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A federalism chicken comes home to roost - The Commerce Clause and Partial Birth Abortion:

It is interesting that, as Orin Kerr notes in his recent post on the partial birth abortion case, liberal Supreme Court justices Ruth Bader Ginsburg and John Paul Stevens are suggesting that the 2003 federal law banning partial birth abortions may fall outside the bounds of Congress' power under the Commerce Clause. This is an example of the ways in which broad interpretations of the Commerce Clause - long supported by most liberal jurists and legal scholars - can be used to justify federal laws that liberals abhor.

It is particularly ironic that Justice Stevens would ask "how could the Commerce Clause justify application [of the partial birth abortion ban] to a free clinic? I don't understand." The text of the Commerce Clause gives Congress the power to regulate "commerce . . . among the several states." Free abortions provided to residents of the same state where the clinic is located are neither commercial nor interstate. So the text of the Constitution provides at least some support for Justice Stevens' skepticism.

Unfortunately, Stevens' own previous jurisprudence does not. Stevens is the author the Court's majority opinion in Gonzalez v. Raich, which held that the Commerce Clause gives Congress virtually unlimited power to regulate "economic activity," broadly defined to include any action that involves the "production, consumption, or distribution of commodities." Since abortion (whether free or not) necessarily involves the use ("consumption") of medical supplies, it clearly falls within Stevens' definition of economic activity in Raich. Indeed, Raich itself held that the mere possession of marijuana for medical purposes is "economic activity," even in a case where the marijuana st issue (much like the hypothetical abortion in Stevens' question) had been provided to the users for free. Moreover, even if free abortion clinics are not engaged in "economic activity," they could still be regulated under Raich so long as Congress could "rationally" suppose that such regulation of "noneconomic" activity was need as part of a broader regulatory program (in this case the policy of banning partial birth abortions by paid providers). For readers unversed in in the high-falutin' terminology of constitutional law, the word "rationally" in this context basically means that there is some theoretically conceivable argument to support Congress' reasoning, even if that argument is almost certainly wrong.

There are other ways in which the federal partial birth ban may be justified under Raich's interpretation of the Commerce Clause. I provide a more detailed analysis of the ways in which that case largely gutted limits on federal Commerce Clause authority in this article.

In the same piece, I also noted that the federal partial birth ban is just one of many recent examples of conservatives using broad interpretations of federal power to advance their policy objectives. The article also cites several liberal legal scholars and commentators (such as Harvard Law School Professor David Barron, pundit Franklin Foer, and some gay rights advocates) who have begun to rethink the desirability of backing virtually unlimited federal power as a result of these developments.

The Democrats' recapture of Congress in the recent election may put a damper on such rethinking. But given the narrowness of the new Democratic majorities, the moderate to conservative nature of many of the new Democratic congressmen and senators, and the possibility that the Republicans will recoup their losses in 2008 or 2010, it may not totally end it. Unlimited federal power can gore liberal Democratic oxen as readily as conservative Republican ones.

UPDATE: To avoid confusion, I should note that Solicitor General Paul Clement was right when he responded to Justice Ginsburg's questioning by noting that the federalism issue had not been raised by the parties to the case. Nor did it factor into the lower court's decision. Thus, it would be understandable if the Court ignored federalism issues in reaching its decision. However, if (as is highly likely) the Court upholds the partial birth ban against challenges based on privacy rights, the federalism issue could well come up in future litigation.

Related Posts (on one page):

  1. A federalism chicken comes home to roost - The Commerce Clause and Partial Birth Abortion:
  2. Federalism and the Abortion Case:
PersonFromPorlock:
The plain meaning of the Constitution is to give Congress power to regulate the commerce itself, not other things which may affect it. Otherwise, the whole idea of limited government is dead.

This is so transparently true that the only complications arise from judges trying to assert absolute federal power in cases they favor while denying it in others -- as witness Justice Steven's 'perplexity'. This is corruption, of course.
11.12.2006 7:38am
Justin (mail):
Oh, come on. This cheap shot assumes that Morrison and Lopez was explicitly overruled by Raich, which it wasn't, nor did Stevens concur and say it was. It's a question that needed to be asked, and Jusatice Stevens asked that question. Abortions, unlike Wheat and Marijuana, are not product or commodities.
11.12.2006 9:51am
Bored Lawyer:
Abortions, unlike Wheat and Marijuana, are not product or commodities.

Oh, is the Commerce Clause now limited to commodities? Guess that means Congress lacks the power to regulate the service part of our economy. Or labor, for that matter, which is basically a service.

Be careful how you reason, or you may end up striking a great deal of federal law from the last 70 years or so.
11.12.2006 10:15am
Adam Scales (mail):
Justin,

I'd really like to see you define "commodities" in a way that excludes abortion,but includes, for example, the provision of Medicare benefits to the elderly. Lopez is plainly a dead letter after Raich; good enough for one delivery only, but no further. Morrison is more complicated, I think.

In fact, there is an historical-etymological argument that "commerce" in the late 18th century actually WAS understood to refer tangible, physical commodities. However, two centuries of jurisprudence and linguistic evolution have left that argument unavailable to all but the originalists. And, I don't think an originalist is going to find your reference to wheat fields all that persuasive.
11.12.2006 10:17am
Mark Field (mail):
I think Stevens was taking rhetorical shots at Thomas, et al., not signaling a shift in his own judicial philosophy. He was simply pointing out that Thomas (at least) should, given his stated views, strike down this law.

If Stevens does issue an opinion in which he favors voiding the law on commerce clause grounds, I'll freely concede I was wrong.
11.12.2006 10:29am
3L 5000:
I tend to agree with Mark Field. I don't think Thomas and Ginsburg were making affrimative commerce clause arguments as much as pointing out the frequent contradictions in the "federalist" judges arguments, not to mention it was probably a shot a Clement himself. Even if the commerce clause issue had been briefed, does anyone seriously believe that Ginsburg or Stevens would strike down a federal partial birth abortion ban on those grounds? It was a couple of questions during oral arguments, it wasn't hypocritical nor did it expose any shift in thinking on these justices part. Don't read too much into it.
11.12.2006 11:26am
Q the Enchanter (mail) (www):
Maybe I'm not remembering correctly, but doesn't Raich require a showing that the aggregate impact of the practice in issue poses a threat to the national market? What sort of threat does PBA create in this case? The market in medical supplies? And is there any concern about the use of the relevant supplies by clinics in illicit ways (this was relevant to the Court's finding in Raich, right?)?

These aren't rhetorical questions. I honestly don't know the answer, and just thought they might be apt.
11.12.2006 11:51am
byomtov (mail):
the federal partial birth ban is just one of many recent examples of conservatives using broad interpretations of federal power to advance their policy objectives.

I commend you for recognizing this. I look forward to one or more of these examples being used as the basis for an equally critical post about Thomas or Scalia.
11.12.2006 11:52am
Q the Enchanter (mail) (www):
Oo0ps, of course not a showing of the threat but of the rational basis for the finding that such a threat exists.
11.12.2006 11:52am
Daniel Chapman (mail):
You might try reading all the stuff that was written here about Raich if you've forgotten.

This reminds me of a post by Jonah Goldberg over at the Corner about the nature of hypocracy. You can't be a hypocrite if you don't have principles. We fully expect Justices Breyer and Ginsburg to vote their policy preferences into constitutional law because they've really never claimed to do anything else. Scalia, on the other hand, is held to a higher standard because his own constitutional theories create the possibility of being objectively WRONG.
11.12.2006 12:06pm
Siona Sthrunch (mail):
Somin incorrectly states that "Raich itself held that the mere possession of marijuana for medical purposes is economic activity."

