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Tuesday, June 14, 2005


the raich decision

mark moller of the cato institute has an insightful analysis of the scalia vote in broadening the scope of the commerce clause.

A complete picture of the mind of Scalia must also take into account his theory of judging, laid out in a 1989 University of Chicago Law Review essay entitled "The Rule of Law as a Law of Rules." In it, Scalia professes his dislike for rulings that give future courts broad discretion. That dislike colored his vote in Raich.

Scalia's basic philosophy of judging is one of judicial restraint achieved by deciding cases, where possible, according to clear "rules" rather than vague standards. "When," he says, "I adopt a general rule, and say, 'This is the basis for our decision,' I not only constrain lower courts, I constrain myself as well. If the next case should have such different facts that my...preferences regarding the outcome are quite the opposite, I will be unable to indulge those preferences; I have committed myself to the governing principle."

Thus, he writes, good judges should read the Constitution in a way that constrains future courts to a mechanical menu of decisions.

Scalia's preference for rules carried the day in Raich. Remember: Before Raich, the Court's Commerce Clause cases asked judges to brake Congress when it tries to regulate local conduct that doesn't "substantially affect" interstate commerce. Yet, deciding when conduct "substantially affects" commerce is hardly a mechanical exercise. Taken seriously, it requires hard calls and may yield unpredictable results.

Scalia himself made this point in "The Rule of Law as a Law of Rules," where he expressed "hope" that the Court would give up efforts to restrain legislation under the so-called "Dormant Commerce Clause," which asks courts to restrain state laws that burden interstate commerce. As he explained, deciding whether state laws "affect" interstate commerce "to an excessive degree" is a "standardless" inquiry.

of course, that isn't the entire story. there are many possible rules that one could adopt with the intent of future conformity. scalia chooses that which does most to maximize the power of the more democratic branches of government and minimize the authority of the courts.

moller goes on to claim that this desire for uniformity is antithetical to freedom, but i've said before that -- while antithetical to freiheit -- appropriate systemic law jealously guarded by institutions is actually the sole guarantor of meaningful liberty. scalia, for his part, is doing his level best to undo that law of tradition and the institutions that guard it to manifest his ideas of freedom in an idealistic system that he invented ex nihilo -- standing against both civilization and moller's even-less-lawful disposition of anarchism.

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