Thomas wrote:I disagree. It's like saying that stealing is wrong in all cases, but that I will sometimes steal nevertheless: Because I'm imperfect, I will sometimes act wrongfully.
With all due respect, that's nonsense. Scalia, remember, is advocating a jurisprudential philosophy. This is not a case where "we sin because we are all sinners." This is a case where Scalia says there is a right way to decide cases and a wrong way. If the right way is right only most of the time, then it's not the right way.
Thomas wrote:Thus, if Scalia writes an activist opinion, that may make him a negligent originalist (he doesn't know he's breaking his originalist principles, so he breaks them). It may even make him a reckless originalist (he knows he's breaking his originalist principles, but he breaks them anyway). But it wouldn't necessarily make him a non-originalist (as in, he has no originalist principles to break.)
No, it doesn't make him a negligent originalist or a reckless originalist or even just a careless originalist, it makes him a hypocrite. And that's because he is not an originalist.
Part of the problem with criticizing dissents for failing to adhere to the original intent of the constitution is that the dissents didn't attract a majority of the court. So the best response to that criticism is "it doesn't matter, they lost." For that reason, Raich would be a better case to review. But since Scalia was on the wrong side of the commerce clause debate in that case, I suppose it doesn't count.
I will assume, Thomas, that you think the dissenters in Morrison and Lopez departed from the original intent of the framers in their interpretation of the commerce clause. But how did they depart? Was it in their interpretation of the word "commerce?" Or was it in their argument that the commerce clause allows for regulation of local activities that "affect" interstate commerce?
As to the former, the constitution is designed to be interpreted. It is not a statute that enumerates specific categories of subjects, but rather it outlines large doctrines that are intended to be refined by the courts, according to both the text of the document and its purpose.
As for the latter, the supreme court has said since at least Gibbons (1824) that local, purely intrastate activities that impinge upon interstate commerce can be regulated by congress. A broad reading of the commerce clause was not the invention of the majority in Wickard v. Filburn. Certainly the decisions of the early supreme court, when many of the framers of the constitution were still alive, deserve some special consideration.
I'm always sorry to let you down Joe, but I just don't see the inconsistency between "there's a right way to do X" and "I don't always do X the right way." Off the top of my head, I could name several "X"s for which this is true about my own job and the way I do it. This doesn't make me proud, but it's the way it is. Why shouldn't the same be true for Scalia?
And what makes you so sure he is confident in having decided Bush v. Gore the right way? If I remember correctly, he is on record as saying that he'd be embarrassed if this decision influenced anything except this actual case. This doesn't sound like the statement of a man who's sure he got it right.
If you wish to discuss Raich -- fine, let's discuss it. As for "the problem with criticizing dissents", an opinion is an opinion that is either valid or not. Whether the opinion becomes a decision or not does not affect its correctness. The Supreme Court has the power to make its errors legally binding, but it doesn't have the power to make its errors correct -- or correct dissents incorrect.
I agree (up to a point), and this is why I didn't choose a set of cases where the issue was the interpretation of adjectives like "due" (process), "necessary and proper", or "cruel and unusual". Unlike all those, "commerce" has a fairly clear definition that can be discerned by looking into founding-era dictionaries. It means trade, plus navigation for the purpose of trade. (For example, the commerce clause does give the Federal government the power to build lighthouses.)
Marshal, in Gibbons v. Ogden, is arguing against a nonsensically narrow interpretation of the commerce clause, one that would have condemned federal lighthouses as unconstitutional. Unfortunately Marshal did not give an example of an interpretation he would consider overbroad, so I can't prove he wouldn't have considered it "commerce among the several states" when a farmer grows wheat on his own farm and feeds it to the chicken on that farm. But given the common usage of the word "commerce" in the founding era, it is extremely implausible that the case of Wickard would have been covered.
[D]issenters have the freedom to make their opinions as broad or as irresponsible as they wish, since they don't have to worry about maintaining a majority voting bloc. There is a different dynamic at work with majority opinions.
Since when is a lighthouse "commerce?" Even you admit that "commerce" in the commerce clause means something in addition to commerce.
Take a look at the Federal Base Ball Club[/url] case (it's a very short opinion) and tell me whether you think Holmes was correct.
What about the particular dissents in Morrison and Lopez then? Would you call them broad and irresponsible?
Lighthouses aren't commerce, but they regulate it. When a ship carries merchandise from England to America, that's commerce. Accordingly, when a lighthouse warns ships about cliffs -- ensuring that their freight ends up in a port, not on the ocean bed -- that's regulating commerce.
It's a close call, but I disagree with Holmes. Through the National and American Leagues, clubs incorporated in one state are selling a service (baseball playing) to clubs in another state. That's commerce -- just as it's commerce when computer programmers in Bangalore, India, sell coding services to Microsoft in Seattle, WA. There is no doubt in my mind that a protectionist American government could proscribe Microsoft's purchase of Bangalore software. (It would be terrible politics, but constitutional.) Major league baseball is an analogon "among the several states."
One side remark from my perspective as an originalist: It would have been interesting to see what happens with this case if the Federal League alleges a Ninth Amendment violation here. Some founding-era state constitutions have protection against monopolies specifically enumerated in their Bills of Rights. For example, the North Carolina constitution of 1776 declares "[t]hat perpetuities and monopolies are contrary to the genius of a free State, and ought not to be allowed. " (Declaration of Rights, clause XXIII) Since this is an enumerated right in some State constitutions, could the Federal League have argued that it has a not-enumerated Ninth Amendment right to be safe from the National and American Leagues' monopoly power? I am not a jurist, but as Chief Justice of my own little armchair court I often decide cases under the American Constitution. And in this particular case, I might well have decided for the Federal League on Ninth Amendment grounds.
