Live from the Gehenna Antonin Scalia Made for Himself: Legal Fiction: Clarity in Commerce Clause Jurisprudence: "You probably missed this, but the Court released one more opinion yesterday:


No. 06-03

United States (Respondent) v. Smith (Petitioner)

Justice SCALIA delivered the opinion of the Court:

This case presents a question of the scope of Congress’s power under the commerce clause. To simplify and clarify our commerce clause analysis, we have consolidated two cases in which petitioners challenge the constitutionality of two federal laws that allegedly exceed Congress’s power to regulate commerce – (1) a law banning local possession of marijuana; and (2) a law criminalizing violence against women. Applying our new standard, we find the marijuana law constitutional and the other one, well, not so much.

I) [unnecessarily long and tortuous narrative of facts]

II) Article I, Section 8 grants Congress the power to regulate interstate commerce. In recent years, the Court’s commerce clause analysis has been accused of being ‘unclear’ and ‘results-driven.’ See Bork, R., What the Fuck Is Up With Scalia in Raich?, 118 Harv. L. Rev 211, 213-14 (2005). Specifically, critics have pointed to the seeming inconsistency between the Court’s decision in Morrison and its decision in Raich (cases coincidentally involving similar facts at the case at issue here). Id. at 215. See also Aging Hippy Liberal Douche, A Post-Modernist Perspective on the Habermasian Dialectic Inherent in Scalia’s Commerce Clause Analysis, 98 Yale L.J. 1201, 1210-11 (2004).

The lower courts have also failed to find a meaningful distinction between the laws struck down by the Court and those upheld. See, e.g., Vedder v. Cobain, 321 F.3d 12, 15 (2004) (Posner, J., dissenting) (‘What the fuck is up with Scalia in Raich?’).

In light of this criticism, the Court today announces a new clear standard to guide lower courts in their application of the commerce clause. This new standard will govern when a law exceeds Congress’s power under the commerce clause and when it does not. The new standard is this – a law passed pursuant to the commerce clause is constitutional if Justice Scalia likes the law and unconstitutional if he does not. Similarly, if the law is regulating things that Justice Scalia wants regulated, it is constitutional. If it does not, it is not.

A) In justifying any new constitutional doctrine, we must first of course look to the original understanding of the Holy Framers who ascended Mount Sinai and brought back down the Constitution on stone tablets in 1787. A close look at the ratification debates reveals that the scope of the commerce clause was intended to be equal to, and co-extensive with, Justice Scalia’s political preferences. Here is James Madison in Federalist No. 10:

AMONG the numerous advantages promised by a well constructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction. The friend of popular governments never finds himself so much alarmed for their character and fate, as when he contemplates their propensity to this dangerous vice. He will not fail, therefore, to set a due value on any plan which, without violating the principles to which he is attached, provides a proper cure for it.

While at first glance this appears to have nothing to do with the commerce clause, if you switch around some of the letters, it spells: Do What Scalia Wants. See, e.g., Hamburgler v. Burger King, 521 U.S. 321, 341-42 (2003) (Thomas, J., concurring) (‘As Harry Potter has taught us, mixing around letters can reveal important insights into the Framers’ original understanding and Lord Voldemort’s evil plans.’).

B) While this new standard is a marked improvement over our prior doctrine, we recognize that lower courts will need additional guidance in determining just what Justice Scalia likes and dislikes. Although multi-factored balancing tests are generally for commie pinkos and Justice Kennedy, there is not always a clear answer to these questions. Instead, lower courts must look at the many things Justice Scalia likes and dislikes and then determine how the law relates to them.

For instance, Justice Scalia dislikes many things – hippies, long-haired hippies, hippies with beards, long-haired hippies wearing sandals, the homosexual agenda, assisted-physician suicide, Will & Grace, long-haired bearded hippies wearing sandals, long-haired hippies wearing sandals and burning flags, the Florida Supreme Court, Justice Kennedy, Satan, the New Deal, and the equal protection clause.

On the other hand, Justice Scalia likes many things – police, police arresting hippies, laws criminalizing drug possession, laws criminalizing drug possession by hippies, duck hunting, barbeque, John Ashcroft, Jesus, and the equal protection clause in the context of presidential elections.

III) With this new standard in place, we can now evaluate the constitutionality of the two laws in questions.

A) The first law at issue is a federal law criminalizing local drug possession that is not intended for sale or distribution. At oral argument, the United States argued strenuously that the law should be upheld because it regulates hippies and conduct traditionally associated with hippies. The petitioners, however, argue that the connection to hippies is overblown and that the association is simply a product of our decadent Hollywood culture.

We agree with the United States. While Justice Scalia detests Hollywood, he hates hippies even worse. And drugs have long been associated with hippies. Blackstone, Commentaries on the Laws of England 134–135 (1765) (‘Hippies shall face the lash of the sheriff’s whip.’) The Court cannot tolerate hippies or their hippy Vietnam-protesting ways – and we long for the return of the stocks when those America-hating hippies will get, um, . . . The original understanding was that drug laws would be included within Congress’s Article I power. The Court concludes that the drug law is constitutional.

B) The second law at issue is a federal law that criminalizes violence against women. The United States argues that the law affects criminals and that Justice Scalia really hates criminals. The Solicitor General added, ‘And I mean, he reallllllly really hates ‘em. Am I right or am I right or am I right. Rrright? Rrright?’ To this persuasive argument, the law’s challengers responded that the law is an attempt to help a historically disenfranchised group through the use of federal power. While Justice Scalia has no particular gripe against historically disenfranchised groups, he cannot abide federal efforts to help them. Indeed, it is obvious that the Framers did not intend the commerce clause power to include such authority:

By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.

Federalist No. 10 (Madison).

The Court concludes that this law is unconstitutional.

IV) The Courts of Appeals are hereby REVERSED.