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

Posted Saturday, Sept. 20, 1997, at 3:30 AM ET

Dear Jeff:

I, too, have enjoyed our exchange, which has concerned two subjects. The first--the titled subject of the exchange--has been "government power," and particularly congressional power and the Supreme Court's renewed effort to ensure that Congress acts according to its limited, enumerated powers. On this aspect of our exchange, we do appear to agree: The court is being more attentive, and should be, to the limits the framers envisioned on congressional power.
Your agreement on this point is welcome. Some observers have charged that the Supreme Court has become too aggressive, and politically conservative, in scrutinizing federal power. It should reassure the general reader that the legal affairs editor of the New Republic thinks the court's renewed vigor is appropriate; and that, in the leading Lopez case, dissenting Justices Stevens, Souter, Ginsburg, and Breyer were wrong.
The second subject of our exchange has been of special interest to you--the court's "methodology" in these recent cases concerning congressional power. You have argued that if Chief Justice Rehnquist and Justices Scalia and Thomas had been true to their "methodological principles," they would have gone further in the Lopez case and overruled a line of cases dating back 60 years, thereby holding much of the current federal government to be unconstitutional. Your argument fails, however, for reasons I gave in my earlier submissions and for the additional reason that the Lopez case could be decided as it was, in a manner consistent with the original understanding of the Constitution, WITHOUT overruling prior case law.
This brings me to "judicial restraint," the subject you concluded with and on which I will conclude as well. Conservatives value judicial restraint because they believe that in a democracy, elected representatives (not unelected judges) should determine how we will be governed, except where the Constitution indicates otherwise. Interpreting the Constitution according to its "original understanding" does not conflict with judicial restraint, as you suggest; on the contrary, originalism literally "restrains" judges, who thereby review laws according to fixed constitutional meaning and not their personal perceptions of Fairness and Social Improvement and how the Constitution can be used to get there.
Respect for the original understanding of the Constitution is a critical part of judicial decision-making, but it is not the sole consideration, and no "originalist" justice has said it is. Similarly, no originalist justice has suggested that stare decisis (essentially, respect for precedent) be the court's sole consideration. (Thus, your suggestion that hesitation to go out of the way to overrule precedent in one case [Lopez] compels leaving undisturbed another case [Roe vs. Wade], and altogether precludes considering originalism in a third case [the Brady Bill case], cannot be taken seriously.) I concede that determining where to strike the balance between respect for the Constitution's original meaning and respect for precedent is sometimes a difficult part of constitutional decision-making. But you and I--as professed "judicial conservatives"--should look on the Supreme Court's recent congressional-powers cases with satisfaction at what I described in my first submission: The decisions "caus[ed] little if any disturbance in prior case law," yet "signal[ed] new resolve to enforce constitutional limits. Had the court ruled otherwise, the game would have been up; holding as it did, the court maintained a stable foundation from which it may approach more difficult questions of federal power."
I know that we both will watch for the court's future decisions in this area with interest.

Gene Scalia

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

Posted Saturday, Sept. 20, 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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