Scalia, Living in a Glass House:

Scalia on originalism:

"That's the argument of flexibility and it goes something like this: The Constitution is over 200 years old and societies change. It has to change with society, like a living organism, or it will become brittle and break."

"But you would have to be an idiot to believe that," Scalia said. "The Constitution is not a living organism, it is a legal document. It says something and doesn't say other things."

So remind me again, Justice Scalia, how putting people in jail for the noncommercial cultivation and use of marijuana in California by California residents for medical purposes as allowed by California law comes within Congress's power to "regulate commerce ... among the several states." Unless you were an advocate of the "argument of flexibility" and the idea that the Constitution "has to change with society like a living organism," you would have to be an idiot to believe that the Necessary and Proper Clause somehow allows Congress to also regulate noncommercial intrastate activity with no substantial effect on interstate commerce, no?

Stamboulieh (mail):
Now, let me preface this with I am NOT an advocate of drug use, however, how in fact does the federal government have any control over what states want to do (to a point...)? Wouldn't it make more sense for the Feds to legalize Marijuana use, tax it, stop spending money on enforcing a losing "war" on pot, and stop sending people to jail for simple possession charges? Think about how much money it would save.

Just a thought.
2.15.2006 9:08am
Tflan (mail):
2.15.2006 9:12am
Matt Barr (mail) (www):
I think the minority were right in Raich, but am unprepared not to take Mr. Justice Scalia at his word: I consider his opinion concurring in the judgment to have spelled out why he voted the way he did. I don't know why you wouldn't, unless you were really, really mad about the Raich result, in which case who's being the results-oriented one?

I do think there's a clear difference between Scalia's reasoning there, as strenuously as one might disagree with it, and your more insidious Kennedy opinions about nationwide shifts in opinion occurring over 15 years and his tyranny-by-four-out-of-five-experts "persons in every generation can invoke [the Constitution's] principles in their own search for greater freedom" nonsense.
2.15.2006 9:24am
DavidBernstein (mail):
Matt, I take Scalia at his word, I just don't see that his opinion has much of anything to do with the actual text or meaning of the Constitution as the founding generation would have understood it. Instead, he relies on (and expands!) various precedents, many of which were written by the very advocates of living constitutionalism he purports to think are idiots.
2.15.2006 9:27am
Charlie (www):
Umm, let's see now: Farmer grows wheat to feed his own livestock -- It could affect interstate commerce, so it IS interstate commerce, so Congress can regulate it. Ditto personal growth and use of marijuana.

The net result is that any fungible creation is declared to be "interstate commerce" subject to regulation. This means you can't even collect rainwater for your garden becasue somebody, somwhere else (out of state) may want to sell you rainwater.

2.15.2006 9:37am
Defending the Indefensible:
The Necessary and Proper clause comes into effect (like the Supremacy Clause) when effecting a power that is granted to Congress by the Constitution, in this case by way of the Commerce Clause.

However, the Commerce Clause gives Congress power to Regulate, not to Prohibit. Try making the substitution and see if the clause still makes sense:

To prohibit commerce with foreign nations, and among the several states, and with the Indian tribes;>

Schedule I should be facially challenged.
2.15.2006 9:45am
Defending the Indefensible:
Fundamentally the problem in the Raich case is that it was an as-applied challenge which stipulated to the constitutionality of the underlying statute (the CSA).
2.15.2006 9:48am
The NJ Annuitant (mail):
The current reading of the Commerce Clause is the basis for the modern Federal regulatory agency. Justice Scalia is not willing to overturn a reading of the Commerce Clause that is 70 years old in favor of a reading that would ,in essence, be revolutionary; and that would drastically change how our economy is governed. Writing on a blank slate, he would probably not have come out that way.
Charlie -- the Constitution clearly indicates that Congress could prohibit that importation of slaves, presumably under the Commerce Clause, and so it contained the 1808 language in Article 1, section 9, clause 1. The power to regulate includes the power to prohibit. Surely you believe that Congress can ban adulterated food. And I will just bet you beleive that Congress can ban the private ownership of firearms.
2.15.2006 10:09am
'Then they came for the people who couldn't understand hyperbole and I did not speak out-- for I could understand hyperbole.'