For some reason, a voice in my head keeps whispering "trick question, trick question, trick question ..." But you would never ask me a trick question, Joe, would you?
Thomas wrote:What about the particular dissents in Morrison and Lopez then? Would you call them broad and irresponsible?
The answer to that relies on a counterfactual: what opinion would the dissenters have written if they had been in the majority?
As an armchair jurist, I would find such an argument unpersuasive. Regulations against monopolies in colonial charters and early state constitutions would, at most, impose an obligation on the state. They would not guarantee a right of the people. It would be rather odd to say that the people have a "right" to be free from monopolies, although I suppose the argument can be made. The example that you give, however, is clearly not that kind of right.
Now that we know you believe that travelling from state to state, as an incident to commerce, is also commerce,
Take a look at Heart of Atlanta Motel (just Justice Clark's majority opinion -- no need to read the concurrences) and see if you agree with the reasoning there.
Arguments are arguments, and they are either good or bad, broad or narrow. My question is, what do you think about the arguments in those dissents? I can see why you are reluctant to answer the part about `irresponsible', since a dissent has barely any legal consequences. But I see no reason why you couldn't decide whether or not the dissents are broader than your idea of a valid interpretation.
Since we have no caselaw on this, my speculation certainly contains a major element of `I know it when I see it'. But intuitively, I would say that clauses proscribing monopolies are to business what non-establishment clauses are to religion. All present Supreme Court justices but Thomas agree that the non-establishment clause of the First Amendment is incorporated via the 14th Amendment, on the theory that a religious establishment in a state would deprive (individual) persons of liberty. I imagine that one could make an analogous argument that the constitution compels anti-trust.
No, you don't know that. In fact, I agree with Holmes that the travel is irrelevant to the case. Consider my international parallel where programmers in Bangalore write software that Microsoft in Seattle purchases. In their case, the commerce may not involve a single Indian flying to America. It is irrelevant to the case whether the programmers travel or not. It is also irrelevant to the baseball playing case.
You can imagine a modern variant of that lawsuit where the subject is cyber-baseball: The teams never leave their hometowns; they play cyber-baseball over the internet, using joysticks. The National and American leagues broadcast the games on their website, where a national audience watches them. The Federal Club sues because the other two leagues won't let its teams access their website. In my view, this cyper-case would still be about interstate commerce, and would be exactly analogous to the historical case. The travelling is irrelevant in deciding whether something is interstate commerce. The important question is whether a service or a commodity crosses state lines. If the answer is yes, the government can regulate it.
I will, but I'll need a day or so to really read it and think about it.
Actually, I tend to disagree with the minority opinions in both Lopez and Morrison, although I'd have to study the majority opinions to determine if I agree with them.
But the crossing of state lines in FBBC was the only interstate element in that commerce -- Holmes recognized that, even though he ruled that it wasn't an essential element of the commerce. Your analogies, therefore, don't make any sense: in the cyber-case, access to the website would be absoutely essential -- a cyber league would not be able to exist otherwise. If you think that FBBC was wrongly decided, it must be because you think that something that is incidental to commerce, such as travelling across state lines in order to carry on with one's business, is also subject to regulation under the commerce clause.
I'm sure Roscoe Filburn and/or his wheat crossed state lines plenty of times.
In my view of all three cases -- the real one and the two I made up -- it is essential that a service crossed state lines. It is incidental whether people of flesh and blood crossed state lines to provide the service.
The part of Holmes's opinion that I disagree with is this sentence: "As it is put by defendant, personal effort, not related to production, is not a subject of commerce." In my view, personal effort related to a service is a subject of commerce, even if the effort is not related to production. What I think Holmes misjudges here is the nature of the service industry, but not the nature of travel.
Is that really so odd? Consider the case of the Indian programmers: Would you find it incidental or essential whether the CEO from Bangalore sends the computer code per e-mail or whether she burns it onto CDs, puts them into her purse, personally flies from Bangalore to Seattle, and delivers them to Bill Gates as the two have a Diet Coke together?
Roscoe Filburn may well have crossed state lines (which is incidental to me, as I just noted.) The wheat in dispute was the part he harvested in excess of his allotment and fed to his hens. That wheat never crossed state lines (which is essential to me, as I also just noted.)
If a Democratic president wants to replace Stevens with a justice even more liberal than he is, another possibility would be to look backward to the old-style liberal philosopher kings of the Warren era, exemplified by Stevens's predecessor, William O. Douglas. But a Democratic president would be unlikely to choose a candidate from among the liberal philosopher kings, because a political constituency no longer exists to support the 1960s-era notion that the courts are equipped to reconstruct American society along egalitarian lines. An opposite strategy, recently advocated in The New Republic by Douglas Kendall of the Community Rights Counsel and James Ryan of the University of Virginia, would be to appoint a "progressive originalist" who could turn Scalia's methodology against him, invoking the original understanding of the Constitution to justify liberal rather than conservative results. In a response to Kendall and Ryan, however, Post and his fellow progressive scholar Reva Siegel, also of Yale Law School, have argued that the attempt to beat Scalia at his own game is a capitulation to the conservative terms of debate that is also unlikely to resonate with liberal voters in the country as a whole.
Are these just unconnected anectdotes? Or could a results-oriented liberal judge reaching consistently liberal conclusions justify these conclusions with originalist arguments?
Without agreeing with your premise that originalism is an intellectually barren method, I would observe that an idea being bad has rarely kept political activists from adopting it.
Obviously the charm and the xenophilia in Vienna wasn't what attracted Joe to this city. It must have been the legal theory then.