Raich held that mere possession of marijuana affected interstate commerce so that it could be regulated under the necessary and proper clause. It did not hold that such possession was itself economic activity or was itself part of interstate commerce.
11.12.2006 12:30pm
Cornellian (mail):
We fully expect Justices Breyer and Ginsburg to vote their policy preferences into constitutional law because they've really never claimed to do anything else. Scalia, on the other hand, is held to a higher standard because his own constitutional theories create the possibility of being objectively WRONG.

If you buy Scalia's claim that he's a devoted originalist who never votes his policy preferences into law, you might want to read Lujan v Defenders of Wildlife, Lucas v South Carolina Coastal Council or Doyle v Bell Helicopter, just to cite a few examples. He's as "activist" as any judge on the court.
11.12.2006 12:30pm
Daniel Chapman (mail):
Thank you for proving my point, Cornellian.
11.12.2006 12:37pm
egn (mail):
Daniel --

Even accepting the premise that Breyer and Ginsburg openly "vote their policy preferences into law," I don't see how claiming to have a judicial philosophy and then proceeding to do the same thing is in any way superior or more admirable. I think that was part of Cornellian's point. You seem to think that the mere claim of being a devoted originalist accomplishes something. What?
11.12.2006 12:59pm
Jon Rowe (mail) (www):

He was simply pointing out that Thomas (at least) should, given his stated views, strike down this law.


This will be interesting. Thomas should strike down the Act b/n the original meaning of the CC. I hope he does. Even with the new conservative members on the court, a Thomas vote to strike down the act could give the court a plurality victory w/o holding that the act in question falls under the "right to abortion/privacy" Griswold/Roe line of cases.

If Thomas doesn't strike down this act and upholds Wickard/Raich precedent, then he will look like somewhat of a hypocrit for following precedent in which he disagrees. Scalia has already shown his willingess to follow precedent that is indefensible on originalist grounds; Thomas has held his ground so far.

This will be interesting. Either way, it seems that Thomas is in far greater a bind than Stevens, Ginsburg et al. They don't need the CC to strike down this Act. They already have their Griswold/Roe/Casey precedent from which to draw.
11.12.2006 1:01pm
Erasmus (mail):
Not to mention that, ultimately, choosing to be an originalist is a policy choice.
11.12.2006 1:02pm
Daniel Chapman (mail):
It provides a possibility that the Supreme Court can be wrong. That is something.
11.12.2006 1:03pm
egn (mail):
That's a straw man, and a bizarre one: Brennan, Stevens, et al, have claimed that the Supreme Court is wrong in countless dissents. Unless, of course, "wrong" happens to mean "not unfailingly originalist," in which case yes.

Of course, the entire argument depends on the liberal wing of the court being 100% result-oriented hacks, which is simply untrue.
11.12.2006 1:19pm
Mr L:
Not to mention that, ultimately, choosing to be an originalist is a policy choice.

That's sophistry. It's only a policy 'choice' in the sense that it's what the court is charged with doing (i.e. upholding the Constitution, the document, as the highest law of the land) and that one chooses not to compromise that goal in hopes of some personally preferred result. It's like equating the guilty and innocent on the grounds that committing and not committing a crime are both choices, as well.

And I'm amazed at all the Scalia hate -- yeah, he's inconsistent from time to time, everybody is. Call him on it and be done with it; just don't pretend that he's as bad as, say, Breyer, whose Active Liberty argument was that such exceptions were not only acceptable, but ideal if they happened to facilitate his preferred policy outcomes. To go back to the criminal analogy, it's the difference between someone who respects the law but occassionally commits a crime and a sociopath who only respects the law when it suits him.
11.12.2006 1:32pm
Jeremy T:

Thomas should strike down the Act b/n the original meaning of the CC. I hope he does.


The federalism issue was not raised. The challenges to the law are essentially vagueness and overbreadth challenges. Further, the act itself cannot be facially unconstitutional even under a conservative reading of the commerce clause, because the act basically pins itself only to the extent of the commerce clause. Whatever your thoughts about what that extent truly is, the fact that the act explicitly designates its reach to that extent makes it immune from a facial challenge on commerce clause grounds.

Now if the act is later used to prosecute a doctor who performs a free abortion using tools he made by himself at home, then an as-applied challenge is possible. But that scenario is not presented by this case.

So to those of you who think Thomas, Scalia, et al. are hypocrites if they don't strike down the law on commerce clause grounds, you really should go read the briefs. You'll realize then that this case provides no real opportunity for even the most results-oriented justice to strike down the law on commerce clause grounds.
11.12.2006 1:34pm
jrose:
I don't see how this stuff about federalism has any relevance to this facial challenge. Given that the law reads ...

Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both.

... how can it be facially unconstitutional under the Commerce Clause since it explicitly limits itself to only cases in which commerce is affected.
11.12.2006 1:38pm
Marcus1 (mail) (www):

To go back to the criminal analogy, it's the difference between someone who respects the law but occassionally commits a crime and a sociopath who only respects the law when it suits him.



Funny, I'd say it's the difference between someone who is honest about ambiguity in the law, and somebody who denies it while actively exploiting it.
11.12.2006 1:40pm
Bobbie (mail):
Mr. L, what's sophistry is the question-begging argument that we ought to use originalism because we ought to apply what the words of the document meant at the founding. No one -- including Scalia -- has provided a satisfactory reason for why we ought to do that. Indeed, many conservatives don't even seem to think it requires argument because they don't see that it's question begging. For them, the words can only mean what the founders meant. Period. But why? Once they start to try to answer that question beyond mere catch phrases, I think they see that it really is a difficult and confusing question.

I don’t think you’ll find many academic philosophers who even take Originalism seriously because proponents of originalism don’t seem to either understand the criticisms that their theory faces or even bother to try to address the criticisms. Much like lawyers make poor economists, lawyers also make poor philosophers, mostly because many are unwilling to do the necessary groundwork to understand the problems they’re facing.
11.12.2006 1:50pm
Ilya Somin:
Maybe I'm not remembering correctly, but doesn't Raich require a showing that the aggregate impact of the practice in issue poses a threat to the national market? What sort of threat does PBA create in this case? The market in medical supplies? And is there any concern about the use of the relevant supplies by clinics in illicit ways (this was relevant to the Court's finding in Raich, right?)?

Unfortunately, Raich does not require any such showing. For more detail, see my article on Raich that I linked in the post.
11.12.2006 2:12pm
Ilya Somin:
I think Stevens was taking rhetorical shots at Thomas, et al., not signaling a shift in his own judicial philosophy. He was simply pointing out that Thomas (at least) should, given his stated views, strike down this law.

-I don't see any evidence to support such a conjecture (especially since the Commerce Clause issue wasn't even raised by the parties to the case, and Thomas has a lonstanding practice of not deciding cases on the basis of issues not raised by the parties.
11.12.2006 2:13pm
Ilya Somin:
I look forward to one or more of these examples being used as the basis for an equally critical post about Thomas or Scalia.

I criticize Scalia's opinion in Raich in great detail in my article that I linked in the post. Thomas dissented in Raich and also argued in his opinion in Gonzalez v. Oregon that the Bush Administration's actions in that case were probably unconstitutional (though he did not vote on this basis because the issue had not been raised by the parties, who had conceded the validity of the Raich precedent). Thomas, I think, has been fairly consistent of federalism issues. Scalia, not so much.
11.12.2006 2:16pm
Elliot Reed:
There are also some pretty serious technical/theoretical problems with original meaning originalism that I've never seen any attempt to address (though of course there could be a vast literature on this that I'm unaware of). The problem that most bothers me is the difficulty of distinguishing between what philosophers call sense and reference, or intension and extension.