.... More seriously, I think it's widely acknowledged that Justice Scalia is imperfect in applying his judicial philosophy. Raich is hardly unique in that regard. Scalia hasn't adopted Thomas' uber-originalist approach to the Establishment Clause, unless I'm mistaken. If anyone were willing to contradict the holding in Bolling v. Sharpe, it might very well be Scalia. I still would doubt he would do so, however. And, of course, all of this comes as little surprise to any legal realist or really anyone besides the most fervent (read: naive) originalists.

Equally clear is Scalia's penchant for exaggeration and rhetoric. I've seen it asked whether he must actually believe that several or his peers on the Supreme Court are "idiots." Rhetoric aside, I think "no" is the patently obvious answer to that question. So, what's to be gained by considering whether Scalia fit his own "definition" of an idiot?
2.15.2006 10:23am
Personally, I think it is funny that Scalia effectively just called his colleague Stephen "Active Liberty" Breyer an idiot.

More broadly, I sometimes get this "end of days" feeling about Scalia, as if he cares less and less about the long-term practical consequences of his rhetoric.
2.15.2006 10:25am
Bernstein's post seems very weak.

Scalia is bound to follow 70 year old Supreme Court precedent. Were he not to do so, I suspect Bernstein (and many others) would castigate him for violating precedent and being an 'activist' judge.

So he applies precedent -- however wrongly decided it was. One cannot use this opinion to argue that he believes originalism dictated this result. Nor can one argue that Scalia is inconsistent in his judicial philosophy if one will not permit him to overrule 70 years of prior Supreme court opinions. No one seems to be offering that option.

The end result is idiotic, just as Bernstein notes. This seems only to prove Scalia's point, that being "flexible" and changing the Constitution so that it might grow like an "organism" leads only to results that can only be mockingly referred to as having been derived from the Constitution's text.

The point is also simply made another way. What is Bernstein's answer to the question: what was the right result here? How does Bernstein interpret the Constitution to resolve this issue? Does he think that this result was incorrect? Why? Does Bernstein believe that changing societal mores affect this particular analysis? How?
2.15.2006 10:27am
Cornellian (mail):
I treat Scalia's comment as an invitation to point out some of the many, many examples when he blithely ignores originalism whenever it doesn't lead to his preferred outcome.

My current favorite: Lujan v. Defenders of Wildlife. Congress enacts a statute stating that "anyone can sue over X." Scalia says this is unconstitutional as it violates Article II's take cause clause (President shall take care that the laws be faithfully executed). And what precedent does he cite for this position? Zilch. What evidence that this was the original understanding of that clause? Zilch.

So explain to us Mr. Justice Scalia how text that on its face that is an obligation on the President is in fact a substantive source of presidential authority and explain to us how you alone are the first person in the history of the United States to realize this. Explain to us how you wrote your entire opinion without bothering even to mention the words "original understanding" let alone considering any evidence of it. Explain to us how in a subsequent case (Akins) you not only repeated this position, but airily declared that federal "bounty hunter" type statutes, which grant similar standing to that in Lujan and which are as old as the Republic, are nevertheless constitutionally suspect because of the Article II argument you pulled out of the air in Lujan.

Scalia isn't an originalist, he's just a hypocrite.
2.15.2006 10:31am
Marcus1 (mail) (www):
Hey, you make a good point. You might have noticed how he also went on to discuss how "Scalia's philosophy" prevents Scalia from just doing whatever he wants. Uh huh...

I just wrote about it here.
2.15.2006 10:36am
Cornellian (mail):
And since everyone else is talking about Raich v. Ashcroft, bonus points for anyone who can find the reference to original understanding in Scalia's opinion.
The answer, of course, is that there is no reference to it, because anyone who has read more than half a dozen Scalia constitutional opinions knows that he talks a good game about original understanding as long as it reaches the outcome he likes, then blithely ignores it whenever he wants a different result.

Personally I don't think ideological purity is the highest virtue of a Supreme Court justice and I can live with a certain amount of fudging around the margins in recognition of the fact that no single philosophy accounts perfectly for everything, but when you're as willing as any other justice on the court to ignore original understanding, you really don't have any business going around pretending to be some kind of champion of that approach to constitutional interpretation.
2.15.2006 10:36am
Hypocrite? I think it's far more defensible to interpret an aspect of Article II in a particular way than to assert that an individual you don't know doesn't actually believe what he espouses. There's a world of difference between being inconsistent and being hypocritical. Would anyone care to actually defend this latter criticism when they suggest it next? Isn't it equally hypocritical of any legal realist (maybe only low legal realists) to castigate Scalia for being occasionally influenced by personal values?

