Justice Scalia’s recently did his best Kimbo Slice impression on Justice Stevens in his concurence in Baze v. Rees, applying a torrent of blows that takes the entire myth of civility on the High Court and chucks it out the window. As a follow-up to our previous discussion regarding the effect of judges on the development of law and social policy, friend of the Hypo and CUA alumni Mojo challenged my manhood by asking me to defend Stevens from Scalia. (He was encouraged by the Sherpa who loves a good brawl). This school yard fight took place in the comments of another post, and I’ve relocated the proceedings here.
Scalia’s withering assault is concise and proceeds logically. Where I think that it goes off the rails however is in the assertion that when jurists interpolate factual findings with their own experience in rendering a decision, they have sought to rule by “judicial fiat” and usurp the power of the legislator. I think this is rubbish, because we as a society rely on the erudition of jurists to use their discretion and experience in applying and interpreting the law. For example, during the sentencing phase of criminal proceedings, a judge is going to take the totality of the circumstances in account in deciding how to apply the sentencing guidelines. Lacking that, judges might as well be like clerks at the DMV, rubber stamping whatever comes before them.
Moreover, it is hypocritical – if not intellectually dishonest – to call Stevens on the carpet when Scalia’s done the same thing. In his dissent in Lawrence v. Texas, Scalia suggested that the Court’s decision was because the court had “signed on to the homosexual agenda.” Though I confess I’ve not read the entire record, I’m willing to guess that it doesn’t contain writings to suggests that there is a master homosexual organization that makes decisions for all it members. If such a claim cannot be described as the interpolation of the ones own experience (suspect as it is) into the making of law, I don’t know what is.
Scalia’s also claims that Stevens’ concerns regarding the societal cost of death penalty are disingenuous because they are self-inflicted, the direct result of encumbrances imposed by he and other opponents of the death penalty. He goes further in suggesting that lacking encumbrances, everything would go easier and proceed within the traditions of the implementation of capital punishment. Presumably, if the Constitution allows for it, and the states implement a system that starts stats stacking bodies like cord wood, that would be fine with him.
Which brings me to the key problem with Scalia’s jurisprudence: you can’t have the kind of consistency he seeks unless you’re in a a vacuum. In Scalia’s world the will of the people is reflected instantly in the legislator, legislators are in no way saddled with prejudices that would limit their ability to govern fairly. This, of course, is nonsense. I’m willing to suggest that in the absence of expansive judicial interpretations (particularly from the Warren Court) that a number of the freedoms we now understand to be common place would be consigned to the dust bin of history. Can you really imagine the Southern States of the 1960’s voluntarily integrating? Using Scalia’s formula, if a duly constituted legislative body enacted laws that were not proscribed by the Constitution, it’s alright, even if a substantial portion of the population is disenfranchised as a result.
In short, I like Stevens better than Scalia because he recognizes that there are any number of real problems in the world that the Supreme Court is an a unique position to address, and that will never be dealt with by legislative bodies hidebound by tradition and human failing. Scalia seems to believe that given enough time, it will all be alright. I don’t share his optimism. I would rather have a slightly undemocratic process (an unelected judge making Common Law) which produce a desirable result than jump, and hope that the angels of our better nature catch us before be slam into the pavement.
No related posts.
It’s a damn shame that you don’t have more trust in the American people, Dr. Bombay. If you look back over the record of the 1960s integration period you’d see that it wasn’t simply the Supreme Court by judicial fiat declaring integration and busing and everyone rolling over and taking it. It took decades for the Southern states to comply, and it was the willingness of elected political leaders like Eisenhower and Johnson to put their foot down and force integration, by actual force if necessary.
Scalia’s point is spot on – the founding fathers gave great deference to the legislature – Congress was considered a first among equals within the government, as it was the only body that was truly representative of the people.
The courts have become the short cut for those who wish to push societal evolution along without having to convince a majority of Americans that the change is right. To argue that without the Courts, some changes will never happen ignores our history. Standing armies, a federal banking system, federal funding of infrastructure, abolition, direct taxation, direct elections for many federal offices – all of these changes were major 180 degree shifts in public opinion that occurred over decades and didn’t require the courts replacing their judgment with that of the people through their elected representatives.
The people of several states have chosen to ban capital punishment. Others have not. When and if everyone changes their minds and chooses to end it, they can do so through the Congress, not the courts.
