Is it true that Roberts has broken no new ground?

Bill Carpenter writes:

I agree with you and your commenters that the ACA decision is disgusting and no victory. I wouldn’t say that Roberts’s opinion breaks any new ground at the bottom of the pit of New Deal jurisprudence. As Scalia point out, the modern Court accepts the on-its-face absurd proposition that the taxing and spending power is not circumscribed by the Article I, section 8 topics of Congressional competence. They trace that interpretation to Hamilton. Anyone endowed with a modicum of common sense and good faith would recognize that the power to tax and spend has to be so circumscribed, or it makes the careful limitation of congressional powers, which is the heart and soul of the Constitution, a dead letter. That the centrist Republican Roberts affirmed the New Deal subversion of the limitation of congressional power, instead of reversing it, shows a lack of good faith and common sense that is too widespread.

Similarly, Roberts’s opinion affirmed Wickard v. Fillburn as the limit of the commerce power. To a person of common sense, with a good-faith appreciation of the intended limitation of congressional power in Article I, Section 8, Wickard is a sickening travesty, because a farmer growing wheat for home use is doing nothing with respect to interstate commerce, in exactly the same way that someone who does not buy health insurance is doing nothing with respect to interstate commerce. I did not find Roberts’ distinguishing of Wickard plausible. He should have led a conservative majority in disapproving Wickard.

I think you noted the inconsistency between Roberts’s rejecting Congress’ power to regulate “doing nothing” under the Commerce Clause, while approving Congress’ power to tax “doing nothing” under the Tax and Spend Clause. Well spotted. [LA replies: But my point, which you approve, does show, contrary to your opening statement, that Roberts is breaking new ground. He is establishing an unlimited congressional power that never existed before.]

The most heartening part of the opinion is Thomas’s individual dissent that calls on the justices to revisit Commerce Clause jurisprudence at its foundation. He says that there is no basis for using the test of whether something “substantially affects” interstate commerce for determining whether Congress has the power to regulate it. I would expand on that to say that, understanding the Commerce Clause in the context of Article I, Section 8 topics of competence, it is intended to grant competence in the relatively limited sphere of regulating commerce, e.g., ensuring the free flow of goods and services in a national market, assuring the quality of goods and services that move interstate, and making sure that people involved in interstate commerce get paid and get what they pay for. It is certainly not intended to permit regulation of everything in life that has an economic dimension. It is not intended to permit regulation of everything that is somehow related to the movement of goods and services across state lines. Unfortunately, Thomas’s originalist jurisprudence seems to exist in a vacuum.

Posted by Lawrence Auster at July 04, 2012 10:30 AM | Send