The basic problem is that it's very difficult to determine when the meaning of a term has changed and when people's beliefs about the facts have changed. For example, 19th-century physicists used "electron" one way; contemporary physicists use it another way. If all you have are historical texts, how do you figure out whether physicists have changed their minds about the facts about electrons or if what "electron" means has changed, or both in some combination? Some philosophers argue that this isn't even a meaningful distinction as a matter of principle, but even assuming it is I've seen no principled theory of how to draw the distinction in historical analysis. Sometimes this is obvious, as when "gay" changes from meaning "bright and happy" to meaning "homosexual," but it's not obvious in the general case.

To make it more concrete, consider the morally laden term "equal protection." If we're not going to be moral relativists of the crudest sort, we have to take seriously the possibility that people in the 19th century were simply wrong about what states of affairs constitute equal protection even given the meaning of "equal protection" that the term had at the time. That is, there's a possibility that they used the phrase with one meaning but applied it incorrectly becuase they had incorrect beliefs about the relevant moral facts. To take a purely hypothetical example, many Americans might have incorrectly believed that black people are subhuman. And the same can be said for other morally laden terms like "cruel and unusual," and even for non-moral terms like "commerce."

In practice, what's called original-meaning originalism often seems to mean original-denotation originalism. But as a theory origininal-denotation originalism is much less defensible than original-meaning originalism.
11.12.2006 2:20pm
Mike BUSL07 (mail) (www):

... how can it be facially unconstitutional under the Commerce Clause since it explicitly limits itself to only cases in which commerce is affected.

I guess that depends on how widely one defines interstate commerce. The words, "while engaged in interstate commerce" are not talismanic, as they statute may contemplate a broader application than what the court believs is constitutional.
11.12.2006 2:31pm
Marcus1 (mail) (www):
Elliot,

Exactly. Originalists say "original meaning," but they mean "original application." The problem being that the argument for "original application" doesn't make any sense.

Generally, Justin seems to have a point though. Say what you will, but the tie between drugs and interstate commerce is pretty clear. The tie between abortion and commerce, on the other hand, seems about as attenuated as you could possibly get. It does seem a bit silly, I'd agree, to start drawing lines at this point, but you could definitely argue that abortions are further than the court has allowed before.

"We've allowed a lot in the name of interstate commerce in the past, but banning a type of medical procedure just goes too far into a traditionally state-regulated arena. In fact, the marijuana law would probably have gone too far as well, but we were swayed by the powerful federal interest in controlling the drug trade."
11.12.2006 2:54pm
godfodder (mail):
Have we reached the conclusion that the more liberal justices are free to invoke or ignore the Commerce Clause whenever it suits them, in their quest to make a better world for us all? And the reason for our acceptance of this is... what? Because the liberal justices never claimed to be consistent, or to be restrained by inconvenient principles?

And the conservative justices are "hypocrites" because they are only sometimes restrained by principle?

Seems like an awkward place to end up, no?
11.12.2006 2:55pm
Cornellian (mail):
The basic problem is that it's very difficult to determine when the meaning of a term has changed and when people's beliefs about the facts have changed.

Exactly. Originalists say "original meaning," but they mean "original application."

Suppose Congress in 1800 enacts a statute prohibiting "unsafe substances" in federal workplaces. Supposing someone brings suit today for a declaration that asbestos is an unsafe substance and a injunction that it be removed (or that employees not be required to work in that workplace). Is a court today required to dismiss the suit on the grounds that asbestos would have been considered safe in 1800? Suppose a court had ruled in 1800 that asbestos was safe. Is the court today bound by that precedent? Why not? Is the rational basis test for discrimination under the 14th Amendment not at least in part fact based? Why isn't it possible to reach a different conclusion today on the application of the 14th Amendment than would have been the conclusion on the day after the 14th Amendment was enacted if the evidence establishes a different set of facts?

As the earlier poster points out, some people claim to have an original meaning approach to the Constitution, when what they really have is an original outcome approach and that makes no sense at all, and isn't at all consistent with original understanding.
11.12.2006 3:06pm
ReaderY:
The issue was never raised by the plaintiffs. The Court doesn't ordinarily entertain challenges not directly raised by the parties.

One can make an argument -- rightly or wrongly -- that there are still some limits to the Commerce Clause after Raich and that because abortion is a service, not a product, and moreover, unlike labor in a factory or a restaurant, a service related to goods shipping or travellers travelling in the stream of interstate commerce, that it is outside the scope of interstate commerce. One can do this without being either corrupt or hypocritical.

Also, Medicare involves the Spending Clause, not the Commerce Clause.

I am personally opposed to abortion, but the Commerce Clause argument strikes me as a serious and potentially viable argument, possibly limited to cases like free abortions.

It's worth noting that during the 1960s and 1970s Congress and the Court assumed that education was not commerce. This is why Title IX is done under the spending clause and applies only to schools receiving federal funds. It's also why the Supreme Court decided Runyan v. McCrary (427 U.S. 160, 1976), holding that Congress could prohibit racial discrimination by private schools, was decided under the 13th Amendment rather than the Commerce Clause. It was simply assumed at that time that the Commerce Clause didn't apply.
11.12.2006 3:19pm
Jay Myers:
Bobbie:

Mr. L, what's sophistry is the question-begging argument that we ought to use originalism because we ought to apply what the words of the document meant at the founding. No one -- including Scalia -- has provided a satisfactory reason for why we ought to do that.

I've got one. SCOTUS has repeatedly said that it is beyond their purview to determine legislative intent. The law means what it says. But if we don't attempt to go by what that use of language originally meant then we run into difficulties like the following:

The constitution states "The United States shall guarantee to every state in this union a republican form of government". What if Bush reads that and decides that it means that he is supposed to call up the national guard and replace all Democratic state officeholders with Republican equivalents?
We're barred from considering intent and if we look at contemporary definitions we come up with this:

noun: a tributary of the Kansas River that flows from eastern Colorado eastward through Nebraska and Kansas
noun: a member of the Republican Party
noun: an advocate of a republic (usually in opposition to a monarchy)
adjective: relating to or belonging to the Republican Party (Example: "A Republican senator")
adjective: having the supreme power lying in the body of citizens entitled to vote for officers and representatives responsible to them or characteristic of such government

Looking at those definitions, on what grounds could we prioritize the "representative government" definition above the "Republican party" definition? If you look at the language usage of contemporary Americans, the "representative government" definition is far less common and based on Supreme Court precedent, that is the standard they have traditionally used for choosing what definition to use. Nix v. Hedden, 149 U.S. 304 (1893) and Robertson v. Salomon, 130 U. S. 412 (1889)

Right now you are all saying, "But of course the founders meant a representative government when they said republican. The Republican party hadn't even been founded!" Congratulations, you have just taken an originalist approach and reached the correct conclusion.

I don’t think you’ll find many academic philosophers who even take Originalism seriously

On the contrary, I believe that strict textual analysis is the standard approach in philosophy. I can't imagine any philosopher attempting to understand a historical text's meaning by utilizing modern definitions of the vocabulary. If you want something that isn't taken seriously by most philosophers, try either Straussian close reading for esoteric meaning or hermeneutics.
11.12.2006 3:21pm
David M. Nieporent (www):
JRose:
He was simply pointing out that Thomas (at least) should, given his stated views, strike down this law.

If Thomas doesn't strike down this act and upholds Wickard/Raich precedent, then he will look like somewhat of a hypocrit for following precedent in which he disagrees.
This is wrong, because Thomas has been very clear over the years in not striking laws down on such grounds unless invited to by the litigants.


Erasmus:
Not to mention that, ultimately, choosing to be an originalist is a policy choice.
No. Originalism is not a "policy." It's an interpretive method. Depending on circumstances, it can lead to upholding an anti-abortion law, or overturning an anti-abortion law.