I should say I, like most in the thread, find myself disagreeing with Justice Scalia's premises and conclusions in many cases. I'm all for criticizing those premises and conclusions, I just think it better to be more precise in our aim. [Insert topical Cheney joke here.]
2.15.2006 10:43am
Cornellian (mail):
Scalia is bound to follow 70 year old Supreme Court precedent. Were he not to do so, I suspect Bernstein (and many others) would castigate him for violating precedent and being an 'activist' judge.

So he applies precedent -- however wrongly decided it was. One cannot use this opinion to argue that he believes originalism dictated this result. Nor can one argue that Scalia is inconsistent in his judicial philosophy if one will not permit him to overrule 70 years of prior Supreme court opinions. No one seems to be offering that option.

Oh please, Scalia decided in the majority in Lopez and Morrison which were Rehnquist's roadmap to striking down the legislation in Raich. No precedent compelled the position Scalia took in Raich.
2.15.2006 10:44am
Some Guy (mail):
Dude, right on! Even George Washington grew hemp, man. It's natural and organic. Seriously, did you ever think that maybe we were all just like ants, crawling around on a big beach ball, and hemp was, like, a great big beach ball, and, um. Seriously.

Keep representing and standing up to The Man, man.
2.15.2006 10:45am
Antonin Scalia:
I have a lifetime appointment. I don't care what you idiots think.

2.15.2006 10:50am
Cornellian (mail):
Hypocrite? I think it's far more defensible to interpret an aspect of Article II in a particular way than to assert that an individual you don't know doesn't actually believe what he espouses. There's a world of difference between being inconsistent and being hypocritical.

I have no idea what Scalia really believes about the meaning of Article II but even assuming he really believes his position in Lujan, he's still a hypocrite. He's a hypocrite because he regularly complains that any approach to constitutional interpretation other than original understanding is fundamentally wrong, while regularly departing from original understanding himself. If he simply decided cases like Lujan without accusing other justices of being idiots for departing from original understanding, then he would merely be inconsistent, but not a hypocrite.
2.15.2006 10:51am
Slavery was inherently interstate commerce. How do you think they got the slaves to Kentucky, Tennessee, Missouri, and Kansas? Not to mention 'selling down the river.'
2.15.2006 10:52am
Zach (mail):
I've got to say that describing the case as "putting people in jail for the noncommercial cultivation and use of marijuana in California by California residents for medical purposes as allowed by California law" begs so much of the question as to create a dilemma where others might see none.

How in practice does one tell the difference between noncommercial cultivation and use in California by California residents from interstate commerce and use in California by California residents? Can you test the pot for state of origin?

It seems to me that California set up a regulatory scheme that put an intrastate, noncommercial fig leaf on an enormous illegal interstate market in pot, but never actually separated the intrastate market from the interstate market. I believe it was Scalia who addressed this point directly when he said that the pot was never more than an instant away from interstate commerce. I'll go farther and doubt that it was ever separate from the illegal market at all. Do you happen to have statistics that could back up the claim that the medical marijuana market was intrastate? What fraction of the medical marijuana originated in California? Was there a price gradient between medical marijuana and street marijuana greater than that you would expect from medical marijuana being legal (and thus more desirable to buy)?
2.15.2006 10:54am
Matt Barr (mail) (www):
I don't think the "everbody does it" argument is helpful. I'm sure it's true, just not helpful. Yes, Scalia is standing up for "originalism," in his own word, in the speech, so discussing to what extent he's actually an originalist is interesting and relevant. But the passage reproduced here is about a particular approach that says that the Constitution means what each generation, and each Court, thinks it means.

