Raich and Judicial Conservatism on the Rehnquist Court
33 Pages Posted: 26 Oct 2005
This Essay contributes to a symposium on the U.S. Supreme Court's 2005 Commerce Clause decision Gonzales v. Raich. It focuses on the debate between Justice Scalia's separate concurrence and Justice Thomas's dissent. These opinions highlight an important tension among self-styled judicial conservatives - between originalists and judicial minimalists. Thomas's dissent represents originalism; it approaches constitutional interpretation primarily as an exercise in identifying and then applying the original public meaning of the controlling constitutional text. Scalia's concurrence represents minimalism; it presumes that the primary goal of constitutional interpretation is to minimize the policy-making discretion of judges, with such tools as a strong form of precedent, bright-line rules as opposed to standards, and deference to political branches. The Essay confirms the distinction by showing how Thomas and Scalia have been waging a rivalry between these two approaches across the Commerce Clause, the dormant Commerce Clause, the Tenth and Eleventh Amendments, section 5 of the Fourteenth Amendment, and the Necessary and Proper Clause.
This Essay should useful to scholars for three reasons. First, wholly separate from the Essay's thesis, it provides a concise and useful reference for anyone interested in understanding how original meaning textualism applies to the main constitutional-federalism doctrines. Second, descriptively, this Essay identifies some important limiting conditions in which the Rehnquist Court's New Federalism was possible. The Court's three most conservative Justices could support the New Federalism project only when a particular doctrine satisfied both the requirements of originalism and those of minimalism.
Finally, the Essay concludes that judicial conservatism, understood as a political movement to change the course of constitutional interpretation by the federal courts, is simply not a unified or coherent project of constitutional interpretation. To demonstrate, the Essay shows that originalists and minimalists take fundamentally different attitudes to what some critics have called the Constitution in Exile project. Although originalists are sympathetic to this project, minimalists most assuredly are not. Given that Republican judge-pickers either do not understand or do not care about the differences between originalists and minimalists, there is no serious chance that even the most determined effort to pack the Supreme Court with judicial conservatives will restore the so-called Constitution in Exile.
Keywords: Raich, Lopez, Commerce Clause, federalism, constitutional interpretation, original meaning, originalism, minimalism
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