by Beverly Mann
from The Annarborist
A Scalia Tea Leaf on the Healthcare Law?
Judicial decisions, like the Constitution itself, are nothing more than “parchment barriers,” 5 Writings of James Madison 269, 272 (G. Hunt ed. 1901). Both depend on a judicial culture that understands its constitutionally assigned role, has the courage to persist in that role when it means announcing unpopular decisions, and has the modesty to persist when it produces results that go against the judges’ policy preferences. Today’s opinion falls far short of living up to that obligation—short on the facts, and short on the law.
—Antonin Scalia, yesterday, dissenting in Michigan v. Bryant
The tea-leaf-reading on how two or three of the justices will vote on the constitutionality of the PPACA has become a bit tiresome, I think, but I’ll engage in it here anyway.
As most people who’ve followed the issue closely know, in 2005 the Supreme Court held (in a case called Gonzales v. Raich) that Congress had the authority under the Commerce Clause to criminalize the production and use of marijuana even when the marijuana is home-grown and used only by the grower, and therefore never enters interstate commerce, because marijuana grown for the personal use can have a substantial effect on the marijuana trade in interstate commerce.
Also as people who’ve followed the PPACA-constitutionality tea leaf-reading debate know, Scalia wrote a separate opinion in that case concurring in the majority’s result. The Commerce Clause alone, he said, does not give Congress that authority, but that Clause coupled with the Necessary and Proper Clause—the clause that gives Congress the power to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof,” including the power to regulate interstate commerce—do.
A fine distinction that only constitutional law nerds think about, but it is the distinction that is at the heart of the debate about the constitutionality of the PPACA.
Michigan v. Bryant is not a Commerce Clause case. It is a Sixth Amendment Confrontation Clause case. The Sixth Amendment gives criminal defendants certain specific rights, including the right to confront (i.e., cross-examine) the prosecution’s witnesses under oath at trial. And seven years ago, in a case called Crawford v. Washington, the Court reversed a 1980 opinion that had carved out a chasm of an exception to that right by allowing the admission of hearsay statements if the statement bears “adequate ‘indicia of reliability.’ ”
Scalia wrote the Crawford opinion. Since then Scalia has been at the forefront of the Court’s expansion of Crawford to kill prosecutors’ use at trial of various types of hearsay evidence, and apparently had been able to run interference internally within the Court to kill attempts by prosecutors to overturn Crawford at least in part. Until yesterday, when he lost that battle to, of all justices, Sonia Sotomayor.
Scalia, in a dissent eloquent both in its logic and its passion, masterfully deconstructs Sotomayor’s opinion. I recommend it to anyone who’s interested in issues of this sort or who wants to see Scalia in a context beyond the sort of public caricature he has, seemingly deliberately, become. That opinion is very understandable to non-lawyers, I think.
But its importance to the issue of the constitutionality of the PPACA is not just the paragraph I quoted from it but that he wrote it in defending a constitutional right dearer to the political left than to the political right. The paragraph is the second-last one. The very last one says:
For all I know, Bryant has received his just deserts. But he surely has not received them pursuant to the procedures that our Constitution requires. And what has been taken away from him has been taken away from us all.
Lifted from an e-mail from Beverly Mann, the following is a short explanation and links to relevant cases concerning the words of Justice Scalia as reported in California Lawyer, second question down from the beginning about the 14th amendment and sex discrimination.
Beverly Mann writes:
Scalia: Only African-Americans Have Second Amendment Rights Against States!
Here are the two sections of the 14th Amendment that are relevant today:
Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
The drafters of the Amendment clearly had intended that the privileges-and-immunities clause make all of the Constitution’s rights that accrue to individuals—all the rights in the Bill of Rights, and such rights that are in the original Constitution (e.g., habeas corpus, the bar against ex posto facto applications of laws, the prohibition of bills of attainder)—apply as against the states (and local governments, which are incorporated or in other ways operate under state law) in the same manner in which those rights apply as against the federal government. The language of the clause is clear; that is what the clause means.
But in 1873, the Supreme Court, in an opinion known as The Slaughter House Cases, effectively nullified the privileges-and-immunities clause. Early in the 20th century, though, the Court began taking specific provisions of the Constitution that grant rights to individuals and, in separate Supreme Court opinions, “incorporating” one after another of those rights to apply to individuals as against state and local governments—but only those provisions that grant what the Court itself pronounces a “fundamental” right; they’ve never held that the entire Bill of Rights applies as against state and local governments.
This is known as the “incorporation” doctrine. And of course it makes the justices the overt arbiters of what is a fundamental constitutional right and what is a constitutional right that is not fundamental and that therefore is a constitutional right that is not sufficiently fundamental that it limits state and local government power just as it does the federal government’s power.
This ongoing gimmickry became a hot issue in some legal circles last year when the Court agreed to hear a case called McDonald v. Chicago in order to decide whether the Second Amendment (gun-ownership rights) bars state and local governments from enacting laws that infringe upon what the Court two years earlier had held, in a case called
District of Columbia v. Heller is a right of the individual, under the Second Amendment, to “bear arms.” Because the District of Columbia is not a state but is instead part of the federal government, the anti-gun-ownership ordinance at issue in Heller did not address whether this Second Amendment right that individuals now have to bear arms is a fundamental one and therefore applicable as against state and local governments. That was supposed to be, and turned out to be, the issue in McDonald, which concerned a Chicago ordinance.
But while McDonald was pending at the Court, several groups and pundits, some of the left, others or the right, began suggesting (including in one or two friend-of-court briefs filed with Court by organizations) that the Court simply overrule The Slaughter-House Cases opinion and reinstate the privileges-and-immunities clause to its original and textual meaning. In 1999, in a terrific opinion by Justice Stevens in a case called Saenz v. Roe, the Court actually did rely on the textual meaning of the privileges-and-immunities clause, and it appeared to signal a return of the clause to its original meaning and intended usage. (Rehnquist and Thomas dissented from the opinion, but Scalia did not.) But the Court never again used the privileges-and-immunities clause. Civil-libertarians of the right and left hoped the Court would use McDonald to formally reinstate the clause’s original meaning.
But it didn’t. Instead, the 5-4 opinion simply decreed the Second Amendment right of individuals to bear arms a fundamental constitutional right (surprise!) and therefore one that state and local governments can’t abridge.
Scalia, unlike Thomas, claims to be first a “textualist,” someone who bases his interpretations on the plain language of the provision in the Constitution or statute at issue, and only second an “originalist.” Except, that is, when the text clearly says something that doesn’t serve the interests of Scalia’s political ideology. So the words “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws” actually mean “nor shall any State deprive any corporate person, Republican presidential candidate, religious person, or person who owns property whose value has been significantly reduced by local zoning or state environmental laws, of life, liberty, or property, without due process of law; nor deny to any such person within its jurisdiction the equal protection of the laws.”
OK, and black persons are protected, too.