in the film (just before the dance you posted) but I don't see it on YouTube at the moment.

skaus said...

My recollection of recent Commerce Clause cases is that there has always been a result oriented Originalist so that the case came out the way the right wing wanted. Magically, the federal government had the power to nullify California's legalization of pot, although the previous two commerce clause cases would have led one to believe this to be beyond federal power.

I know they made a distinction to justify their conclusion, but I don't buy it. The reason was pot.

Saint Croix said...

If Marshall had had an ethical bone in his body he would have told Marbury he was in the wrong court

It's been a decade since I read that case, but wasn't that his holding? Marbury's case was tossed, right?

Saint Croix said...

Magically, the federal government had the power to nullify California's legalization of pot

Dude, I haven't even read the case and I know that's wrong. Medical marijuana is the law of California. I assume the question is whether the federal government can outlaw the drug business. They can.

The health care analogy is whether Congress can pass a law forcing everyone to buy pot.

veni vidi vici said...

In law school I used to refer to Bowers v. Hardwick as "Bow Before Hard Dick".

It seemed like the appropriate thing to do.

I always thought the law was fortunate to have named parties of landmark cases be almost onomatopoeic in a way, like in "Loving v. W. Virginia" about interracial love, and "Brown v. Board of Ed." about brown-skinned folks admission to schools...

Oh, and it makes me wonder...

Seven Machos said...

Jay -- I don't think there is any question the sale of cribs in interstate commerce. After all, they are made in one state and sold in others.

Bad law is not unconstitutional. Please write this on the chalkboard 50 times, then get back to us.

P.S.: If it makes you feel any better, I was just you until I was disabused in law school by a truly great professor.

R.L. Hunter said...

Ann Althouse said...

"You want James Taranto to dance like Ginger Rogers?"

Yes, backwards and in high heels. ;-)

Revenant said...

I assume the question is whether the federal government can outlaw the drug business. They can.

Obviously "they can" in the sense that they are physically capable of it, and "they can" in the sense that the law currently says they can. Similarly, "they can" ban all restrictions on abortion, "they can" force acceptance of gay marriage, and "they can" forbid prayer in state schools.

But in the sense that the Constitution actually says they can? Not so much. That's why we actually needed a Constitutional amendment before Congress was allowed to ban alcohol, back in those dark days before the discovery of emanations and penumbras.

karrde said...

former law student:
Individual mandates are more likely to be found to affect interstate commerce than the Gun-Free School Zone or the Violence Against Women Act...

I agree with you.

Should we hunt for a way to bring those two to the U.S. Supreme Court? What other laws should also be subject to strict interpretation of the Commerce Clause?

what would you think of mandate enacted by Congress that requires everybody to purchase a gun?

On this front, Congress has never spoken.

But historians have documented that during Colonial times, laws requiring every able-bodied male to own a milita-usable firearm were common. Such laws may have persisted in the early Republic on the State and Local levels. (Clayton Cramer did a lot of work on that front...one of his papers is here in PDF form, more information can be found in his books.)

As you said, such laws could be argued as Constitution under the 2nd Amendment.

Revenant said...

My recollection of recent Commerce Clause cases is that there has always been a result oriented Originalist so that the case came out the way the right wing wanted. Magically, the federal government had the power to nullify California's legalization of pot

While I agree that Scalia abandoned all pretense of originalism in the Raich case, he wasn't the deciding vote. It was 6-3, with Thomas, Rehnquist, and O'Connor in the minority and the liberal justices plus Scalia and Kennedy in the majority.

It is also silly to blame "the right" for the continued marijuana prohibition. Last I checked Obama isn't a right-winger, and he's as bad on the issue as Bush was (and as bad as Clinton was before him).

Revenant said...

I take it you live in one of those benighted parts of the country where people mow their own lawns. Don't you realize that that's a Job Americans Won't Do?

I have an American doing my yard work these days. He charges twice what an immigrant would, four times what an *illegal* immigrant would, and he does kind of a shitty job. My urge to support blue-collar American workers is starting to chafe against my urge to pay people what they're worth.