... how can it be facially unconstitutional under the Commerce Clause since it explicitly limits itself to only cases in which commerce is affected.
Because the Commerce Clause doesn't say anything about "affected."
11.12.2006 3:27pm
Jeremy T:
Mike BUSL07,

You're right that the language in the statute is not talismanic, as language in a state long-arm statute might be (think: ""to the extent permitted by due process"). But it's hard to see how anyone can make a reasonable facial challenge to the law on commerce clause grounds, given the statutory language.

The infanticide enthusiasts will just have to wait for some prosecutions before going after the law on commerce clause grounds with an as-applied challenge.
11.12.2006 3:30pm
Cornellian (mail):
I don’t think you’ll find many academic philosophers who even take Originalism seriously

On the contrary, I believe that strict textual analysis is the standard approach in philosophy.


I don't know what an "academic philosopher" is but if it refers to philosophy professors interested in the philosophy of law then Originalism (and there are various meanings of that term) is indeed taken seriously.

"Strict textual analysis" isn't originalism. The two overlap at points but they're by no means identical.
11.12.2006 3:31pm
ReaderY:
Cornellian,

The difference between your example of "workplace safety" (itself anachronistic, since Congress couldn't regulate it at the time) and the conception of Due Process exemplified by the Supreme Court's Dred Scott and Lochner v. New York decisions is there is a fairly objective basis for determining if a substance is unsafe or not, while questions of morality and public policy implicated by questions like abortion lack a similar basis in objective fact so far as a scientific-type perspective is concerned.

It seems obvious to us to day that there really wasn't any objective basis for claiming that the concept that the right to own a slave or work ones workers however long one wishes was inherent in the tide of of history or the idea of human progress, or the notion of "due process", as judges claimed at the time. It's obvious to us today thatt both issues involved controversies issues on which Americans disagreed, and there happened to be a majority on the Supreme Court on one side of the issue, who happened to be so single-minded in their views that they weren't willing to see the other side's reasons. A claim that history was on their side or that these views are inherent in the notion of human progress is mere rhetorical flourish, evidence of judicial thick-headedness, self-delusion, and unwillingness to see reason.

There's no evidence that the next century's historians will regard Justices who decorate their personal views with similar flourishes any more kindly than we today regard last century's.
11.12.2006 3:34pm
Dave Hardy (mail) (www):
Suppose Congress in 1800 enacts a statute prohibiting "unsafe substances" in federal workplaces. Supposing someone brings suit today for a declaration that asbestos is an unsafe substance and a injunction that it be removed (or that employees not be required to work in that workplace). Is a court today required to dismiss the suit on the grounds that asbestos would have been considered safe in 1800?

That's not really original application. I doubt any originalist would insist that we today are bound by factual information as it was known in the 18th century, let alone scientific data.

A closer approach to original application (still a bit off) would be -- if a person in 1789 would not have held that regulating asbestos was within federal power, assuming that he was presented with modern scientific data on the question, a court today should rule the same.
11.12.2006 3:36pm
Cornellian (mail):
But it's hard to see how anyone can make a reasonable facial challenge to the law on commerce clause grounds, given the statutory language.

And yet from the founding of the Republic up until the Roosevelt Supreme Court people would have found it hard to believe that a law prohibiting abortions had anything at all to do with the Commerce Clause. Saying that a law must be permissible under the Commerce Clause because it includes the hook "affecting commerce" is just buying into the whole Wickard v Filburn approach that Congress can regulate not just interstate commerce, but anything that affects interstate commerce, which basically means Congress can regulate anything. That was not anyone's view until less than 100 years ago. If Congress can regulate intrastate commerce because it affects interstate commerce, and if that was the intent of the Commerce Clause, then why not just say "commerce" instead of "commerce between the states"?
11.12.2006 3:36pm
David M. Nieporent (www):
One can make an argument -- rightly or wrongly -- that there are still some limits to the Commerce Clause after Raich and that because abortion is a service, not a product, and moreover, unlike labor in a factory or a restaurant, a service related to goods shipping or travellers travelling in the stream of interstate commerce, that it is outside the scope of interstate commerce. One can do this without being either corrupt or hypocritical.
No, one can't. Raich wasn't limited to "products." The left's commerce clause jurisprudence is in no way related to "products." Consider Morrison. That didn't involve "products," or "services related to goods shipping or traveling in the stream of interstate commerce." That involved rape. The left wanted to uphold the law solely based on the fact that rape affects the economy. The left reads the commerce clause to mean that the federal government can regulate anything which affects the economy in any way. To suddenly pluck abortion out on the grounds that it is a "service" would be completely hypocritical.

Abortion involves tools, drugs, etc., shipped in interstate commerce. It involves people who travel across state lines to procure abortions. And, obviously, if women remain pregnant, that will affect the economy. Voila. There's your left-wing commerce clause hook.
11.12.2006 3:39pm
Dave Hardy (mail) (www):
Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion

Interesting... and narrower than the Gun Control Act, which prohibits certain acts "in or affecting" commerce, but also forbids possession of guns under some conditions that *have ever* moved in commerce.

I always had a question about whether the "affecting" part might be close to void for vagueness. Determining whether gun possession or performing an abortion affects commerce would probably require a week's research of caselaw to give an opinion that might have a 60% chance of being correct. Not to mention requiring factual data that might not be easily obtained. Does the fact that the fetus would eventually have become an employee and consumer count?

Of course in the gun area the Court got around this by essentially proclaiming that anything (ourside of a school zone anyway) affects commerce.
11.12.2006 3:43pm
k parker (mail):
jrose,

Surely I'm not the only one who objects to the concept that the meaningless recitiation of a stock phrase makes the otherwise-unconstitutional permissible! And no, I'm not remotely willing to take the chance that some judge or panel will take your view about limitation.
11.12.2006 3:47pm
SG:
It seems that if the PBA ban were overturned (solely) on Commerce Clause grounds, this would implicitly affirm that PBA bans do not run afoul of Roe/Casey. Given this, states could individually ban PBA. Therefore, someone wishing to obtain a PBA might need to cross state lines in order to obtain the desired service. Crossing state lines to acquire a service is clearly an example of interstate commerce. Ergo, the federal PBA ban is a legitimate application of Commerce Clause.

But only if the court says it isn't.
11.12.2006 3:59pm
Bobbie (mail):
David, I didn’t say originalism is a policy; it is an interpretative method. But as I stated before, the decision to use originalism over any other interpretive method, is a policy choice.

Jay, I’m not sure I follow your argument. Your argument seems to be if we consider one source to find out how to apply a particular portion of the Constitution, we run into problems because there are numerous possible applications. But if we apply originalism, we only get one answer because we know which application to choose. But this, again, is a non-sequitor. If the dictionary definition provides multiple possibilities, then you’ve just moved the analysis back one step: shall we choose dictionary definition one, dictionary definition two, or the definition you get under originalism (setting aside that you likely wouldn’t get only one definition there either). Whichever one you choose is a policy choice. Lets says my principle is “the constitution means whatever Bobbie says it means in his last book.” Why ought courts not do that? If I’ve written a sufficiently detailed book, presumably, my answers to what each provision of the Constitution means would be just as clear (if not more clear) than the answers provided by the materials cited by originalists.

(I'm also not sure why you ought not consider something like legislative history; to say the Supreme Court says that laws ought not be interpreted that way -- which is wrong, only Scalia says that -- is irrelevant and question begging for our purposes. But I'll leave that to the side for the moment.)

Finally, Jay, you said that you can’t imagine any philosopher attempting to understand a historical text’s meaning by utilizing modern definitions of the vocabulary; you’re right, that wouldn’t make sense if you wanted to know what the text meant when it was written. But, again, in the context of determining how a legal text ought to be interpreted and applied, saying the only way to interpret the text is to determine what it meant when it was enacted because that’s the only way to understand what it meant when it was enacted it question begging.