You may think we get to the same point by invoking the Necessary and Proper Clause to justify a vote in favor of an enforceable federal ban on medical marijuana, but it really isn't the same approach, and isn't the more dangerous of the two. Give me a (faulty) analysis of what the Necessary and Proper Clause means over a lit-class discussion of spatial and more transcendant notions of liberty in my Supreme Court opinions any day.
2.15.2006 10:58am
Zach (mail):
I won't be able to follow up on this thread, but I'll throw another idea out there:

You can objectively show that the market for (say) legal Vicodin obtained by perscription and the market for illegal Vicodin obtained without perscription are distinct. The populations using both are distinct, the process by which the two populations obtain Vicodin are extremely different, there are strong regulatory controls over the legal pathway including reviews of doctors who perscribe more than the average. Finally, there's a big price gradient between the two markets (I understand this anecdotally; I don't have precise knowledge of the price of Vicodin, but assume for the sake of argument that I'm right) So even if there's some leakage, the two markets are distinct.

Could you make a similar argument for California's medical marijuana market? I seem to recall that there were extremely lax rules for who qualified for the license, or who qualified as a supplier (not to mention how the suppliers obtained their marijuana). This extended as far as doctors advertising that they would perscribe marijuana (again, anecdotal recollection). Was the California population of medical marijuana users really distinct from the population of recreational marijuana users in the same way that, say, legal Vicodin users are distinct from illegal Vicodin users? Was this boundary strongly enforced, or was it fuzzy? Did the legal and illegal marijuana honestly come from different sources, or was there a lot of mixing between source and consumer?
2.15.2006 11:10am
Defending the Indefensible:
NJ Annuitant:
The power to regulate includes the power to prohibit. Surely you believe that Congress can ban adulterated food.
Regulating the purity of food (prohibiting adulteration) is not the same thing as prohibiting food itself. Moreover as far as Schedules II and up are concerned, it can reasonably be asserted (though I'm sure some will argue) this is within the regulatory authority of the Commerce Clause. Outright prohibition is not, it never has been, and if it were so, they would never have needed an amendment to prohibit alcohol.
2.15.2006 11:12am
Dilan Esper (mail) (www):
2 points:

1. David chose the commerce clause as one example (and it isn't a bad one), but Scalia ignores original meaning all the time, including in: (a) Bush v. Gore, signing onto an expansive interpretation of equal protection; (b) affirmative action cases, where he has a plausible interpretation of the text but ignores the overwhelming evidence that the equal protection clause was not intended to bar government-imposed assistance to blacks; and (c) the Establishment Clause, where he makes it sound as if there was only one view of separation of church and state (rejecting it) among the framers, rather than a diversity of views on the subject.

Scalia throws his personal views into his decisions all the time. Indeed, he ignores how his personal views shaped his originalism. It's perfectly clear that his choice of originalism resulted in part from his opposition to abortion, because his particular originalism theory (which looks to the time the particular AMENDMENT was adoopted)-- and ONLY his particular originalism theory-- allows him to say there was a tradition of criminalizing abortion, which is not true as a historical statement except for the time right around the Civil War and thereafter. And you can just read his opinions in gay rights cases to know that he has quite a bit against gays and lesbians and revels in insulting them, rather than regretfully contending that they don't have the particular right asserted.

2. My bigger problem with Scalia's statement, however, is one Bernstein only obliquely references. Since when is everyone who disagrees with you an idiot? Especially really smart people who have studied constitutional interpretation for years. At the very least, Scalia's statement is extremely arrogant. More broadly, I would say that it diminishes one's own intellect to assume that everyone else isn't as smart as you are. The smartest folks never say that and never think that.

Scalia thinks he is God's gift to constitutional interpretation, and his fans in the conservative movement push that line. In fact, he's just a person who has a theory and won't let it go no matter how many times the unfair results of that theory are pointed out. Dogmatism isn't the same as intellect.
2.15.2006 11:21am

I don't think we really substantially disagree. My only point in that second post is that "hypocrite," like "idiot," is awfully harsh criticism. I'd agree that there are instances where Justice Scalia doesn't always practice what he preaches (establishmentarian pun intended). But a hypocrite is someone who doesn't even really believe what he preaches to others. He wouldn't be saved from hypcrisy merely be believing in his particular conclusion in Lujan. But if he actually believes in the import of textualism and originalism, however faintheartedly, I don't think it's reasonable to call Justice Scalia a hypocrite.

If we want to call him inconsistent, I agree with other comments in this thread that it is much more valuable to discuss what we'd like 'consistency' to look like.
2.15.2006 11:23am
Fishbane (mail):
Equally clear is Scalia's penchant for exaggeration and rhetoric. [....] So, what's to be gained by considering whether Scalia fit his own "definition" of an idiot?