BigScho,
You seem to be making two points. First, the legislative process is the only method by which the laws should be changed, and as a corollary, courts have no business making laws. Second, things have changed in the past, and that given enough time, everything will work out alright.
On the first point, the traditions of judge made law are incredibly deep in the Anglo-American tradition, and it seems implausible that the Constitution sought to eliminate it. As I mentioned in my original post, this notion gives my American sensibilities pause, as it does seem profoundly undemocratic to allow people who are not elected to make laws.
As to your second point, past performance is not predictive of future outcomes. I would argue that the notion that the Courts have been silent bystanders to the glories wrought by the legislator is an oddly skewed version of American history. Where I really think your analysis is problematic is that while you’re waiting for the voice of the people to cry out for change, a lot of people have to take it in the shorts.
Following the Supreme Court’s ruling in Brown, you’re right that Eisenhower sent in the Army to enforce the law. It’s also important to note Orval Faubus attempted to mobilize the Arkansas National Guard to resist. How long would it have taken the legislator of that state to come to the conclusion the Court did? Are you really going to suggest to the African American citizens of the State of Arkansas has to accept substandard educational facilities and opportunities while they waited for change?
John Rawls suggested in his seminal work A Theory of Justice that distributive justice can best be manufactured if you place yourself behind a “veil of ignorance.” Using this thought experiment, you have no knowledge of your social place or position in society when making the laws. As such, you certainly wouldn’t affirm the ability of a state legislator to allow for racial segregation in education or daily life, because once you take off the veil, you’re a minority. The Founders included a similar provision in the 9th Amendment, which states that “the enumeration in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people.”
But if we apply Scalia’s formulation, none of this matters. The was a contemporaneous omnipresence that was the running dog of the Constitution, and that is how all things are to be determined. Not based on outcomes, but in a slavish devotion to antiquated form. In this originalism is like nothing so much as a religion. As practiced by Scalia and his ilk, it is tautology. And because it is a taoutology, you’re never wrong if you’re an originalist. If you don’t like a law, you can beat it up with the Constitution, and if you do like it, you can fall back on the power of a duly constituted legislator to enact legislation. In short, I think originalism is a conservative party trick, which lets you tart up bigotry in an academic frock. I for one am not content to see my fellow citizens get flattened while waiting for public opinion to wind around to them.
Are you?
Ok, while Dr. Bombay certainly has waxed poetic about the ideals of judicial activism, its time for a reality check. His thoughts are pure, and if he ever sails off to a deserted island and begins his own country, I will be much more interested in how his utopian view of governance works. What is conspicuously missing from his ramblings is any reference to the only relevant and binding document, known as the Constitution (save one reference to the ninth amendment, which if my recollection serves me right has never been the basis for a single Supreme Court decision).
There is a reason for this, of course (other than that he hasn’t gotten to Con Law yet, unless they’ve switched around the curriculum). Rather, the reason is quite simple: Judicial activism flys in the face of the Constitution. While i could go on for pages as to why this is, it can best be summed up by the concept of judicial review. I beg the good dr. to cite to the provision in the Constitution which says that the Supreme Court’s understanding of the Constitution is somehow superior to the executive and the legislature. Yet, somehow this “power” has grown into the nonsense the majority spews in Lawrence v. Texas, where the justices so eloquently display this “fundamental right” stuff that got started in Roe. Does anyone really think that the founding fathers, that were so worried about checks and balances, wanted the nine unelected people with life tenure to be able to law the ultimate smackdown on the President or Congress with zero repercussions (check that, i guess congress could quit funding their westlaw accounts and cut off the A.C. in the summertime). I’m sure thats exactly what Jefferson and Washington were thinking and it just slipped their mind to not expressly grant the court such power…
The reality is that Dr. Bombay has no problem with the system because he tends to agree with the activist judges’ positions. He blindly follows their rationale without so much as a consideration for how flawed the judicial methodology is if, low and behold, he disagreed with the agenda. Take abortion for example…Rehnquist and company could have easily taken the position that a fetus was a person, and that all abortions were therefore unconstitutional. That would get Dr. Bombay whipped up in a frenzy, despite those judges implementing the exact same judicial philosophy as the activists.