Cornellian, I disagree, but since it appears that there’s no objective data available, I’ll simply say that in my experiences with the field, academic philosophers don’t take originalism much more seriously than they take Ayn Rand.
11.12.2006 4:02pm
Marcus1 (mail) (www):
Asking as a non-expert, does commerce clause jurisprudence really follow the "liberals imposing their personal beliefs" story line? I mean, other than the kinds of beliefs about legal theory and government power that would necessarily be implicated?

My basic understanding is that the "liberals" (to the extent that has had consistent meaning over the decades) have been willing to uphold pretty much everything, while a few conservatives have recently (starting with Rehnquist) been trying to get back to a more limited federal government.

At least in terms of the "activism" parlance, this doesn't seem to go along with standard conservative judicial restraint vs. liberal activist judges theory. Maybe this is why libertarians have recently tried to jettison the whole "activist" label? In any case, so what exactly is the attack on the liberal justices? Is the idea that the liberal judges don't actually believe in this judicial restraint stuff, but are just doing it to impose their personal views on the populace?
11.12.2006 4:02pm
Marcus1 (mail) (www):
Or is it just the academic argument that it appears to be, I meant to ask.
11.12.2006 4:08pm
Elliot Reed:
That's not really original application. I doubt any originalist would insist that we today are bound by factual information as it was known in the 18th century, let alone scientific data.
No, I doubt they would. But then why would they argue that we should be bound by their moral beliefs (e.g. about what constitutes "equality") but not their scientific beliefs? It's not at all obvious. Why is the line at scientific beliefs vs. moral beliefs?

Now, I suspect what's going to come out here is some kind of "we need to restrain judges" line. But in that case you've essentially jettisoned the force of the naive pro-originalism argument, which is that the force of the Constitution shouldn't change just because of completely unrelated lexical drift. And there are lots of ways to restrain judges other than binding them to moral beliefs pretty much everyone agrees are wrong. And, of course, it's going to be really hard to disentangle the moral beliefs from the factual ones, since we probably only have data about applications of moral principles (which will be depend both on facts and on moral principles).
11.12.2006 4:08pm
Cornellian (mail):
The difference between your example of "workplace safety" (itself anachronistic, since Congress couldn't regulate it at the time) and the conception of Due Process exemplified by the Supreme Court's Dred Scott and Lochner v. New York decisions is there is a fairly objective basis for determining if a substance is unsafe or not, while questions of morality and public policy implicated by questions like abortion lack a similar basis in objective fact so far as a scientific-type perspective is concerned.

My example wasn't anachronistic. I specifically said that the state banned unsafe substances in "federal workplaces" not workplaces in general because I didn't want to get side tracked on federalism issues.

Trying to distinguish my example by stating that one objective fact, while something like abortion isn't, doesn't quite work. I seem to recall an old Supreme Court decision upholding a state statute that prohibited women from practicing law. No doubt there were plenty of doctors around at the time willing to testify that the practice of law was too stressful for women, that it would impair their ability to carry out their role of wife and mother etc. We'd never buy that argument today, but they thought at the time that their position was based on objective fact.

If the issue of abortion were purely a matter of morality separated from determinations of objective fact, why is it necessary to consider evidence about the development of a fetus over the course of its pregnancy, or its viability outside the womb beyond a particular point in time? Might not knowledge of those things change over time with advances in medicine and medical technology? Might not the changes of facts over time lead to different results even if the original meaning of due process, or liberty or some other term in the Constitution has not changed? Might a particular form of execution constitute cruel and unusual punishment today even if it was not considered such in 1800 if new advances in medicine revealed that it was excruciatingly painful rather than relatively painless as had been assumed in 1800? Would reaching a different result today on the basis of that evidence constitute "legislating from the bench?"
11.12.2006 4:09pm
Elliot Reed:
Might a particular form of execution constitute cruel and unusual punishment today even if it was not considered such in 1800 if new advances in medicine revealed that it was excruciatingly painful rather than relatively painless as had been assumed in 1800? Would reaching a different result today on the basis of that evidence constitute "legislating from the bench?"
Or, to go a bit further, what about advances in economic or social theory? Suppose economists deicde that some practice that people had viewed as non-economic (marriage?) is really a de facto exchange of value for value, with no principled distinction between it and more conventional commercial transactions. Would this give the government the power to regulate marriage?federal
11.12.2006 4:13pm
Elliot Reed:
Whoops, that last sentence should be "Would this give the federal government the power to regulate marriage?"
11.12.2006 4:13pm
Cornellian (mail):
Asking as a non-expert, does commerce clause jurisprudence really follow the "liberals imposing their personal beliefs" story line? I mean, other than the kinds of beliefs about legal theory and government power that would necessarily be implicated?

No it doesn't follow that story line. Part of the problem with trying the exercise at all is that the terms "liberal" and "conservative" are slippery, and change over time as issues come and go. Back in the so-called Lochner era, the Supreme Court struck down many federal government attempts to regulate economic matters as being outside the scope of the Commerce Clause (and, implicitly, outside the scope of any of the other federal enumerated powers). If you consider yourself a conservative today, you claim these were "liberal" or "activist" results because they struck down laws enacted by the elected Congress. If you consider yourself a liberal today, you claim these were "conservative" or "right wing" results because they championed the interests of business over the interests of people.

My preference is just to examine what the Court did, and why, without worrying too much about whether that ought to be labeled liberal or conservative. I suppose that's why I'm a lawyer instead of a pundit or a blogger.
11.12.2006 4:43pm
Plato:
Everyone knows that commerce clause jurisprudence is just bullshitting to give the Federal Government police powers. I know one liberal law professor who privately admitted this to me.
11.12.2006 4:44pm
Jeremy T:
Cornellian,

You misread my argument. I'm only saying this: consider a law that says: "X is banned. This law shall be enforced only to the extent that it may be constitutionally enforced under the commerce clause." That law cannot possibly be facially unconstitutional under the commerce clause. If you think that the commerce clause gives Congress loads of power, then you think that law bans a lot of 'X.' If you think the commerce clause gives Congress very little power, then you think the law bans very little 'X.'

Considering the law in question here, the language strongly suggests Congress intended the law to go to the extent of their commerce clause powers and no further. That means it's not facially unconstitutional under the commerce clause. (In fact, I think you misunderstand slightly what "facial" challenges actually are.)

I do agree with you that the commerce clause gives Congress much less power than Wickard et al. suggest, but the only way to go after a facially constitutional law is to wait for a questionable prosecution and argue that the law is unconstitutionally applied in that case.

I hope you agree with me that Congress has the authority to prohibit a woman from calling an abortion doctor in another state and arranging for the doctor to drive to her home state and perform an abortion on her. There can't be much dispute that Congress could prohibit such conduct under the commerce clause under any reading of the commerce clause (irrespective of other constitutional limits on such a law). You apparently believe that Congress cannot, under its commerce clause power, forbid a woman from paying an abortion doctor in her state to perform a partial birth abortion on her. I happen to agree with you (though I believe Congress could ban all abortions under the due process clause). But that doesn't get us anywhere on a FACIAL challenge. It only gets us somewhere if a froggy US attorney somewhere goes and prosecutes a doctor performing a partial birth abortion on a woman in the same state.
11.12.2006 4:46pm
Mike BUSL07 (mail) (www):

Everyone knows that commerce clause jurisprudence is just bullshitting to give the Federal Government police powers.

Unfortunately, that's true for more than just the Commerce Clause. Having taken Con Law, 1st Amdt., and Admin, I'm firmly of the opinion that all constitutional law is bullshit, manipulable and manipulated to fulfill whatever agenda the manipulator wishes to see fulfilled. That's why Thomas, with whom I disagree about 80% of the time, is the only one I trust.
11.12.2006 4:48pm
Cornellian (mail):
Everyone knows that commerce clause jurisprudence is just bullshitting to give the Federal Government police powers. I know one liberal law professor who privately admitted this to me.