At the very least I'm starting to think that it isn't "jobs Americans won't do", but "jobs Americans won't do competently".

amba said...

This has become a post about the Frederal Gingerment.

Saint Croix said...

But in the sense that the Constitution actually says they can? Not so much.

Congress prints the money. They have wide authority over it. They can unquestionably regulate international commerce and interstate commerce. The Courts have argued that it's "necessary and proper" for Congress to regulate local commerce as well. That kinda makes sense to me. "I grow my pot myself and I just sell to Californians and I always ask for I.D. and my marijuana never ends up in Colorado." I just think that's horseshit. Commerce is commerce. You're trying to make money. If you're a nice pot dealer who just wants to help the poor cancer victim, then give it to her for free. A little charity is the least you can do, you drug-dealing bastard.

I don't think Congress can outlaw marijuana freebies.

Saint Croix said...

Individual mandates are more likely to be found to affect interstate commerce than the Gun-Free School Zone or the Violence Against Women Act...

The problem with regulating non-commerce under the commerce clause is that you're really out of bounds now. I mean, it's the fucking commerce clause.

And how can anyone argue that it's "necessary and proper" for Congress to force people to buy health insurance? Proper, maybe, but necessary? After all, Congress can always tax us and provide that service. The public option is clearly constitutional.

Saint Croix said...

It's "necessary" to force people to engage in commerce in order to regulate interstate commerce? Hardly. Do it another way, a legal way.

Revenant said...

The Courts have argued that it's "necessary and proper" for Congress to regulate local commerce as well.

Similarly, the courts have ruled that the Constitution forbids restrictions on abortion. We're talking about the Constitution, which does not grant Congress that power.

"I grow my pot myself and I just sell to Californians and I always ask for I.D. and my marijuana never ends up in Colorado." I just think that's horseshit.

So sellers are now liable for what buyers do? Apparently those politicians who want to go after gun makers and gun stores for "causing" the handgun homicide rate have a good case, then.

The Constitution gives Congress the power to, if it is worried about interstate transportation of a good, to restrict or ban in interstate transportation of that good. So if you buy weed in California and carry it to Colorado, you can be prosecuted. What it does not say or imply is that Congress can ban people in one state from buying or selling something on the off chance that it might, maybe, someday, end up in another state.

Commerce is commerce

According to Scalia and the left-wing justices, it is "commerce" even if you neither buy nor sell -- if you grow something yourself and use it yourself, that's "commerce", because you *might* have sold it and because you *didn't* buy it. A commercial transaction with only one participant; how quaint.

It'll be funny to see Scalia try to justify a vote against the insurance mandate after the tortured logic he used in Raich.

Revenant said...

The problem with regulating non-commerce under the commerce clause is that you're really out of bounds now. I mean, it's the fucking commerce clause.

But St. Croix, are you saying that if you don't buy health insurance that you'll never pay for any medical treatment ever? I just think that's horseshit. Commerce is commerce. :)

Saint Croix said...

So sellers are now liable for what buyers do?

No. I think an aggregate argument is (arguably) acceptable in a jurisdictional context. But not in a criminal one, of course not.

What it does not say or imply is that Congress can ban people in one state from buying or selling something on the off chance that it might, maybe, someday, end up in another state.

I would say 99% of my commerce is interstate or international. More, probably.

Are you saying that if you don't buy health insurance that you'll never pay for any medical treatment ever?

No. I'm saying wait till I buy something and regulate me then.

Revenant said...

No. I think an aggregate argument is (arguably) acceptable in a jurisdictional context. But not in a criminal one, of course not.

Your justification for Congress having the power to jail a California pot dealer is "the buyer might take the weed to another state". So, yes, you absolutely are saying that sellers should be criminally liable for the actions of buyers.

This is what happens when you start with the legal outcome you want and then reason backwards to find a justification for it. It is why Clarence Thomas can be taken seriously as an originalist and Scalia cannot.

