Replies

The Framers of the Constitution and their generation did not intend for the vast scope of federal power today, much of it based on the commerce clause. But the defect of the Constitution in not providing restraint on the federal commerce clause power resides in the document as they wrote it.

As the exercise of federal power under the commerce clause expanded through the late 19th and early 20th centuries for well-founded commercial reasons, the federal courts recognized the implications and developed the "dual federalism" doctrine as a check against the commerce clause becoming a general federal police power. Of course, the defect of the doctrine was that it was faithful to original intent but not to the express terms of the Constitution itself.

New Deal constitutional reasoning in part was a rejection of longstanding judge-made theories and doctrines like "dual federalism" and "substantive due process" and a federal "freedom of contract." There was a reasonable basis for those doctrines based on American history and faithfulness to the limited government envisioned by the Framers, but the doctrines are not well-grounded in the express terms of the Constitution.

Unfortunately, trying to revive old doctrines today in full is a fool's struggle because we cannot hope to unwrite the last seventy years of history and federal case law. We can though fashion new case law to limit federal power as opportunities to do so arise out of today's controversies.

Consistent textualism, for example, which is Scalia's preferred term for his brand of originalism, would put much of the Warren era case law in jeopardy. Justice Hugo Black, a dissenter from much of the Warren era cases, was a resolute textualist -- which was also the basis for many of the New Deal case opinions that he wrote or influenced.

As for the commerce clause, my preference going forward is to rework the federal preemption doctrine so as to provide a counterweight to expansive readings of the commerce clause, with results similar to some of the dual federalism cases. More important, as the federal welfare state unravels in the coming decades, we must try to find ways to reestablish limits on federal power using new laws and Constitutional amendments.

De facto Marijuana legalization by judicial decree is not on the menu though -- or at least not in my view.

The Framers of the Constitution and their generation did not intend for the vast scope of federal power today, much of it based on the commerce clause.

Such as the Great Society and various gun bans.

There was a reasonable basis for those doctrines based on American history and faithfulness to the limited government envisioned by the Framers, but the doctrines are not well-grounded in the express terms of the Constitution.

Then the scoundrels and fools in the New Deal era made a wreck of the Constitution, according to you. I believe you applied those terms to judicial accomplices in favor of Wickard.