Guess what, it's not just liberals who are in on that vast Commerce Clause conspiracy, it's virtually every elected federal politician, whether Republican or Democrat and nearly all the judges they've nominated and confirmed. The only dissenters are a few academics who are universally ignored (at least in D.C.), and Clarence Thomas. Don't think so? Ask the co-called conservatives who passed the Terry Schiavo law what they think of a limited federal government.
11.12.2006 5:03pm
Cornellian (mail):
Considering the law in question here, the language strongly suggests Congress intended the law to go to the extent of their commerce clause powers and no further. That means it's not facially unconstitutional under the commerce clause. (In fact, I think you misunderstand slightly what "facial" challenges actually are.)

I do know what facial challenges are. If the statute had said "abortion is banned to the extent the federal government is capable of banning abortion under the Commerce Clause" then of course such a statute wouldn't be beyond the scope of the Commerce Clause, but it doesn't say that. It says basically that abortions are prohibited if they "affect" commerce. The Constitution on its face says Congress can regulate commerce between the states, not things that affect commerce between the states. As Thomas has so aptly pointed out, if you go with the "affect commerce" approach, you have to conclude that much of Article I is unnecessary verbiage. Who can doubt that creating currency affects commerce, or that running a postal service does so?

One might argue that the statute by saying "affect commerce" really means "as far as we can go under the Commerce Clause" but that's an issue of statutory intent, not an issue of the scope of the Commerce Clause.

I actually don't think I've expressed any opinion on the constitutionality of the statute, either facially or as applied. I've never read the statute and haven't read Raich all that closely or recently so I won't be expressing any definitive conclusions on the issue, I'm just talking about commerce clause jurisprudence in general terms.
11.12.2006 5:10pm
Cornellian (mail):
That's why Thomas, with whom I disagree about 80% of the time, is the only one I trust.

Thomas is the only principled originalist on the Court and, while that's probably a good thing on balance, I also think one Thomas is probably enough.
11.12.2006 5:14pm
jrose:
I'm not the only one who objects to the concept that the meaningless recitiation of a stock phrase makes the otherwise-unconstitutional permissible!

The stock phrase, "in or affecting interstate commerce", doesn't make the otherwise-unconstitutional permissible. It moves constitutional challenges from facial to as-applied (unless you can successfully argue that every application is unconstitutional).

the Commerce Clause doesn't say anything about "affected."

IMO, it is a reach to interpret the statute such that the stock phrase gives Congress more power than it has under the Commerce Clause, rather than more natural (and Constitutionally less problematic) interpretation that it gives Congress only those powers that are permitted under the Commerce Clause.
11.12.2006 5:22pm
David M. Nieporent (www):
I hope you agree with me that Congress has the authority to prohibit a woman from calling an abortion doctor in another state and arranging for the doctor to drive to her home state and perform an abortion on her. There can't be much dispute that Congress could prohibit such conduct under the commerce clause under any reading of the commerce clause (irrespective of other constitutional limits on such a law).
Of course there's a dispute over that. That certainly satisfies the "interstate" portion of the requirement, but not the "commerce" part of the requirement.

Read, for instance, what the Supreme Court said in Federal Baseball:
The business is giving exhibitions of base ball, which are purely state affairs. It is true that in order to attain for these exhibitions the great popularity that they have achieved, competitions must be arranged between clubs from different cities and States. But the fact that in order to give the exhibitions the Leagues must induce free persons to cross state lines and must arrange and pay for their doing so is not enough to change the character of the business. According to the distinction insisted upon in Hooper v. California, 155 U.S. 648, 655 , 15 S. Sup. Ct. 207, the transport is a mere incident, not the essential thing. That to which it is incident, the exhibition, although made for money would not be called trade of commerce in the commonly accepted use of those words. As it is put by defendant, personal effort, not related to production, is not a subject of commerce. That which in its consummation is not commerce does not become commerce among the States because the transportation that we have mentioned takes place. To repeat the illustrations given by the Court below, a firm of lawyers sending out a member to argue a case, or the Chautauqua lecture bureau sending out lecturers, does not engage in such commerce because the lawyer or lecturer goes to another State.
Substitute "abortion" for "exhibitions," of course.
11.12.2006 5:36pm
Jeremy T:
Mr. Neiporent,

Who has disputed that? Certainly not the parties.
11.12.2006 5:49pm
Marcus1 (mail) (www):
Mike,


I'm firmly of the opinion that all constitutional law is bullshit, manipulable and manipulated to fulfill whatever agenda the manipulator wishes to see fulfilled.


Well, it's BS if you think the judiciary was never intended to employ any discretion in interpreting the Constitution whatsoever.

I disagree that Thomas took an originalist view in Kelo, though. He pretended to, but he didn't do it. I'd guess that the real difference between Thomas and Scalia is simply that Scalia is a religious right-winger, and Thomas isn't. This makes it easier for Thomas to be judicially consistent.

I'd also say that Thomas only creates the appearance of consistency because he procedes on a very simplistic theory. By taking a more complex approach, someone like Breyer foregoes that kind of praise. Nevertheless, I happen to think Breyer's more moderate approach is better, more historical, etc.

I say that perhaps for the same reason that I'm liberal (I've always liked the idea of reasonableness), but not because it somehow benefits me.
11.12.2006 6:06pm
dick thompson (mail):
The problem with the complex approach is that you are screwing the general public that you are supposed to protect. When you get so complex that the public really has no idea what is permitted and what is not, and that is far more common than one would expect and usually because of the complexity and nuance of the liberals, then you eventually get to the point where everyone is guilty and at the same time no one is guilty. You have no baseline you can depend on. Every time you get a baseline the next case kicks it to the curb and changes the rules. That is why I think there should be at the minimum some form of originalism. The rest of the world is not made up of lawyers nor should it have to be to make a living.
11.12.2006 8:03pm
r78:

Since abortion (whether free or not) necessarily involves the use ("consumption") of medical supplies

Look everybody - I went to law school and can come up with absurd hypos!
11.12.2006 8:35pm
Eliza (mail):

I’ll simply say that in my experiences with the field, academic philosophers don’t take originalism much more seriously than they take Ayn Rand.



What academic philosophers think of originalism is, well, academic. When justices on the Supreme Court (and, for that matter, every other type of court) subscribe to a particular theory of interpretation you'd be very foolish not to take it seriously, notwithstanding what the cool kids in the philosophy department are saying.

And if I may, here’s where many people on this thread are going wrong: The Constitution is not some sort of mystical document for which there is no precedent in the law; it is not "alive," it cannot "evolve." The truth is much more pedestrian. The Constitution is a contract, an agreement between two parties- the people and the government--reduced to a writing in order to fix its terms. The Founders were looking to avoid the mistake the English made in the centuries after the Magna Charta in not nailing their government down to an explicit set of terms. That left it wide open for the Crown to exploit its monopoly on the use of force and unilaterally alter the deal in its favor.

And that’s what’s really happening here. The idea of a document that "lives" and "evolves" is kind of cool and superficially appealing, but when you stop and think about it it’s ridiculous. It’s what the philosophy crowd call a category error. Don’t fall for it. If the government has the right to unilaterally change the terms of the contract whenever it sees fit, then the government can do whatever it wants; the Constitution is no protection, no restraint, and all our rights are up for grabs.
11.12.2006 8:59pm
FlimFlam:
We will all be crucified on a cross of wheat.
11.12.2006 9:10pm
Mike BUSL07 (mail) (www):


Well, it's BS if you think the judiciary was never intended to employ any discretion in interpreting the Constitution whatsoever.