"I'll take 'Questions that Answer Themselves' for $500, Bob."
2.15.2006 11:37am
Scalia's no idiot.

He's just proven himself to be yet another results-oriented judge.

Seven of the nine justices on the Supreme Court proved themselves results-oriented on the most recent Raich and Oregon decisions. Alito and Roberts are excused only because we don't know how they would have decided on Raich.

The only Justice who stuck to HER principles (big hint there, eh?) on both decisions is the one who just left the Court. You know, the one scorned by legal academics for being so results-oriented and "legislative" in temperament?

Footnote: Clarence Thomas sold his consistency soul for the right to take a potshot at his left-wing colleagues in the Oregon case. Pretty pathetic.
2.15.2006 12:26pm
What I meant by my deleted comment is that it's pretty bush league to launch into a debate against a sound bite.

Justice Scalia's aversion to the living Constitution is a bit more nuanced than the quoted soundbite. In particular, he thinks that judges should take account of stare decisis, and in his A Matter of Interpretation, he fends off Prof. Dworkin's arguments and explains the difference between applying an original principle to new facts and changing the principle itself on the basis of new facts. I would be shocked if it turned out that Prof. Bernstein was not aware of this.

If there's any common thread among the better posts on this blog, it's that the posters usually try harder than the average to be intellectually honest and give opposing arguments their best shot before explaining one's disagreement with them. This post just sets up a strawman for attack.

And, as one of the posters who selectively enables comments, a post like this seems to be an odd choice for that sort of thing. No desire for feedback on an op-ed in the Wall Street Journal, but comment away on my knee-jerk response to a soundbite from Justice Scalia's speech? Odd, to say the least.
2.15.2006 12:42pm
The NJ Annuitant (mail):
DtI -- Interesting that you should raise the prohibition amendment. My understanding of its history is that prohibibtion was enacted as an amendment so that the Representatives and Senators could be on record as voting for it, but that it would not possibly get ratified by 3/4 ths of the State legislatures. Only, it did get ratified. When, after bitter experience, Congress worked up the courage to repeal it, they provided that the repeal amendment was to be ratified by State conventions, not by the State legislatures. This was to enable the State legislators to avoid the need to vote for repeal. The 21st Amendment is the only amendment to be ratified by State conventions rather than by State legislatures.
Anyway, Congress could have banned booze by statute if they had wanted to do so.
2.15.2006 12:42pm
DavidBernstein (mail):
It's the federal government's obligation to prove that California's law is interfering with regulation of interstate commerce, not the other side's obligation to prove it isn't. The government presented no evidence on this issue.
2.15.2006 12:44pm
The NJ Annuitant (mail):
P.S. to the prohibition saga --
Please excuse me while I fix myself a drink.
2.15.2006 12:48pm
Jay C (mail):
Well, MY first reaction on reading the headline: "Scalia calls ideological foes 'idiots'" was "It takes one to know one": and, after reading the rest of the article, I realize that my initial take was quite correct.
Although I know very little about the finer points of Constitutional interpretations; it seems to me to be, if not actual "hypocrisy", something quite close to it for Justice Antonin Scalia to castigate jurists over allowing "personal, political or religious beliefs" to color their decisions, when this very practice has been a hallmark of Scalia's entire tenure on the SC - even though he has usually cloaked his "beliefs" under the all-encompassing rubric of "originalism" (It's also telling that he makes the usual references to "abortion and homosexuality" to make his point). I can think of few SCOTUS Justices in my time who have made so many pointed comments, both in SC decisions/dissents, and in off-bench remarks, which have leaned so heavy on "moral" (i.e., religious) interpretations of the laws; yet he still (seemingly without any sense of irony) insists, to the point of insult, that doing so is somehow improper (for others).
I guess "Ninoism" as a judicial philosophy can be summed as:
"Judges should not personal, political or religious beliefs color their decisions - unless the decision is one I agree with"
2.15.2006 12:50pm
Brett Bellmore (mail):
Ok, NJ, it's been a while since I looked at that history, but my recollection is that Congress only resorted to an amendment after a statute got struck down as unconstitutional. No, they could NOT have banned it by statute at that time, as the New Deal commerce clause sophistry had not yet occured, and commerce in order to be regulated by the federal government still had to actually be both commerce, and interstate.