What makes Scalia’s approach superior, and correct, is that it comports with the Constitution. The Constitution created a default majority rule government. Now, Dr. Bombay bemoans that this doesn’t always work, as the legislature does not always refelct the will of the people. And while i agree with him to an extent, i woudl tell him to look in the mirror. The reason the system is broken is because the FEDERAL government has expanded to about four times the size as intended by the constitution. Congress was originally a body of “enumerated powers,” that is until Dr. Bombay’s buddies decided that one of those enumerated powers, the commerce clause, was so broad as to grant Congress plenary power (way to go, FDR).
I realize that i have rambled and I apologize if it is marginally incoherent. My basic point is this…read the constitution. What was intended in our society was for most of these major decisions to be resolved by the default majority, namely the STATE legislatures and STATE courts. And if that were actually the case, we would live in a far superior country, as we would have as close to an equivalent to capitalism as a government can be.
One additional point bears mention. I strongly urge Dr. Bombay to actually read an opinion before labeling the author as intellectually dishonest and a hypocrite. When Scalia is saying homosexual agenda, he is referring to Stevens and co., which has no bearing on his opinion. What he simply is pointing out in Lawrence is that the judges take different approaches when certain issues (see abortion, homosexuality) take center stage. If you don’t believe me, compare the majority in Casey (where stare decisis is the end all be all) to the majority in Lawrence (where stare decisis gets sent packing)….another good one is the majority in Hill v. Colorado, where Dr. Bombay’s gang somehow upholds an anti-abortion protest statute that regulates the public streets as consistent with the First Amendment….
Sorry for the ramblings, but it had to be said.
We’re not talking about judge made law here, Doc. We’re talking about the death penalty, which was specifically enumerated in the Constitution. As Scalia rightly points out, the founders didn’t view death as cruel and unusual punishment, or they wouldn’t have formulated the Fifth Amendment the way they did by referencing “life”.
Judge made law is judge made law. Judges and the legislature can trump judge made law. But law made by the legislature flows from the people itself, not from a single individual, and should be given greater deference. Stevens’ personal views should have no bearing there.
The issue you seem to have is you dislike federalism. Your philosophy is that if 50%+1 of the population thinks something is a good idea, it should be the law. I disagree with that. This is not just a Union of people, it is a Union of States. Each state is far more homogenous than a the entire country. And what is right for Virginia may not be right for New York or Vermont or Colorado. You declaim the tyranny of the minority, but you only seem to think that the tyranny of the minority is a problem when it comes to racial discrimination. The system itself was designed with checks and balances for that reason.
As for the whole “I am not content to see my fellow citizens…” line, I would say that’s a lovely sentiment and one I agree with when I dream about utopia. In the real world, someone is always going to be taking it in the pants. Change doesn’t come overnight, unless it comes with a lot of people getting killed. There should be no short cuts when it comes to change societal opinions. Over time, the changes will happen.
Our system was designed to reflect the will of the people. If the people are wrong, so be it. Our system was not designed to be perfect or to make correct decisions all the time. As Winston Churchill said, Democracy is the worst system of government, except for all the others that have been tried.
I’m willing to accept whatever flaws may exist in the system because I believe that, on the whole, the system works better than anything else we’ve got.
Frankly, I don’t think there are any flaws in the process or the function of the system. The flaws occur when we insert fallible people into the mix. Welcome to planet earth.
Mojo, I would like to subscribe to your newsletter.
Mojo,
Before I wrote my last post, I did read the dissent in Lawrence v. Texas. I quote:
If you met someone on the street who was prattling on about a cabal of homosexuals collaborating to make policy changes, you might give them a dollar if you were drunk. Someone bloviating about it on the Supreme Court – even in dicta – should be run out of town on a rail.
Second, I’ll note that the difference in Casey and the Court’s application of stare and their decision in Lawrence (overturning Bowers) which ignored it is that Casey represents the affirmation of a right (as determined by the Court in Roe) and Lawrence represents the elimination of a legal bar to one (from Bowers). I think the distinction is an important one. Otherwise, the Court would have given due deference to the principle of law affirmed in Plessey v. Ferguson when hearing Brown v. Board of Education.
BigScho,
It seems odd to me that you offer up platitudes about the way the world works, and then simultaneously claim that somehow change just magically happens. I doubt very much that you would be so sanguine if you were the one having your rights trampled.
My rambling delusions to this issue would run as follows…
I’m sure Mojo and BigShow would attribute my wavering on orginalism to my unwillingness to accept the consequences of an otherwise sound judicial philosophy. And, indeed for quite some time I was willing to accept what I believed to be inequitable outcomes since it was, on balance, better to leave most questions to legislatures as the duly elected voice of the people.
