June 9, 2005

"There are not two principled originalist justices on the Court today, but one."

Here's Randy Barnett's piece on the medical marijuana case. Barnett, who represented the plaintiffs, is especially critical of Justice Scalia:
It comes as no surprise that I admire Justice Thomas's opinion. His opinion now establishes that there are not two principled originalist justices on the Court today, but one. To me, this means that when it comes to enumerated federal powers, there is only one justice who is clearly willing to put the mandate of the Constitution above his or her own views of either policy or what would make a better constitution than the one enacted....

What about Justice Scalia? ... In his concurring opinion in Raich, Justice Scalia appears to put his commitment to majoritarianism over his commitment to originalism. Yet this decision does run counter to his oft-expressed insistence that the people should act to protect their un-enumerated rights in state political processes rather than in federal court. Here this is exactly what the citizens of California and ten other states have done, but Justice Scalia's new stance on the Necessary and Proper Clause leaves citizens little, if any, room to protect their liberty from federal encroachment in the future. It has always seemed significant that he never joined Justice Thomas's originalist concurrences in Lopez and Morrison. Nor does he explain why Justice Thomas's originalist dissent in Raich is historically inaccurate, which would be incumbent on him as an "originalist justice" to do. Instead, Justice Scalia now joins in expanding the reach of the Commerce Clause power beyond even that which the Court had endorsed in Wickard v. Filburn. In oral argument he admitted, "I always used to laugh at Wickard." Now it's Judge Stephen Reinhardt and the Ninth Circuit's turn to laugh.
I defended Scalia here. And I think some of his thinking was revealed at oral argument, which I wrote about here:
Justice Scalia shows some signs of agreeing with the federal government's position that it may regulate an entire market, even trivial parts of the market that seem quite separated from the ordinary trade in the product that gave rise to the motivation to control it:
Justice Antonin Scalia asked [plaintiffs' attorney Randy] Barnett how his argument of a trivial economic effect from medical marijuana would apply to federal laws protecting endangered species. Those laws ban possession of ivory or eagle feathers without regard to whether a person obtained them through interstate commerce.

"Are those laws likewise unconstitutional?'' Scalia asked.

There's more to Barnett's article than the attack on Scalia, and Barnett also has more at Volokh Conspiracy (with a very clever post title).

UPDATE: I'm reminded of this quote from the Washington Post, which I read last fall:
Scalia told [Ken Foskett, the author of "Judging Thomas: The Life and Times of Clarence Thomas,"] that Thomas "doesn't believe in stare decisis, period." Clarifying his remark, Scalia added that "if a constitutional line of authority is wrong, he would say let's get it right. I wouldn't do that."

This isn't a new revelation about the difference between the two Justices.


LDM said...

Yea! Though Antonin hunt'th ducks with Master Dick
alas, now n'er more to States Rights do'th he stick
verily he shew'th environmentalists his latest trick
of recompense thwarting pot's polluting fog so thick

Bruce Hayden said...

Well, so much for the theory that Thomas is a clone of Scalia's. Obviously, he hasn't been for quite a while - some of the liberal Justices vote more in lock step than the two of them do.

But maybe this is why I have always liked Justice Thomas. Not just his originalism, but also his willingness to call things by what they are.

DaveG said...

"Are those laws likewise unconstitutional?" Scalia asked.

I suppose he was asking rhetorically, but my answer would be, "Yes, it does."

Gas-o-leana said...
This comment has been removed by a blog administrator.
Ann Althouse said...

Off topic post deleted.

Random Numbers said...

The Post editorial was written by Douglas Kendal. At the bottom of the article it says: The writer is executive director of Community Rights Counsel, a public interest law firm.

After looking up the activities of the CRC, I'm not surprised that the author is alarmed by the idea that the Constitution trumps stare decis.

neo-neocon said...

Apparently, Thomas has been staking out his own territory and moving away from his previous "joined at the hip" relationship with Scalia for some years now. Here's a 1999 article on the subject.