That's putting it a bit too strongly, I think. That said, there is discretion and then there is discretion. You can have a lot of discretion while having a principled adherence to the text. It's when you tie plastic forks in Missouri to a segregated restaurant in Alabama, that you've exercised too damn much of it.
11.12.2006 9:17pm
Jeremy T:
Amen Mike. And lots of people who should know better would accuse you of being "pro-segregation" for your last comment. That gets to the basic problem here: when you have a government of limited power, you have to accept that sometimes the government has no power to do things you'd like to see done. But it's still a hell of a lot better than having a government of absolute power.
11.12.2006 9:30pm
Paul Allen:
r78: Now you know how the rest of us felt when Congress created a nationwide minimum wage.
11.12.2006 9:37pm
Matt Tievsky (mail):
Ilay Somin: Since abortion (whether free or not) necessarily involves the use ("consumption") of medical supplies

r78 Look everybody - I went to law school and can come up with absurd hypos!

It's not at all absurd (and the fact that abortion requires medical supplies isn't hypothetical). If I were writing a law banning abortion nationally, it'd go something like this: "No medical supplies which have traveled in interstate commerce or whose use substantially affects interstate commerce shall be used to perform abortions." And if the Court were faithful to Raich, it'd uphold the law.
11.12.2006 10:05pm
Marcus1 (mail) (www):
Eliza,

I think it's a misunderstanding of the Living Constitution theory that it suggests the Constitution "changes." I'd be somewhat surprised if the theory has ever actually been invoked to say "well, that's what that word used to mean, but we're going to have it mean something different today." That's the originalist-created straw man.

For my view at least, I'd suggest the Constitution is living in the sense that it was written broadly, to provide a firm outline, but still so that changing norms could be incorporated without constantly having to go through the extremely difficult amendment process. It did this specifically with flexible terms like "liberty" and "due process" and "cruel and unusual." Indeed, I think this is almost always the context in which the "living Constitution" is invoked by supporters.

I suppose you could also say it's living through the evolution of precedent, but even that's beyond the normal usage of the term. I guess I don't see the superficiality.
11.12.2006 10:28pm
David M. Nieporent (www):
Who has disputed that? Certainly not the parties.
I didn't say they did. The parties didn't raise commerce clause issues at all, though, so I'm not sure your point. We're discussing the issue, not what the parties said.


Nevertheless, I happen to think Breyer's more moderate approach is better, more historical, etc.
I think Scalia has the best rebuttal to that: "What is a 'moderate' approach? Halfway between what the Constitution means and what I want it to mean?"
11.12.2006 10:46pm
Daniel Chapman (mail):
I dunno, Marcus1... Ever heard of the "Equal Protection component to the 5th Amendment Due Process Clause?" After all... "It would be unthinkable" that the Constitution has a requirement of the states that does not apply to the Federal Government... so the Constitution changed.
11.12.2006 10:59pm
Marcus1 (mail) (www):
Quotes I found interesting from Raich:


Given the enforcement difficulties that attend distinguishing between marijuana cultivated locally and marijuana grown elsewhere, 21 U.S.C. § 801(5), and concerns about diversion into illicit channels,33 we have no difficulty concluding that Congress had a rational basis for believing that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the CSA.


Could the same thing really be said of an anti-abortion law?


In contrast, in both Lopez and Morrison, the parties asserted that a particular statute or provision fell outside Congress’ commerce power in its entirety. This distinction is pivotal for we have often reiterated that “[w]here the class of activities is regulated and that class is within the reach of federal power, the courts have no power ‘to excise, as trivial, individual instances’ of the class.”


Does this suggest that an "as applied" challenge under the abortion law couldn't even be heard, thus necessitating that the issue be decided facially?


Unlike those at issue in Lopez and Morrison, the activities regulated by the CSA are quintessentially economic. “Economics” refers to “the production, distribution, and consumption of commodities.” Webster’s Third New International Dictionary 720 (1966). The CSA is a statute that regulates the production, distribution, and consumption of commodities for which there is an established, and lucrative, interstate market. Prohibiting the intrastate possession or manufacture of an article of commerce is a rational (and commonly utilized) means of regulating commerce in that product.


Does abortion really come down the same way?

Seems to me that if Raich looks silly, a case attempting this analysis with abortion would look a lot sillier.
11.12.2006 11:02pm
Mark Field (mail):

The Constitution is a contract


You say that like there's only one way to see it. There isn't. Many people see it as an organic document, i.e., one which establishes a government and sets the terms of its power. It's not a contract so much as a written order from the superior (the people) to the subordinate (the government) directing it how to act.


an agreement between two parties- the people and the government


If we did choose to see it as a contract, it would be a contract between the people inter se.
11.12.2006 11:04pm
Marcus1 (mail) (www):
Daniel Chapman,

Those kinds of changes don't have anything to do with the "Living Constitution" theory, any more than Scalia's various shenanigans all represent originalism. If anything, that's a question of strict constructionism, but that's not the same as the originalism vs. living constitution debate.
11.12.2006 11:13pm
Daniel Chapman (mail):
*shrug* If you say so.
11.12.2006 11:15pm
Marcus1 (mail) (www):
Daniel Chapman,

If you can show me someone invoking the living Consitution to support that decision, I'd be happy to change my mind.

Another interesting quote from Scalia's dissent in Raich:


[The majority's analysis is] misleading because, unlike the channels, instrumentalities, and agents of interstate commerce, activities that substantially affect interstate commerce are not themselves part of interstate commerce, and thus the power to regulate them cannot come from the Commerce Clause alone. Rather, as this Court has acknowledged since at least United States v. Coombs, 12 Pet. 72 (1838), Congress’s regulatory authority over intrastate activities that are not themselves part of interstate commerce (including activities that have a substantial effect on interstate commerce) derives from the Necessary and Proper Clause.


Just because it made me wonder, so where was this clarification in Kelo, that the public use requirement actually derives from the due process clause?
11.12.2006 11:27pm
danthe8th (mail):
I just want to pick a lawyer's brain on a related topic. Why do we need to stretch the commerce clause? How does the court interpret Congress' right to provide for "the general welfare" such that it doesn't extend to all these cases? It's always seemed to me that the wording is so broad as to make federalism empty. Why doesn't it?
11.12.2006 11:40pm
Daniel Chapman (mail):
Hey if you want to restrict it to decisions from after the phrase "living constitution" was coined, I doubt wickard qualifies either. The same lack of respect for the plain meaning of the document is evident in both, however.

I'm sure you can find another way to limit the question... that's fine. Debating anything here is pretty much masturbation anyway.
11.12.2006 11:43pm
HLSbertarian (mail):

I just want to pick a lawyer's brain on a related topic. Why do we need to stretch the commerce clause? How does the court interpret Congress' right to provide for "the general welfare" such that it doesn't extend to all these cases? It's always seemed to me that the wording is so broad as to make federalism empty. Why doesn't it?


Because "general welfare" modifies the taxing power. Otherwise there's no need for enumerated powers.
11.13.2006 12:07am
Cornellian (mail):
And if I may, here’s where many people on this thread are going wrong: The Constitution is not some sort of mystical document for which there is no precedent in the law; it is not "alive," it cannot "evolve." The truth is much more pedestrian.

The idea of a document that "lives" and "evolves" is kind of cool and superficially appealing, but when you stop and think about it it’s ridiculous.


The term "due process" in the Constitution did not spring into existence on the day the Bill of Rights was drafted. Rather it was a term that had gradually evolved over many years of common law adjudication, that was evolving and that would continue to evolve in the future. The drafters were well aware of this. It's entirely plausible that by using the term "due process" they intended the full concept as it existed at the time, namely an evolving concept, and did not intend to change its nature by freezing it as it existed at an instant in time.