There are two problems I’m wrestling with and, admittedly, these won’t really come to a head until Con Law next year. But first, is what role the Framers’ intent should play? And, second, what questions should judges actually answer?
On the first question, what happens when the system stalls? I grow increasingly concerned about the lack of any substantive action in Congress. And just like judicial inaction/restraint, legislative inaction, measured in outcomes, is a position that is growing increasingly unacceptable to my conscience. Yet it seems that Mojo and BigShow would have me leave more and more questions to the legislature at the same the legislature is refusing to act on them. Judges shouldn’t step in to become a kind of quasi-legislature, but simply saying elect the right candidates is naive. Mojo probably touched on the primary cause here in pointing to government’s size – this is as much to do with legislatures’ lust for power as it does with the legislatures’ willingness to throw money at problems rather than actuall fixing them.
While I am not willing to go so far as Dr. Bombay in trusting the erudition of unelected judges, we must likewise exercise caution in swinging the other way (toward Scalia/Mojo/BigShow). Simply because Scalia pays lip service to the intentions of the Framers does not mean he refrains from imposing his own (unelected and unaccountable) personal philosophy on the law. While it’s attractive to think that judges subordinate their will to the views of Adams, Washington, Jefferson, Paine, Hamilton, Burr, et al, it’s hard for me to believe that judges actually do it consistently (or that these men actually speak with one voice). Today’s judges appropriate the Framers’ rhetoric when it serves their interests… just like the rest of us.
Due deference should indeed be paid to the constitutional design and the wills of legislatures. In fact, it should be the bookends of constitutional inquiry. But judges should not shy away from exerting their role as constitutional arbiters of a flawed system, particularly when legislative inaction creates outcomes that are far from acceptable. That’s what we apppoint them to do. And so long as they are “cautious and practical” (in the words of the Chief in today’s NY Times), I am comfortable with the outcome.
Is there a bright line rule for me here? No (unsurprisingly). But I know caution and practicality when I see it.
Okay I am going to bang through these points rather quickly, as I really can’t afford to get fired. So I apologize in adavance if they don’t make as much sense as they could….
Dr. Bombay:
Lawrence – you miss my point. My point is that the passage that you focus on is irrelevant. It has no bearing on the substance of Scalia’s opinion, or the soundness of his logic. He throws in passages like that because that’s who he is…its not enough for him to write an intellectually superior opinion, he’s gotta get his digs in on the other side. I, for one, find it mildly amusing but otherwise inappropriate. But again, I invite you to argue the substance rather than focus on the inflaming comments. My gut tells me you don’t argue the substance, because deep down you know Scalia is right. To read the 14th amendment as creating some “fundamental right” to prevent legislatures from making sodomy a crime is ludicrous. If you don’t like it, fine. Pass a law saying its legal. This is properly an issue for STATE legislatures, which obviously would give you the option to move to a state that permits sodomy if thats your cup of tea. Scalia refers to it as the homosexual agenda because there is a sect of legal professionals on some conquest to create a fundamental right that simply does not exist in the Constitution.
Casey/Lawrence distinction – this is largely semantical and a weak attempt at justifying blatant judicial consistency. Whether the procedural context is “affirming” a right, or preventing a legal block to one, the dispositive issue is whether the right exists in the Fourteenth Amendment. The court had already decided that the right did not exist in Bowers, and under the precedent set forth in Casey, which opined on how important stare decisis is, the same justices should have affirmed Bowers…thats all Scalia is saying
Plessy/Brown – this is exactly Scalia’s point. Their whackfest in Casey to stare decises was bs. And on antoher note, I know that Scalia has come out and said that he would have concurred in Brown on Equal Protection, rather than substantive due process, grounds.
Sherpa, two points:
1 – on the legislative stall concept, the main reason it stalls is because the legislative system as we know it today doesn’t operate as the constitution set it out to operate. If you read the constitution, Congress is only supposed to do enumerated things. However, this concept was obliterated by FDR and his brilliant court-packing scheme to get a bunch of justices to read the commerce clause to allow congress to do basically anything it wants. And whats the result? A federal government that is four times the size as it should be, doing all sorts of stuff it was never intended to do, doing it horribly inefficiently, and at the taxpayers expense. In reality, the founding fathers knew what they were talking about…they left the majority of the legislating to the states. This would be more efficient, as there is more accountability in the state legislatures (since you represent less people). If laws started to get passed that you didn’t like, don’t go cry to the supreme court or other judges…get the laws you want passed, or if that becomes impossible, move to a state that better suits your fancy…revolutionary concept, huh?
