Monday, April 16, 2012

their worst sin is obliviousness?

The Atlantic | Randy Barnett says that I have ignored his argument about why Justice Scalia's opinion in Raich "in no way bound[s]" him in the Obamacare.

That's not true.

Randy made two "legal arguments": (1) That the Court could create a new constraint, emanating from the Necessary and Proper Clause, that limits legitimate Necessary and Proper Clause legislation to laws that "carry into execution" other laws. (2) That mandates are an improper means to carry Congress's laws into effect.

But I explicitly said that "Scalia could change his test" -- which is what recognizing "a new constraint is." And the whole point of my piece was to underline the significance of statutes that created mandates at the founding -- specifically, that they negate the suggestion that such "means" were "improper." Randy calls this mandate "unprecedented." Except, of course, for these precedents.

Randy also says that for the Court to take account of the mix of laws that it strikes down -- assuring that the mix would not lead reasonable observers to believe they only found unconstitutional laws they don't like -- "would be acting entirely politically."

That too is not true.

"Political" in this context means partisan. It is perfectly appropriate (and not in this sense "political") for the Court to account for how its behavior weakens or strengthens its own institutional integrity. As I've described it elsewhere (my own "legal arguments" that Randy is "skipping over") there is a fidelity to mean-ing and a fidelity to institutional role. A Court that ignores either is not behaving properly.

Finally, Randy says (or his title says) that I argued: "If the Republican Justices Do Not Agree With Me They Will Be Acting Politically."

That too is untrue, as Randy in his very first sentence almost acknowledges, but even that take back isn't complete. For this is the last sentence in my piece
Even I would have to concede the appearance that it's just politics, even if I don't believe I could ever believe it.
What that sentence says is that "I don't believe" the Court is acting politically -- precisely the contrary of Randy's title. I don't believe that the Court is political in the sense most seem to think it is -- i.e., partisan. Their worst sin is obliviousness -- which is precisely what a pattern of intervening exclusively on the Right would be.


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