Saturday, April 09, 2011

Principled limits

Inside the Mind of Justice Kennedy

"Third—and most importantly—to address Kennedy’s commitment to restraining federal powers, mandate defenders will have to formulate a plausible theory of congressional commerce authority that remains subject to meaningful, judicially enforceable limits. This is a line of argument that, to date, mandate defenders have been less successful in articulating. They cannot simply ridicule mandate opponents’ contention that the law would open the door to legislation requiring people to eat their broccoli: They must provide realistic examples to demonstrate that principled limits on federal power to regulate commerce among the several states remain meaningful and are not merely words on parchment. Were Kennedy to vote to strike the mandate, it will most likely be because its defenders could not present a principled, enforceable stopping point to federal power under the Commerce Clause."

This demand for a principled limit on the congress's commerce clause powers--one that would render the hypothetical statute mandating broccoli consumption unconstitutional--is ridiculed because the demand is ridiculous. It is also disingenuous.

Not every limit on congressional power comes from the constitution. Congress is well within its commerce clause powers to do any number of stupid things. Even if those things are not limited by the constitution, they should be limited by the inherent constraints of the legislative and democratic processes. I'm obviously taking some form of legal process theory for granted (one that many ACA opponents also take for granted when they're railing against judicial activism). If Congress tries to pass the Eat Your Veggies Act of 2011, you have a remedy: urge them to vote against it or vote against them next election cycle. This may be imperfect, but no remedy can be in any system of government that maintains any semblance of a commitment to democratic principles. Asking for a 10th amendment limit on mandatory broccoli consumption is just begging the question. Right wing legal theorists have such respect for rational legislative judgments until congress does something marginally progressive.

Then the demand for judicial second guessing begins.

Of course, my lack of sympathy for inherent limits on commerce clause power stems from my belief that individual liberty receives little inherent protection from a sharp federal/state divide than they get from other amendments. It usually seems like cover for regressive state and local policies (the major exception being medical marijuana, but federalist dualism didn't stop Scalia from joining a majority in upholding federal enforcement of such laws in Raich). The other amendments do a lot of heavy civil liberties lifting and do so in a way that isn't as bidirectional regarding civil liberties and civil rights as the 10th amendment.
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