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Government Power

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123456
from: Jeffrey Rosen
to: Eugene Scalia, Esq.

Posted Friday, Sept. 12, 1997, at 3:30 AM ET

Dear Gene,

I've enjoyed our dialogue, and am delighted that we've ended up agreeing on so many of the points that initially divided us. In particular, we now seem to agree that Chief Justice Rehnquist and Justices Scalia and Thomas betrayed their methodological principles in cases involving congressional power. I began by confessing that I couldn't imagine a way of reconciling the justices' devotion to the original understanding of the Constitution with their efforts to take seriously constitutional limits on Congress' power. In your last post, you confess that you can't imagine a way of reconciling the conflicting impulses, either. Instead, you agree with my initial suggestion that the justices in the Lopez case made a pragmatic decision to ignore the original understanding of the Commerce Clause because they realized that striking down the entire post-New Deal regulatory state would be a very disruptive and mischievous thing to do.
By pointing to the conflict between originalism and pragmatism in cases involving congressional power, I certainly didn't mean to suggest that the court should have chosen originalism, and revived the crisis of 1935. You're right, of course, that any defensible effort to define the limits of Congress' power in 1997 should respect the intricate fabric of judicial precedents and political practices that have evolved since the New Deal. The problem is that respect for precedent isn't something that the originalist justices are ordinarily very concerned about. In a whole range of cases--and the effort to overturn Roe vs. Wade is only the most famous example--Justices Rehnquist, Scalia, and Thomas have insisted that the court repudiate decades of precedents that the country has come to accept, because the Constitution itself, rather than judicial misinterpretations of it, is the supreme law of the land. But if Roe vs. Wade should be overturned, why, by the same logic, shouldn't the court also overturn the New Deal cases that expanded the scope of the Commerce Clause beyond its original understanding? Since the three justices haven't given us a coherent theory of when, precisely, precedent should trump original understanding, it's hard to avoid the suspicion that their answer is driven by ad hoc policy judgments rather than by principle. You ask which camp I'm in. As I said earlier, I thought Chief Justice Rehnquist was right in the Lopez case. By what theory of constitutional interpretation was he right? On grounds of precedent alone, Rehnquist plausibly claimed that the Gun Free Schools Act violated the principle, first declared in 1937, that laws had to "substantially affect" interstate commerce to pass muster under the Commerce Clause of the Constitution. In the academy, where most scholars, I think, agree with Lopez, there are sophisticated efforts to defend the result as an exercise in constitutional "translation," adapting the original understanding of the Commerce Clause to a post-New Deal world. But these arguments involve many fancy steps, and they would hardly satisfy a justice who says he or she believes that the Constitution today should mean precisely what it meant in 1789 or 1868. If respect for precedent is enough to justify a constitutional decision, then Justice Scalia's excursion into original understanding in the Brady case was unnecessary. The court could have struck down the Brady Bill with far less fuss by simply invoking the authority of New York vs. United States, the 1992 case in which Justice O'Connor held that Congress can't commandeer the states' legislative processes by directly compelling them to enact and enforce a federal regulatory program. But should it have struck down the Brady Bill? This leads me back to the second question I posed at the beginning, and the one I'll ask you to address at the end: What about judicial restraint? The conservative judicial revolution was founded on two competing principles, both of which often point in opposite directions: the importance of original understanding and the importance of judicial restraint. The congressional-power cases, we've agreed, can't be reconciled with original understanding. But don't you also agree that they can't be reconciled with judicial restraint? I don't have any easy answers to the dilemmas we've discussed. But I do think they put people who consider themselves judicial conservatives (like you and me) in an awkward spot. Thanks again for an engaging dialogue.

Best regards,
Jeff Rosen

dialogues
entries
123456
from: Jeffrey Rosen
to: Eugene Scalia, Esq.

Posted Friday, Sept. 12, 1997, at 3:30 AM ET
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Jeffrey Rosen is legal affairs editor of the New Republic and associate professor at the George Washington University Law School. Eugene Scalia is an associate with the law firm Gibson, Dunn & Crutcher LLP.
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