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Debate on practicality of originalism
David Bernstein, at the Volokh Conspiracy, begins the debate by suggesting originalism is in crisis, citing Scalia's reluctance to attack or narrow Wicker v. Filburn (which began the very broad reading of the commerce power that endures to this day). The reference is to Scalia's joining the majority in the medical marihuana decision. "Originalism becomes a weapon to be pulled out when convenient, not a consistent theory of interpretation. That's culture war politics, not originalism, and Scalia's failure to identify any theory of originalism that justified his opinion in Raich dramatically lowered my estimation of him as a jurist."
Jack Balkin suggests originalism won't fly because what drives national politics is business rather than constitutional theory, and at the national level business has a considerable interest in federal power (so long as it's not directed at business). "And the earnest men and women who created this jurisprudence forgot what I believe to be the central lesson of constitutional interpretation over the country's history: what shapes the structure of positive constitutional law over the long run is not clever arguments and dueling quotations from the framers but larger social and historical forces, which shape political coalitions and produce the sort of jurists who reflect the play of political forces at the time of their confirmation."
David Bernstein responds: "It's no coincidence, in my mind, that Lopez was decided just after the "Republican Revolution" of 1994, and no coincidence that Raich was decided when the Republican Party was no longer paying lip service to a limited federal government" What happens if they do start taking things seriously? " If you appoint very conservative judges who satisfy core Republican constituencies, these Justices are also more likely to vote for a more originalist view of federal power, not least because the impractical pointy-headed intellectual legal wing of the party almost universally believes that at least some aspects of the New Deal expansion of federal power were illegitimate, and this filters into the worldview of the Thomases, Alitos, et al. of the world."
Comments
The Commerce Clause and the Fugitive Slave Act(s) (1792 and 1850) seem to be an interesting historical quandary and a good question to ask the next prospective member of the Supreme court. Did Congress have the power to pass the Fugitive Slave Act(s) under the commerce clause?
Posted by: Rudy DiGiacinto at November 7, 2005 05:12 PM