Indeed, it was quite some time after Prohibition before the federal government actually laid claim to the authority to ban things, rather than just tax them at outrageous levels.
2.15.2006 12:59pm
Scalia Sceptic:
I wonder whether Scalia would have ruled differently if he didn't think there was a possibility that Bush might have nominated him to be Chief Justice.
2.15.2006 12:59pm
Marcus1 (mail) (www):
Let's not forget Kelo amongst the cases where Scalia completely ignored the original meaning of the Constitution for politically expedient purposes.

Which does also raise questions about the selective outrage even of libertarian types such as here on the Conspiracy.

When I find a Libertarian who agrees with the result in Kelo, I'll believe that there's such a thing as an "originalist."
2.15.2006 1:56pm
logicnazi (mail) (www):
Let me preface this by saying I *am* an advocate of drug (or at least MJ) use. However, despite my disappointment with the Raich ruling let me say a few things in defense of Scalia.

It is a pragmatic fact that Willard v. Filburn is not going to be overturned no matter how wrongly decided it was on an originalist view. Given this fact what happens if Scalia votes to overturn every law that violates the original intent of the commerce clause? Suppose that Thomas and (though unlikely) Roberts and Alito always vote with him?

That would mean that there are already 4 votes to overturn any federal regulatory scheme. Now suppose all the other justices have no problem with the commerce clause. This means that just one of them needs to oppose the law for another reason. Making the simplifying assumption that they vote against conservative laws but don't vote so much against liberal laws this ends up in the situation where the liberals get to benefit from the expansive commerce clause power but the conservatives do not, e.g., Raich might be decided in favor of MMJ but gun laws might be upheld.

Of course the supreme court isn't as simple as my example portrays, not quite as partisan, but it illustrates the bind that someone like Scalia finds themselves in. If they know they won't be able to overturn precedent by continuing to vote to overturn it they will end up helping to overturn the laws they feel sympathetic too while the laws they disagree with with be upheld. I'm not saying it is right but it is a hard issue.
2.15.2006 2:05pm
kparker (mail):
David, I quite agree with what you're saying here. However, may I kindly point out that you are not immune from an (accidental, I hope) drink of the koolaid yourself: believe that the Necessary and Proper Clause somehow allows Congress to also regulate noncommercial intrastate activity with no substantial effect on interstate commerce, no? [emphasis added]

The problem is, as we all know, the Constition does not say anything about "effects on" commerce, but only bestows the power to regulate commerce itself. I realize the former is how New Dealers see things, but I wouldn't imagine you to be among them! :-)
2.15.2006 2:11pm
Freder Frederson (mail):
I never liked Scalia's judicial philosophy and usually disagreed with his opinions, but I used to respect him and he used to be coherent and make sense and his decisions were well thought out, consistent, and reasonable. But over the past few years I have begun to wonder if he is losing his mind, especially considering some of his more inappropriate public statements.

He has become like one of those slightly demented older uncles at family gatherings who says and does really inappropriate things, but everyone gives a pass because he is old and confused (kind of like Uncle Leo on Seinfeld). But hey, he doesn't drive anymore so he's not hurting anyone.

But Scalia is still a Supreme Court Justice and that really scares me.
2.15.2006 2:11pm
Tflan (mail):
To accept Raich, you have to accept that Congress has the power to regulate everything that is bought or sold. And, if you throw in some endangered species jurisprudence, the power to regulate everything that may be bought or sold (but currently isn't).

Congress does not have the power to regulate marijuana because it is "bad". The have the power to regulate it because it is, supposedly, a thing that substantially effects interstate commerce.

Wanna know what else effects commerce? My back yard tomato plants. Every plant I plant equates to at least 6 tomoatos I do not buy from the sunbelt. To accept Raich, you must accept the fact than Congress could validly pass a law (with sufficient findings of course) prohibiting home-grown tomatos because they substantially effect the market for interstate tomatos - which, I think we would all agree, they do.
Do you really think when the Framers entertained this clause, they thought it encompassed the power to regulate every growing plant then existing in every state of the Union? If so, you've been hitting the Raich too hard.