I would say 99% of my commerce is interstate or international. More, probably.

You've got a bad habit of treating your personal experiences like they represent a universal norm. But even if 99% of everyone's commerce was interstate or international, that wouldn't give Congress any Constitutional authority at all to regulate the part that isn't. E.g., sales from a resident of a state, to a resident of a state, of a product produced in that state.

No. I'm saying wait till I buy something and regulate me then.

Ah, I see. So Congress cannot mandate that you buy health insurance, but could, if it desired, forbid you from buying so much as a box of tissues or a loaf of bread until after you've purchased health insurance. It isn't "forcing" you to buy health insurance; it is just exercising its apparently infinite power over what you can buy or sell.

Following the "commerce is commerce" approach that you and the political Left favor directly results in a Congress with no limits on its power. It doesn't put us on a slippery slope to unlimited federal power -- it takes us there in one step. It is impossible to live without what you call "commerce". Granting the government unrestricted power over commerce grants it unrestricted power over your life.

Saint Croix said...

even if 99% of everyone's commerce was interstate or international, that wouldn't give Congress any Constitutional authority at all to regulate the part that isn't.

Things that are obviously local, like legal service or medical service, I think that's a winning argument. But to say drug sales are indisputably local just seems so dubious to me. And it seems kind of bizarre to jump on Scalia (or any right-winger) who is just trying to align the text with what everybody has been saying about the text for 70+ years.

I think stare decisis has some weight and necessary and proper has some weight. Enough for me not to sweat the frickin' 1%, dude. Granting that the percentage on your hippie commune might be different.

I'm much more inclined to fight the good fight against the administrative state. Now that is unconstitutional. And there's not a whole library of precedent stacked against me.

When Congress can't delegate their power to administrative agencies, then I am super-happy.

Congress cannot mandate that you buy health insurance, but could, if it desired, forbid you from buying so much as a box of tissues or a loaf of bread until after you've purchased health insurance.

I think Congress can do a lot of damage with their absolute power to regulate international and interstate commerce, yes.

I do not think Congress can use their legitimate power for illegitimate ends. (For instance, cutting off highway funds to states that refuse to lower their speed limits). I would smack that down. I don't what I would use. Somethin'. 10th Amendment. 9th Amendment. The super-dormant commerce clause.

Revenant said...

Things that are obviously local, like legal service or medical service, I think that's a winning argument.

Or like standing on one state and handing something to another person in the same state in exchange for money. You cannot get more "obviously local" than a face-to-face transaction with cash and goods directly exchanged.

But to say drug sales are indisputably local just seems so dubious to me.

So sticking a seed in the dirt of California and selling the resulting plant, in California, to a person in California is "dubiously local", but treating a man in California using skills acquired in Massachusetts, drugs manufactured in North Carolina, and medical equipment from China is "obviously local". Got it. I can see you're a man of principle.

And it seems kind of bizarre to jump on Scalia (or any right-winger) who is just trying to align the text with what everybody has been saying about the text for 70+ years.

Argument from popularity fallacy. You're wrong, anyway; "everybody" has not been saying that. When the issue reached the Supreme Court two out of three conservative justices agreed your position is a crock of shit, and they weren't even close to being the only two Americans who thought that way.

Be happy, though; you got the support of half the moderates and all four left-wingers. Which makes it all the funnier that you call me the hippie.

I'm much more inclined to fight the good fight against the administrative state. Now that is unconstitutional. And there's not a whole library of precedent stacked against me.

The "administrative state", as you call it, is as old as your left-wing reading of the commerce clause and has as much supporting precedent.

Saint Croix said...

Or like standing on one state and handing something to another person in the same state in exchange for money.

So if I go into Wal-Mart and buy a doll made in China I'm not engaging in international commerce?

Revenant said...

So if I go into Wal-Mart and buy a doll made in China I'm not engaging in international commerce?

No, although presumably Wal-Mart did at some point. You, however, are buying American property from an American with American currency. :)