by Matt Barr

Making hay

Speaking of appealing to consequences, much of the criticism I've read of Raich, including that of Prof. Barnett, Raich's lead counsel, has lamented that Messrs. Justice Scalia and Kennedy did not foresee that their votes for the government would be disappointing to libertarians and federalists, and adjust them accordingly.

Scalia, in particular, is a "fair weather federalist" now, who

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.

Paragraph break added. In its purest, less scholarly form, the charges of hypocrisy are grounded not in Scalia's previous Commerce Clause jurisprudence, but cases like Lawrence v. Texas. (It can't be grounded in a belief Scalia always votes to support the war on drugs, because he clearly doesn't, as Prof. Kerr explains.) The Neolibertarian Network blog, which doesn't have permalinks, excerpted with approval a blog post from someone called The Queen of All Evil exposing the blatant two-facedness of believing the constitution does not delegate to Congress or prohibit to the states the power to regulate sodomy, but that it does delegate the power to Congress to regulate interstate commerce, and pass laws necessary and proper thereto. Right; I don't see it either. It's more a catharsis than an argument, and unfortunately, that's the norm, and it's what creeps onto otherwise more measured, thoughtful blogs.

I think the five-Justice bloc that joined Stevens' opinion got it quite wrong. The facts of Raich do not support a conclusion that the activity is a substitute for (regulatable) market activity, and Wickard is misread if it's relied on for the proposition that Congress may reach substitutes for market activity anyway.

I also believe, as I've made clear, that the federal government should not make war on recreational drug use (and certainly not medical drug use). I conclude that not because it doesn't have the power, given the interstate and international nature of trade in drugs, but because the federal government has more important things to do than to play doctor, schoolteacher and mom to its constituents. It's not so radical a thought, so it's strange that you don't hear it much: The federal government shouldn't do everything it has the power to do.

Supposedly, I share this belief with libertarians of many stripes, but all you hear lately is that the federal government is powerless to do anything the critic doesn't like. As I've written and will probably continue to write, that's the other side of the "living constitution" coin libertarians so despise. We rightly fight the notion that the constitution allows whatever do-gooders want to do; but when we insist it prohibits whatever we disagree with, we're in the same boat.

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