Not sure this is on point to the post, but it really bothers me.
2.15.2006 2:19pm

There's an argument about rhetoric and it goes something like this: a statement, like a living thing, can occur in a variety of contexts; words are flexible and can be used to make different points or work for various purposes on various occasions.

But that's nonsense. Scalia's statement is not a living organism that changes over time or with context, it is a recorded statement. It says some things and not others, and it means what it says. Idiot means idiot as the term is commonly used. If Scalia had wanted to exclude certain law professors or his fellow Supreme Court justices from the definition, he could have done so, but he explicitly chose not to.
2.15.2006 2:27pm
Bart (mail):
The argument that the Commerce Clause could not be used by Congress to regulate intra-state economic activity was rejected by the Supremes to justify the Civil Rights laws among other statutes...

Scalia was applying the long standing precedent which he was given.

If Scalia applied the Commerce Clause under its text and original intent, half or more of the federal statutes would be unconstitutional.
2.15.2006 2:39pm
DavidBernstein (mail):
K, I don't believe in the substantial effects test, but I can see how that, unlike Scalia's opinion, has some remotely plausible connection to regulation of commerce among the states.
2.15.2006 2:55pm
Anderson (mail) (www):
Scott Lemieux, btw, reminds us of two words that indicate another respect in which Scalia is a self-defined idiot:

"Eleventh Amendment."
2.15.2006 4:59pm
Defending the Indefensible:
To accept Raich, you must accept the fact than Congress could validly pass a law (with sufficient findings of course) prohibiting home-grown tomatos because they substantially effect the market for interstate tomatos - which, I think we would all agree, they do.
This is clearly true, and it also follows from Wickard. What Raich stands for is that, absent a facial challenge to the right of the Congress to prohibit commerce, and if you concede the constitutionality of such a statute, the Court will accept your concession and presume a statute valid which not only restrained you from growing tomatoes at your home, but made tomatoes per se contraband.

I know Prof. Barnett is still handling this case and that it remains live in the lower courts, but he had a chance here to grasp the ring and he declined to do so.
2.15.2006 5:02pm
anonymouslawyer (mail):
Is it possible that Professor Bernstein is unaware that Justice Scalia has repeatedly stated that his originalism is tempered by stare decisis? In A Matter of Interpretation: Federal Courts and the Law, Justice Scalia expressly states that: "Originalism, like any other theory of interpretation put into practice in an ongoing system of law, must accommodate the doctrine of stare decisis; it cannot remake the world anew. . . . Where originalism will make a difference is not in the rolling back of accepted old principles of constitutional law but in the rejection of usurpatious new ones." Before accusing him of being an "idiot" for his decision in Raich, perhaps Professor Bernstein might have at least taken the time to acknowledge the nuances in Justice Scalia's position.

Indeed, I can't help but note the irony in contrasting Professor Bernstein's post and this blog's own guidance to readers, which states that "we're also hoping that people try to be as calm, reasoned, and substantive as possible. So please, also avoid rants, invective, and substantial and repeated exaggeration."
2.15.2006 7:30pm
DavidBernstein (mail):
Anon, I think my point was that Scalia is calling Scalia an idiot. And Roe has been a precedent for 33 years, so I guess Scalia is giving up on that one, huh?
2.15.2006 7:46pm
anonymouslawyer (mail):
Professor Bernstein, with all due respect, there is a rather obvious difference between Justice Scalia's criticism of the concept of a living constitution as an abstract matter on the one hand, and his version of originalism tempered by stare decisis as applied in individual cases. And as to precedents, United States v. Darby was decided by a unanimous Court in 1941 and Wickard v. Filburn decided by a unanimous Court in 1942, and both decisions were expressly reaffirmed in Lopez and Morrison. Only Justice Thomas suggested that he would revisit these precedents in his concurrence in Lopez, a concurrence which Justice Scalia notably did not join.
2.15.2006 8:12pm
The NJ Annuitant (mail):
Justice Scalia has stated that there is no going back on the New Deal economic precedents . To do so would be a law revolution. It would fundamentally upset the US economy, and he has said that he would not join in that. I do not believe that he is a cynic. I do believe that he is not a radical.
2.15.2006 9:21pm
David M. Nieporent (www):
Footnote: Clarence Thomas sold his consistency soul for the right to take a potshot at his left-wing colleagues in the Oregon case. Pretty pathetic.
No, he didn't. His position was entirely consistent. It's the cases that were different. One involved a constitutional issue, and one didn't.
2.16.2006 1:32am
DavidBernstein (mail):
NJ: Oh, so you mean Scalia believes the Constitution has to change with the times? You'd have to be an idiot to believe that!
2.16.2006 3:15am
H Barton Thomas (mail):
Has originalism required Nino to reach a result that he personally opposes? If so, when?

