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Thursday, June 09, 2005

Scalia Abandons Originalism

Randy Barnett: The Ninth Circuit’s Revenge.

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

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What about Justice Scalia? He did not join the majority opinion, resting his decision on the Necessary and Proper Clause, which he had previously described in Printz v. U.S. as "the last, best hope of those who defend ultra vires congressional action." In his concurring opinion in Raich, Justice Scalia appears to put his commitment to majoritarianism over his commitment to originalism. Yet this decision does run counter to his oft-expressed insistence that the people should act to protect their un-enumerated rights in state political processes rather than in federal court. Here this is exactly what the citizens of California and ten other states have done, but Justice Scalia's new stance on the Necessary and Proper Clause leaves citizens little, if any, room to protect their liberty from federal encroachment in the future. It has always seemed significant that he never joined Justice Thomas's originalist concurrences in Lopez and Morrison. Nor does he explain why Justice Thomas's originalist dissent in Raich is historically inaccurate, which would be incumbent on him as an "originalist justice" to do. Instead, Justice Scalia now joins in expanding the reach of the Commerce Clause power beyond even that which the Court had endorsed in Wickard v. Filburn. In oral argument he admitted, "I always used to laugh at Wickard." Now it's Judge Stephen Reinhardt and the Ninth Circuit's turn to laugh.

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