2 – “But judges should not shy away from exerting their role as constitutional arbiters of a flawed system, particularly when legislative inaction creates outcomes that are far from acceptable. That’s what we apppoint them to do”…..again, just like the good dr., i challenge you to support that statement with anything in the Constitution. Where in the constitution does it say a judge has the power to correct legislative inaction? This is the fundamental flaw with judicial activists…its simply not in the Constitution. It was created by a bunch of intellects who think they know better than everyone else and should be allowed to put the majority in its place. Newsflash – that is fundamentally unconstitutional and unamerican.
All good points Mojo. Hopefully, you’ll be able to appeal to an elected Board of Directors to keep your job and not your unelected boss…
On #1… I don’t disagree with your argument. I’ve made it countless times. I wrote my senior undergrad thesis defending it. I’m simply asking whether we’re at the point where this concept doesn’t work anymore and we need to re-assess the restraintist view of the judiciary? I guess it’s better stated as asking: is there ever a point at which you grant that you will not succeed in reversing the size and scope of government and thereby require a powerful judiciary to rein in what is, on its face, a corrupt, elected legislative power?
On #2… I just read the constitution. It strikes me that Article III is vague enough that you could find a rather expansive role for the judiciary in our constitutional republic. The act of settling disputes that arise under the laws is, at times, making law by interpreting it. Just as deferring to the legislature is, at times, making a law or, for instance, discerning the legislative intent behind conflicting statutes. The point is that the constitution is far from clear on the extent of the judicial power, as the battle about the judiciary which ensued after its ratification indicates.
The difficulty is that the Judiciary is unlikely to reign in the Congress – it doesn’t want to get into a war with the people who fund it. As I said before, Congress is the first among equals within our government, and the most likely reason (other than the fact that it is the only body that directly represents the people) is because it controls the money. Secondarily, it controls the Judiciary’s jurisdiction, other than the original jurisdiction in the Constitution. Piss off Congress and it will cut your funding or take away your jurisdiction.
The closest the Court has come to reigning in the government recently was Lopez, and even that wasn’t that significant.
The only way to stop the growth of government will be for the American people to determine that government has grown too large and to task their elected officials with cutting it. There’s no short cut.
Change doesn’t “magically” happen. It is the product of years of education and slowly evolving sensibilities. Things that were a huge issue a hundred years ago – like prohibition, civil service reform and direct election of Senators – are givens today. And I’m sure that in 100 years, things like abortion, stem cell research, and gun control won’t matter at all, and people will look back in bewilderment as to how we ever thought they were that important.
The judiciary was not designed as a short cut.
The point is simply that our system is designed for the will of the majority to rectify the issue of a corrupt, broken legislature. It is not the judiciary’s role, and our constitution reflects that.
It actually saddens me, but does not suprise me, that someone such as Dr. Bombay believes somehow that democracy doesn’t work. Most that share his left of center political beliefs feel the same way. Lets elect a bunch of educated, smarter than the average citizens into office, give them 70% of our paycheck, and watch them magically fix all of our problems. And in case that doesn’t work, we’ll appoint some guys with advanced degrees in black robes to insure that our specific beliefs get forced on the american public whether they like it or not.
Any way you slice it, the “conservative” justices’ approach best conforms to the structure of our consitution and our government. Scalia and co. do not force their beliefs on anyone…if they had their way, the states would be doing most of the legwork and everyone would have a say. And i have yet to hear one sound argument as to how that is inconsistent with our constitution.
To say that judicial review is constitutional, and should be weilded like a battle ax the way that recent justices’ have used it, based on the fact that Article III can be interpreted as “vague” is some pretty low-grade lawyering if you ask me. Nothing in the constitution gave the supreme court the right to ordain its interpretation of the constitution as somehow superior to that of the other two branches of government. I am sure that in certain sitautions, where it is unavoidable, the only way the government works is for the court to win out. However, to make it commonplace in our jurisprudence, which it is, is embarassing.
This may certainly be the case, though even where the people chose that (arguably, the 1994 GOP takeover), it didn’t happen. So my question is whether you would agree or disagree that expansive government power by definition is resistant to change and, in most ways, unaccountable to the people it purports to represent?