Not that hypocracy is in short supply....I'd be interested in those who attend Federalist society events to tell me why federalist principles only matter when a democrat is president.
2.16.2006 4:26am
Fede (mail):
Dilan Esper wrote:
My bigger problem with Scalia's statement, however, is one Bernstein only obliquely references. Since when is everyone who disagrees with you an idiot?
It's not 'everyone who disagrees with him', it's a fellow justice with a diametrically opposed judicial philosophy who just wrote a f*ck-you response book to Scalia's own that put everything, most particularly the text of the law itself, subordinate to his own whims as to what constitutes 'social justice'. It's clear these remarks are targeted at Breyer and his ilk, and it's absolutely clear from Active Liberty that everything Scalia's being attacked for here would be allowed under that alternative philosophy. His failings are virtues in Breyer's world.

You can criticize Scalia for these remarks, but you can't side against him unless you actually like the overbroad commerce clause stuff, Kelo, and all the rest -- because that's what we're stuck with, and worse, if we get any more liberal (not in the left-right sense) with the text of the Constitution.

I can't really fault him for some of these exceptions, anyway -- there's the stare decisis stuff already well-covered by the other commenters, of course, and the law has plenty of holes and ambiguities that it's his job to sort out. There's also the stupid pitfall of extreme textualism: some lawmaker will inevitably mistakenly write a hole in the whole document, and a super-literalist would be forced to mandate tyranny, lawlessness, or worse. There was a case some time back where some smarty proved that Ohio hadn't, technically, joined the union, and presented a legally correct argument from there that the entire country should be dissolved. He was laughed out of court, of course, though I don't think anyone would call that judge activist.

That's not Scalia's point, though -- what he said was that you'd have to be an idiot to believe that the Constitution was anything but a document, a text of law. You can argue what specific parts of that text mean -- 'interstate commerce', for example -- but to assert that the text itself changes over time (or, more specifically, on a judge's whim) is a recipe for tyranny under the Court. What do its guarantees mean if they can simply be dissolved by the court? What do its checks on government power mean if some unelected officials can simply rewrite those checks at will? And don't give me that 'that's not what's being argued!' bull, regular VC readers (and many of the examples given here) can show where the law has been reinterpreted to cancel its restrictions on government power.
2.16.2006 10:56am
David M. Nieporent (www):
Has originalism required Nino to reach a result that he personally opposes? If so, when?
Flag burning. Caps on punitive damages. Given his attitude towards drug use, probably Kyllo.
2.16.2006 1:28pm
The NJ Annuitant (mail):
DB -- I think that Jusstice Scalia will not overturn precendent when it has taken deep root, and has become part of the fabric of American life. In that, he is , quite conservative.
If this be idiocy, make the most of it.
2.16.2006 7:01pm
Marcus1 (mail) (www):

You mention Kelo as an example of non-originalism by the court, but if you read the text of the Fifth Amendment, you will see that it does not create a public use requirement.

This is the major problem with originalism, not just as practiced by Scalia, but as practiced by virtually all alleged originalists. Originalist crusades are extremely selective. I believe most conservative scholars know that the 5th amendment does not create a "public use requirement." I believe this because they universally ignore the question. Never has such an obvious argument (or observation, really) been so utterly and completely ignored.

If it were in my power, I would challenge any professor here to provide a persuasive explanation for the textual or originalist basis of the public use requirement. Has anyone here, or does anyone know of an explanation for why, if our constitution has a "public use requirement," the text does not say so? I've raised the question in many forums, and I haven't gotten an answer yet. Just a couple of sham arguments which are very easily explained.

It's not so much that the theory is incorrect, thus, but that all attempts to use it are characterized by a great deal of corruption. I guess in that way it's a little bit like Marxism...
2.17.2006 2:31am