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Balkin on Originalism:

Check out Jack Balkin's very interesting post on the implausibility of the Supreme Court adopting anything remotely resembling consistent originalism with regard to federalism (or anything else) any time in the near future. I agree with much of what Jack says, with two caveats: (1) if the Republican Party had shown a continued interest in federalism, I think Raich might have come out the other way. 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; (2) dominant political coalitions often win the Court for one point of view, only to find that this victory coincidentally came with some additional baggage. As Kevin McMahon has shown, the New Deal coalition's goal with regard to the Supreme Court was to eliminate virtually all restrictions on economic regulation at the federal, state, and local level. FDR achieved this by mainly appointing Justices from the demographic group least likely to object to regulation: northeastern liberals. FDR and many of his supporters had no particular interest in civil rights, but it turns out that northeastern liberals coincidentally also happened to be the demographic most sympathetic to civil rights. [Ilya Somin and I have shown that, along the same lines the Northern Republicans appointed by T.R. and Taft turned out to be unexpectedly at least mildly sympathetic to civil rights in the 1910s.] Similarly, the heart of the conservative coalition right now isn't especially interested in limiting federal power. But it's also true that the Justices most committed to the main conservative agenda are also interested in federalism: Scalia (at least until Raich), Thomas, and Rehnquist have been the most consistent votes in favor of the conservative agenda, but also for limiting federal power. O'Connor and Kennedy were less consistent on both matrices. 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. [And an additional caveat: unlike Jack, I'm not persuaded that Big Business, as a rule, favors Republicans more than Democrats; the core of the Republican Party seems to me to be evangelical Christians, military folk, and the Chamber of Commerce.]

But am I optimistic that the "federalism revolution" will be revived? No, at least not until the Republican Party signifies that it would provide some political support/cover for such a move.

Related Posts (on one page):

  1. Balkin on Originalism:
  2. Originalism in Crisis:
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