If you agree, then this argument that elections is the way to go, fails to appreciate how large governments are (or become at some point) unaccountable. Isn’t that the real world? This it seems is how many of the Founders viewed the question. And, therefore, my question remains. If you disagree, you must grant, it seems, that the American people have chosen our current government which would include its scope AND the jurisdiction granted to the courts by the people’s representatives (in their failure to amend the courts’ jurisdiction).
This is where I perceive the proverbial fork in the road to exist and as the central issue in jurisprudence right now. It’s also one that I look forward to exploring in Con Law and haven’t thoroughly considered anew.
Gentlemen (and ladies if any are present), in my readings of this blog, several things have become clear:
1. Dr. Bombay, like many in his political party, believes that any hope for our salvation lies in the wisdom and benevolence of the chosen few.
2. All of you must have scored quite high on the verbal sections of any standardized tests you completed.
In addition, several things have thus far been omitted from this discussion:
1. Dr. Bombay’s move to acquire Dontrelle Willis in 2007, the impact of which has set his fantasy baseball team back at least 3 years. Now, while this does not necessarily invalidate his arguments, it does call into question his ability to analyze things and arrive at sound conclusions.
2. The views expressed by Dr. Bombay do not necessarily reflect the views of the CKBL or its sponsors.
Commissioner,
Valid points all. In keeping with your distain for the educated, I’m sure you’ll agree that your years of education mean nothing, and you’ll support my initiative to allow anyone to get psychotropic drugs from vending machines.
I’ll also note that we still have a debt to be settled over Dontrelle Willis, and it will be paid in blood.
ugh. i posted a response to mojo. but not sure where it went.
you’re right: article III is not vague. it’s broad. it grants to the sup ct all judicial authority over legal controversies. this will naturally result in the court invalidating acts by the other branches that violate the constitution. that’s hardly “nothing.”
Mr. Sherpa, you are building in assumptions into your argument. You presume that somehow the court’s understanding of the constitution somehow trumps Congress in order to “invalidate acts by other branches”
In other words, you dont have a legal controversy without such a presumption. And my point is that such a presumption is stated nowhere in the constitution. So if it exists at all (which we all just kinda take for granted at this point), shouldn’t it be reserved for the most exceptional of circumstances considering it is highly suspect to begin with?
Sherpa, what I would argue is that, for whatever reason, the only people who really concern themselves with government, the size of government, and the philosophy of government are either lawyers, legislators or conspiracy theorists. The first two groups have a vested interest in seeing the government remain the size it is, if not growing, and the third group is spending too much time googling the melting point of steel to make a meaningful contribution to the debate.
It was argued in the ratification debates that each branch of the government would be responsible for policing the other when it came to questions of a Constitutional nature. It wasn’t just for the courts to police the other branches and itself – Congress and the Executive were supposed to zealously check the other if and when they attempted to usurp powers not enumerated or expressly forbidden. Unfortunately, this never really materialized, and that’s one of the reasons why SCOTUS stepped in to do it.
I also think we need to keep in mind that the primary point of this entire line of argument is that Bombay is a filthy hippie.
“I also think we need to keep in mind that the primary point of this entire line of argument is that Bombay is a filthy hippie.”
That’s the smartest anyone has ever said on this blog.
Hippies wear tie-dye and smoke lots of weed. I do neither of these things. I much prefer the term “Lefty Intellectual.”
Since we’re hurling invective, I’ll be amending BigScho’s bio to note that he is a “Right-Wing Reactionary” whose fondest wish is to use the 4th Amendment as Toilet Paper.
“I do neither of these things.”
It’d be a lot cooler if you did.
Scalia is my homeboy. Thank you, that will be all.
Gonzalez v. Raich. Commerce clause was used to regulate homegrown medicinal marijuana in California (under the Controlled Substances Act). Total overstepping the bounds of federal power?
Not in the eyes of one Antonin Scalia. He concurs under the necessary and proper clause. Where is his originalism? He sent it packing because he’s a good Catholic boy who hates drugs. Funny how he strictly reads the constitution and then uses one of the broadest phrases in the entire document (the old necessary and proper chestnut) to foist his own views on to the state of California.
I’m sure the little bust of Thomas Jefferson or whatever other “federalist” he adores he keeps in his office cried real tears that day.