Posted by Randy Barnett:
The Silence of Justice Kennedy:
http://volokh.com/archives/archive_2005_06_05-2005_06_11.shtml#1118408865
In my earlier post, I failed to link to my NRO article, [1]The Ninth
Circuit's Revenge. I have now done so below, and also [2]here.
As for Orin's defense of Justice Kennedy, there is very much that
could be said, but I will limit myself to the following. Justice
Steven's opinion is a sweeping limitation of Lopez and Morrison. So
saith Justice O'Connor and, by joining her opinion, the author of
Lopez and Morrison, Chief Justice Rehnquist. Justice Kennedy had the
means available to him of concurring in the result while explaining
how the outcome in this case was consistent with his concurring
opinions in Lopez and Morrison: He could have written a concurrence
like Justice Scalia did. Had this been so easy a task as Orin
believes, I would have expected him to have done so. But I think this
would have been hard for him and his silence is circumstantial
evidence I am correct.
Orin says that Raich would not "could comfortably coexist with the
settled broad understanding of the Commerce Clause that Wickard helped
cement." But by limiting the substantial effects/aggregation
principles of Wickard to intrastate economic activity, Lopez and
Morrison subtly undermined that "settled" understanding, which is why
these cases have been so much discussed. Justice Kennedy's concurring
opinions added an "external" rationale for checking federal power
based on a respect for the traditional law enforcement function of
states. By his silence, Justice Kennedy failed to explain why this
rationale does not apply with even greater force in Raich than it did
in Lopez or Morrison (as we argued in our briefs).
Justice Kennedy's concurring opinion in Lopez quoted by Orin is
completely consistent with Chief Justice Rehnquist's interpretation of
Wickard (and ours in Raich):
. . . it also mandates against returning to the time when
congressional authority to regulate undoubted commercial activities
was limited by a judicial determination that those matters had an
insufficient connection to an interstate system.
Here there are NO commercial activities of any kind involved, along
with ZERO connection to an interstate market.
It is not just the facts of Wickard that differ from Raich. It is
every aspect of the case, including the scope of the statute in
question, the nature of the economic activity involved, and the
rationale of the Court for why it is within the power of Congress to
reach this intrastate activity. There is only one respect in which
Wickard resembles Raich: the way Wickard has been (mis)taught over the
years by law professors. For years Wickard was mistakenly taught as
though it authorized Congress to reach any activity that serves as a
substitute for a market activity. Justice Steven's opinion in Raich
now appears to adopt that misinterpretation of Wickard as law.
It is generous of Orin to defend Justice Kennedy, but Justice Kennedy
should have been capable of explaining himself in a concurring
opinion. My original point was that, for whatever reason, he chose not
to.
References
1. http://www.nationalreview.com/comment/barnett200506090741.asp
2. http://www.nationalreview.com/comment/barnett200506090741.asp
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