Et Tu, Nino?

It appears that even Antonin Scalia has feet of clay.

By now everyone has heard that the Supreme Court has decided Raich v. Gonzales in favor of the power of the Federal government, and Scalia was one of the 6-3 majority.

Quite honestly, I'm saddened. It's not that I didn't expect the decision to turn out that way, but that Scalia upheld it...

I'm surprised.

That he upheld it at least partially under the precedent of Wickard v. Filburn? That's angering.

For those of you not steeped in historical jurisprudence, Wickard v. Filburn was a New Deal-era Supreme Court decision that essentially granted limitless powers of regulation to the federal government. At issue was the Agricultural Adjustment Act of 1938, which regulated wheat production under the Commerce Clause of the Constitution. A farmer in Ohio, Filburn, grew wheat on his farm for the explicit purpose of feeding his livestock and himself. It was not grown for sale, either intrastate or interstate. The Agricultural Adjustment Act limited the acreage a farmer could plant for sale so as to help control the wheat market. Farmer Filburn was allotted 11.1 acres. He grew about 23 acres. The court found against him, the argument (in part) being that what he grew for his own consumption affected interstate commerce.

It seems a simple thing, but the point of the matter is whether the contract that is the Constitution means what it says. I don't think you could argue that the Founders meant for the Federal government to have the power to dictate to farmers what they could or could not grow for their own use, but that's what the Wickard decision said it meant. And that decision pretty much opened the door for the federal government to regulate everything - for what doesn't "affect" interstate commerce? This was a massive expansion in federal powers, one of several that occurred during FDR's presidency.

But back to Scalia.

I've quoted before from a speech he gave on March 14 of this year, and I'm going to do it again. Justice Scalia makes a lot of his being an "originalist," a "textualist" in his interpretation of the Constitution. Here he illustrates that even the general public, once upon a time, was too:

Consider the 19th Amendment, which is the amendment that gave women the vote. It was adopted by the American people in 1920. Why did we adopt a constitutional amendment for that purpose? The Equal Protection Clause existed in 1920; it was adopted right after the Civil War. And you know that if the issue of the franchise for women came up today, we would not have to have a constitutional amendment. Someone would come to the Supreme Court and say, “Your Honors, in a democracy, what could be a greater denial of equal protection than denial of the franchise?” And the Court would say, “Yes! Even though it never meant it before, the Equal Protection Clause means that women have to have the vote.” But that’s not how the American people thought in 1920. In 1920, they looked at the Equal Protection Clause and said, “What does it mean?” Well, it clearly doesn’t mean that you can’t discriminate in the franchise — not only on the basis of sex, but on the basis of property ownership, on the basis of literacy. None of that is unconstitutional. And therefore, since it wasn’t unconstitutional, and we wanted it to be, we did things the good old fashioned way and adopted an amendment.

Or to paraphrase: “Yes! Even though it never meant it before, the Commerce Clause means that the federal government can control what farmers grow for their own consumption.” Or what sick people grow for theirs.

Now, I find it fascinating that at about the same time that we passed the 19^th Amendment we also passed another, the 18^th, which outlawed "intoxicating liquors." Funny, though, that we didn't have to pass an amendment to outlaw other intoxicating substances. No, in 1914 Congress passed the Harrison Narcotic Act instead, beginning a nearly century-long "War on (some) Drugs™" with all attendant unintended consequences. And the federal government using Wickard v. Filburn and other decisions has expanded its power exponentially trying to enforce the Harrison Act and its offspring.^*

Now, granted, Scalia more strongly relies on the Necessary and Proper clause in his concurrance, but that's just icing on the cake as far as I'm concerned. Radley Balko has the right of it in proclaiming of Justice Clarence Thomas's dissent the only opinion that was "dead on":

Thomas was dead-on, and proves to be the only principled federalist with an orginalist view of the Commerce Clause.

If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything--and the Federal Government is no longer one of limited and enumerated powers.

[...]

Certainly no evidence from the founding suggests that "commerce" included the mere possession of a good or some purely personal activity that did not involve trade or exchange for value. In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana.

And he notes that Thomas specifically disagrees with Scalia's use of the Necessary and Proper clause:

In Lopez, I argued that allowing Congress to regulate intrastate, noncommercial activity under the Commerce Clause would confer on Congress a general "police power" over the Nation. This is no less the case if Congress ties its power to the Necessary and Proper Clause rather than the Commerce Clause. When agents from the Drug Enforcement Administration raided Monson's home, they seized six cannabis plants. If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption (not because it is interstate commerce, but because it is inextricably bound up with interstate commerce), then Congress' Article I powers--as expanded by the Necessary and Proper Clause--have no meaningful limits. Whether Congress aims at the possession of drugs, guns, or any number of other items, it may continue to appropria[te] state police powers under the guise of "regulating commerce."

And this is what Scalia protests against - the federal government having no meaningful limits on its power. Scalia said in another speech

The only reason you need a constitution is because some things you don't want the majority to be able to change. That's my most important function as a judge in this system. I have to tell the majority to take a hike.

He missed a chance today. Thomas didn't.

^*(And if you want to know my position on the War on (some) Drugs™, please read It is Not the Business of Government)

UPDATE, 6/7: The Geek with a .45, commenting on the Raich decision said this:

It seems. Prof. Tribe was quite right to suspend work on his second volume.

Perhaps so.