How Scalia Distorts the Framers

[marmar]

from Consortium News:



How Scalia Distorts the Framers
July 4, 2012

Exclusive: In rejecting the Commerce Clause as the constitutional foundation for the Affordable Care Act, the Supreme Court’s right-wing justices distorted America’s founding narrative, including one made-up view attributed to Alexander Hamilton, writes Robert Parry.

By Roberet Parry


Antonin Scalia and the three other right-wing justices who sought to strike down health-care reform cited no less an authority on the Constitution than one of its key Framers, Alexander Hamilton, as supporting their concern about the overreach of Congress in regulating commerce.

In their angry dissenton June 28, the four wrote: “If Congress can reach out and command even those furthest removed from an interstate market to participate in the market, then the Commerce Clause becomes a font of unlimited power, or in Hamilton’s words, ‘the hideous monster whose devouring jaws . . . spare neither sex nor age, nor high nor low, nor sacred nor pro­fane.’” They footnoted Hamilton’s Federalist Paper No. 33.

That sounds pretty authoritative, doesn’t it? Here’s Hamilton, one of the strongest advocates for the Constitution, offering a prescient warning about “Obamacare” from the distant past of 1788.

Except that Scalia and his cohorts are misleading you. In Federalist Paper No. 33, Hamilton was not writing about the Commerce Clause. He was referring to clauses in the Constitution that grant Congress the power to make laws that are “necessary and proper” for executing its powers and that establish federal law as “the supreme law of the land.” ...............(more)

The complete piece is at: http://consortiumnews.com/2012/07/04/how-scalia-distorts-the-framers/

[Igel]

1. People like to find problems.

If the commerce clause--in section 8 of the Constition, which includes the necessary and proper clause--is really as far-reaching as some say, then it would become what Hamilton ridiculed his opponents as saying the necessary and proper clause would be.

Hamilton's point was that the necessary and proper clause was not all-encompassing. If the fears that others had about the clause then, perhaps, it could be called a hideous monster. but it couldn't be because it wasn't unlimited. His opponents were wrong in calling it that.

Scalia's saying the same thing: If the commerce clause is as all-encompassing as some say, then it could be a hideous monster that would devour all. His very point, however, is that it is not a devouring monster but, as Hamiton said about the necessary and proper clause, limited. I think parallelism is very neat and tidy and a dandy rhetorical device. It assumes you know the allusions, though, and how to construe parallelism.

As for the word game that the OP writer engages in, it's not hard, using a decent dictionary, to show that a word can mean all sorts of things that native speakers would recoil at. Nearly every word in a language has more than one meaning (people use jargon, in fact, to proscribe polysemy to make their texts less pliable). If every word in every context has every possible meaning, and every every word embedded in every meaning has every possible meaning (and we allow recursion), then anything can mean pretty much anything. The essence of PoMo babbling.

It's not hard to show that the commerce clause precisely grants the federal government the right to govern sexual relations--ban those it doesn't like, tax them, or even (since 'regulate' means 'direct') prescribe them. After all, 'commerce' can mean 'sexual intercouse.' Yeah, it's a silly claim--but if you want your rules of construction to be that expansive, that ad hoc, when it suits you you've basically sold your armor and hocked your shield and left yourself defenseless against silly claims. If you don't want to say "amen" to the zurg-rush that would immediately follow, then all that's left is to say, "We have the rule of law, but laws only as the right men define them." Which isn't the rule of law at all. Better to have decent rules of construal.

[Fortinbras Armstrong]

2. Except that Scalia is quite prepared to use the Commerce Clause

in exactly the same way when it suits him. I direct you to the Supreme Court decision of Gonzales v. Raich, 545 U.S. 1 (2005), about a woman in California who was growing marijuana for medicinal uses, which was legal under California law, but illegal under Federal law. She was not selling it, nor was she even giving it away, nor was it taken out of California.

An opinion was written by Scalia, who based the decision against Raich under the Interstate Commerce clause of the Constitution and the Necessary and Proper Clause, saying

Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective. As US v. Lopez, 514 U.S. 549 (1995) itself states, and the Court affirms today, Congress may regulate noneconomic intrastate activities only where the failure to do so "could ... undercut" its regulation of interstate commerce. ... This is not a power that threatens to obliterate the line between "what is truly national and what is truly local."

Interestingly enough, Justice O'Connor based her dissent on the same case Scalia based his concurrance, Lopez. She said that Lopez placed limits on Federal use of the Interstate Commerce clause and Raich's use of marijuana came under those limits.

Clarence Thomas, of all people, said that the majority was wrong, saying that Raich grew and used

marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. 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. ... By holding that Congress may regulate activity that is neither interstate nor commerce under the Interstate Commerce Clause, the Court abandons any attempt to enforce the Constitution's limits on federal power.

Thomas wrote: "The Necessary and Proper Clause is not a warrant to Congress to enact any law that bears some conceivable connection to the exercise of an enumerated power". He went on to say "Congress presented no evidence in support of its conclusions, which are not so much findings of fact as assertions of power," and concluded: "Congress cannot define the scope of its own power merely by declaring the necessity of its enactments".

The gist of Thomas' dissent comes straight out of original intent:

Respondent's local cultivation and consumption of marijuana is not "Commerce ... among the several States". Certainly no evidence from the founding suggests that "commerce" included the mere possession of a good or some 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.

I believe that here, Thomas is quite right, and Scalia only really supports "original intent" when he agrees with it.

[kemah]

3. These men just use the Bible and Constitution to push their agenda

They have an agenda and find snippets to justify their believes.