...Antonin Scalia justly earned the credit for taking originalism — the idea that the words of the Constitution ought to be interpreted according to the original public understanding of those words at the time of its composition — from obscure theory to standard method. But in Thomas, the theory has found near-perfection.
The difference between the two justices can be seen most clearly in Gonzales v. Raich, a 2005 case concerning Congress’ power to regulate narcotics. The traditional justification for federal drug laws has been that the drugs are items of interstate commerce. Often they are, but not always. In Gonzales v. Raich, the defendants were prosecuted for growing and smoking marijuana on their own land. The plants never left the property, let alone the state, but the court ruled 6-3 that under the precedents dating back to Wickard v. Filburn in 1942, the federal drug laws were an appropriate exercise of the power to regulate interstate commerce.
Scalia voted with the majority, concurring separately and only expressing his preference for a slightly more nuanced ruling. Thomas dissented. Two other justices — Sandra Day O’Connor and William Rehnquist — believed that the court was stretching the commerce clause too far. Thomas agreed, but also dissented separately to argue that the court’s view of that clause was so far from the original public understanding of commerce as to be nonsensical.
“Commerce,” Thomas explained, “commonly meant trade or exchange (and shipping for these purposes)” to the people who wrote and ratified the Constitution, and to the public at large in those days. No one would call growing a plant “commerce,” nor would consuming it meet the definition. And in any case, none of this commerce was carried out “among the several States,” as the Constitution demands. It was localized production and consumption, nothing more.
But how to reconcile that interpretation, correct though it may be, with the long line of precedents descending from Wickard v. Filburn? That gets to the heart of what makes Thomas’ judicial style unique. Thomas does not demand that the court should be forced to follow incorrect precedents.
...Thomas’ radical originalism promises a cure to the perversion Thomas’ the Constitution through caselaw now calcified in stare decisis. But in unearthing the Lost Constitution, Thomas’ approach also threatens to dig up a lot of trouble. Magnet agrees with his subject that this would nonetheless be an improvement. Time will tell, if Thomas can find enough of his fellow justices to agree.
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Originally Posted by Chris
