Monday, 29 November 2004

Raich pessimism

Will Baude notes a lot of pessimism around the court-watching sphere regarding Ashcroft v. Raich—mind you, much of it seems to be coming from quarters that are skeptical of the whole Lopez line of jurisprudence, without which I suspect this case would have simply received the standard 9–0 Ninth Circuit Smackdown (for some of this, er, conflicted viewpoint, see today's NYT editorial). He does make a semi-interesting statement worth exploring further:

[T]he somewhat confused coverage of the case does not look good for any hope of establishing a political vindication instead of a judicial one.

It seems to me that relatively few people in the public—or, for that matter, within political elites—actually conceive of Congress as lacking the plenary power to legislate as it sees fit in any sphere of activity (economic or otherwise), subject only to the limitations of the Bill of Rights and subsequent amendments. The Lopez line is such a dramatic break from over fifty years of federal jurisprudence that I doubt many people can imagine that America got along, more-or-less fine (at least in the economic/police powers realm; I can’t say the same for the lack of enforcement of the 14th Amendment in terms of political rights), for 150 years without such a plenary congressional power, under the understanding that primary authority for such regulation rested in the states.

There are more thoughts on this topic from Brock, below, and James Joyner.


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The 14th Amendment is irrelevant to the Lopez doctrine, as its own clause 5 gives Congress a separate enumerated power to enforce it. Interstate commerce is relevant to civil rights only when it comes to regulating private discrimination.


Did I say the 14th had anything to do with Lopez? In any case, Congress only got around to caring about using its powers under the 14th Amendment decades after NRLB v. Jones and Laughlin Steel and Wickard.


Say? No. Imply? Yes. Starting with a general statement that “I doubt many people can imagine that America got along, more-or-less fine…for 150 years without such a plenary congressional power,” coupled with a specific reference to the economic/police powers issue and a specific exception for ” the lack of enforcement of the 14th Amendment in terms of political rights,” certainly implies that one has something to do with the other. The only common thread I see between them is that in both cases, the courts construed one enumerated power or another more narrowly than they typically do today. But in the case of the 15th Amendment, that had more to do with a general hostility of the courts toward the 14th Amendment itself than with strict constructionism per se. Cf The Slaughterhouse cases (nullifying the P&I clause), Plessy v. Ferguson (separate but equal).


Actually, I just added the 14th amendment reference to make it clear that in terms of racial equality and fundamental rights, Congress was woefully deficient in ensuring citizens had the basic rights of political participation they were entitled to under that amendment and the Bill of Rights. In other words, I have no illusions that the economic substantive due process era (ca. 1877–1936) was some great libertarian/classical liberal utopia in all areas of the law.

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