Similarly, if the equal protection clause was meant to prohibit irrational distinctions among classes of people, it's entirely possible that the framers of the 14th Amendment intended "irrational" to mean "irrational as it appears to the trier of fact at the time of the trial" and not "irrational as it might appear to a court on the day the 14th Amendment was enacted, regardless of whatever future facts might be before some other court in the future."

Thus to say that the Constitution means what it meant when it was drafted does not at all preclude reaching a different result today, and the latter does not automatically entail that the judiciary is changing the Constitution. If the Constitution is "living" in this sense, it's not all an absurd position and might even be closer to the original understanding of its meaning that the kind of view espoused by someone like Bork or Scalia.
11.13.2006 12:12am
Cornellian (mail):
I just want to pick a lawyer's brain on a related topic. Why do we need to stretch the commerce clause? How does the court interpret Congress' right to provide for "the general welfare" such that it doesn't extend to all these cases? It's always seemed to me that the wording is so broad as to make federalism empty. Why doesn't it?

The phrasing of Article I section 8 is:

"The Congress shall have power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the Common Defence and general Welfare of the United States..."

It doesn't say that Congress has the power to legislate for the general welfare. Rather, Congress can tax for the general welare (and presumably spend what it takes in). In other words, Congress can tax whatever it likes and spend on whatever it likes, but cannot legislate on whatever it likes. That's why Congress uses money to get states to do things that Congress cannot do directly by making state funding contingent on the state doing whatever it is the feds want them to do.
11.13.2006 12:23am
Matt Tievsky (mail):
Marcus1,

If Congress writes a national abortion ban that is actually aimed at the medical instruments used in abortions, then our hypothetical abortion/Commerce Clause case doesn't look too different from Raich.
11.13.2006 12:25am
Cornellian (mail):
If you can show me someone invoking the living Consitution to support that decision, I'd be happy to change my mind.

Another interesting quote from Scalia's dissent in Raich: . . .


Scalia didn't dissent in Raich, he voted with the majority. Mr. Originalist thus took the position that the interstate commerce clause gave Congress the power to regulate the activity of a person growing marijuana in her own backyard for her own personal use. Not suprisingly he doesn't cite any basis for thinking this was the original understanding of the Commerce Clause. Heck I don't think the term "original understanding" even appears in his opinion. Thomas nailed it when he said if that's interstate commerce, then everything is.
11.13.2006 12:28am
GMUSL 3L (mail):
Cornellian, if you read the opinion he didn't join with the majority, he concurred because he had a different rationale. While I agree with Thomas, you are perhaps mischaracterizing Scalia's opinion.
11.13.2006 2:05am
Marcus1 (mail) (www):
Cornellian,

Oops, thanks, I knew that.

Matt Tievsky,

I guess they could aim it at the medical devices. (What, "no selling devices primarily used for abortion"? Might still be hard, but I'm sure they're clever.)

Even substantively, though, I don't know if I can admit this here, but I'm not totally sure the federal government lacks a legitimate power to control the drug trade. Wouldn't it be kind of crazy if tomorrow, California legalized all drugs? I'm not sure it's just rhetoric; that would create a pretty big interstate commerce problem. Maybe they should have been willing to do more line drawing between that and a medical marijuana law, but I can see legitimate reasons why they wouldn't.

Comparing that with abortion, I don't see how abortion raises the same issues. I don't know how the SCOTUS would deal with the device banning method, but I'd presume they could see through it if they wanted to.

Maybe the problem is that in this day and age, just about everything is interstate commerce, whereas that's not how it used to be.
11.13.2006 9:28am
k parker (mail):
Marcus1,
Maybe the problem is that in this day and age, just about everything is interstate commerce, whereas that's not how it used to be.
OK, fine, I certainly agree that this is the case. So why does the court have to find the few things that aren't interestate commerce (e.g. Raich) and try to convince us they are?
11.13.2006 12:14pm
NickM (mail) (www):
Of course, Congress could have entirely avoided Commerce Clause jurisprudence by making a federal definition of birth so as to encompass partial delivery (in layman's terms, once you're sticking out, you're born), applying their power under Section 5 of the Fourteenth Amendment. Under that structure, PBA is infanticide, not abortion.

Nick
11.13.2006 12:52pm
Cornellian (mail):
Of course, Congress could have entirely avoided Commerce Clause jurisprudence by making a federal definition of birth so as to encompass partial delivery (in layman's terms, once you're sticking out, you're born), applying their power under Section 5 of the Fourteenth Amendment.

This doesn't work. The Supreme Court has already ruled that Congress can't make up its own ideas of what rights fall within the scope of section 5 of the 14th Amendment and in any event, Congress's power under that section is the power to legislate against states, not individuals.
11.13.2006 2:57pm
jrose:
The Supreme Court has already ruled that Congress can't make up its own ideas of what rights fall within the scope of section 5 of the 14th Amendment and in any event, Congress's power under that section is the power to legislate against states, not individuals.

I'm not so sure in this case. I do agree precedent establishes there is no 14th Amendment Due Process right that requires state action against individuals who murder, and Congress can't make up such a right. However, can it be argued that the federal law is permissible because it is a preventive measure against a potential Equal Protection violation if a state were to choose to prosecute indivduals who murder one class of person, but not another class of person.
11.13.2006 8:13pm
Cornellian (mail):
jrose, that's a very, very long stretch since the statute purports to prohibit abortions by private individuals. It doesn't apply to the states at all, and the effect of it is to allow the feds to prosecute any individuals involved, whether or not state law prohibits the same activity and whether or not the state prosecutor is able or willing to prosecute.

A much more interesting situation from a constitutional point of view would be if Congress, in reliance on section 5 of the 14th Amendment, enacted a law requiring all states to include in their murder statues a definition which did not discriminate against the "pre-born."
11.14.2006 12:58am
Siona Sthrunch (mail):
It's frustrating that my comment, pointing out a basic misreading of Raich by the Ilya, was lost in the sea of ignorant political polemic characterizing this thread.

The level of discourse on this entire blog, frankly, is degenerating. Some affirmative step must be taken to avoid its becoming another talk.politics.misc.
11.14.2006 8:45am
jrose:
that's a very, very long stretch since the statute purports to prohibit abortions by private individuals.

I disagree because Boerne extends A14, Sec5 Congressional power to prohibit things which aren't unconstitutional under A14 (in this case acts by individuals), so long as the legislation acts as a deterrent for potential A14 violations (in this case, Equal Protection as explained above).
11.14.2006 4:27pm
Matt Tievsky (mail):
Marcus1,

I agree with you that there is a stronger case for banning marijuana possssion than banning abortion, under the Commerce Clause. Intuitively, at least, that makes a lot of sense. The problem is that the sort of distinction you're drawing simply doesn't exist in modern Commerce Clause jurisprudence, AFAIK. Raich is an awfully broad opinion.

Which is not to say that the Court couldn't recognize such a distinction in the future. But to do so, it'd have to undercut Raich, and it'd be at odds with the seemingly limitless view of the Commerce Clause held by the four liberals (see Morrison).
11.16.2006 2:41pm
Matt Tievsky (mail):
Marcus1,

I just realized the specific problem with your theory of how to distinguish abortion from marijuana. The problem actually pre-dates Raich by over fifty years.

You write, "I don't know how the SCOTUS would deal with the device banning method, but I'd presume they could see through it if they wanted to." Now, I personally agree with you that it's silly that Congress could go after the intrastate phenomenon of abortion through the facade of regulating the interstate trade in medical supplies.

And, indeed, But the Supreme Court condoned the use of such facades back in U.S. v. Darby (1941), upholding a federal law that prohibited the interstate trade in materials that were manufactured through the use of child labor. The rationale was that Congress can regulate interstate commerce for any reason at all.

It seems to me that a national ban on abortion would clearly be constitutional under Raich and Darby.
11.16.2006 2:55pm