Right. And that makes no sense. Scalia is basically saying that since the feds have outlawed marijuana, they can outlaw home-grown marijuana. But he says that the feds can’t ban gun possession on school grounds because that is a state issue.
Would it not follow that the feds could outlaw guns (again, ignore the 2nd) thereby making possession on school grounds illegal by default? They have no power to regulate one single minute detail of item X, but they can regulate ALL large details of item X only? Makes no sense.
It would be like saying that I can’t tell you what you can eat for dinner in front of the TV tonight because that “power” would be too far and overreaching and is reserved to you, but I would have the power to ban all food from your home, including the area in front of the TV and that would be okay…???
Your attempt at asserting your point has already gone haywire right here. The First Amendment’s prohibition on federal government actions infringing “freedom of speech” applied to written as well as spoken communication. Thus, pamphlets were part of the mix. This means that “freedom of speech” was understood at the time to mean more than “freedom to say words with your mouth.” It was understood to mean “freedom to communicate ideas.”
Therefore, there is no need to re-interpret the meaning of the words to deal with, for example, the internet. Once we know that the words meant communication, we know that communication on the internet is covered.
People who don’t understand textualism or originalism think that it means using very narrow meanings of words. This is not the case at all, as this example shows.
As for the Eighth Amendment, simply re-adopting the amendment with the same language would do nothing to change its application, since those words still mean the same thing when applied to the concept of punishment. What someone would have to do is reword the language to make it clear that the behavior the federal government is restricted from engaging in is broader than judicial punishment.
Since the 1st Amendment also includes the words “of the press”, I agree with you that it included pamphlets. That still doesn’t change my contention that, by making the argument that the 1st amendment applies to communication, we are left with the task of determining what constitutes communication. And in so doing we are “re-defining” the term to suit the particular technological or social norms of the time. Again, it becomes a matter of degree of adaptation; not whether adaptation is to be done at all.
I understand and agree that the 8th amendment doesn’t apply to torture, insofar as torture is not a prescribed form of judicial punishment. My point is that words do not mean the same thing at different times. A look at an old dictionary would likely make this clear. Perhaps slowly, and possibly imperceptibly, words do change their meaning and intent over time. All I’m arguing is that we ought to be cognizent of applying the changing definitions of words as we interpret their meaning. Simply saying that (for example), since in the 18th century the stocks were an acceptable form of punishment, they are not “unusual” today is an archaic and unworkable application of the meaning of words.
Not meaning to nitpick, but in that example it’s not clear to me who is supposed to be the States vs. who is supposed to be the individual.
A better analogy might be: Saying that the government can ban parents from feeding their kids certain foods, but it’s up to the parents to decide whether the kids eat the allowed foods in the dining room or the living room.
Again, it’s not so much a question of “How much power is too much?” but rather a question of “Who gets to make which decisions?”
So, if the feds were to pass a law outlawing the eating of potato chips in the living room under the guise that this promotes laziness and harms interstate commerce, this would be a power not allowed (the majority & Scalia in Lopez)
But if the feds passed a law making eating potato chips illegal in every location, under the guise that they harm interstate commerce, thereby implicitly including the prohibition of eating them in the living room, then this would be allowed (the majority in Raich + Scalia - Thomas)
It seems to me to be inconsistent and even backwards. Surely the framers didn’t intend a limitation on the power of the national government to prohibit the intrusion on a minor point, but allow the intrusion on a major point which also encompasses that minor point.
Scalia would be less concerned with what the Framers intended than with what is the most reasonable interpretation of the actual words of the Constitution.
The Commerce clause says (omitting some words): “The Congress shall have power to regulate commerce among the states.”
Clearly a national ban on potato chips would affect commerce among the states, since potato chips produced in one state are frequently sold in another.
In contrast, a ban on eating potato chips in the living room would have very little effect on interstate commerce.
The problem isn’t that the federal government lacks sufficient power to ban people from eating potato chips in their living rooms. Obviously the federal government has that power, because Congress could legally ban potato chips everywhere.
The problem is that if Congress bans potato chips from living rooms while still allowing them everywhere else, they can’t seriously be said to be trying to affect interstate commerce.
The alternative is to read the Commerce Clause as saying “Congress can do anything which could hypothetically be incorporated into a regulation on interstate commerce, whether they’re actually regulating interstate commerce or not.”
I’m not sure . . . . Has Scalia actually said he reads the two differently, or is this just your interpretation based on his rulings?
You seem to be saying that Scalia thinks the 1st Amendment should be interpreted based on how it was applied at the time, and the 14th Amendment should be interpreted based on the meaning of the words. Perhaps he would argue that both should be interpreted as a “reasonable person” would have understood the meaning of the words at the time – and is merely arguing that the Congress failed to interpret the meaning of the 14th Amendment as a contemporaneous reasonable person would when it allowed segregation, etc.
Or maybe it is inconsistent, I don’t know . . . . Like I said, I’m mostly playing devil’s advocate in defending Scalia’s view as “consistent”. Personally, I think some of the language in the Constitution is inherently subjective and could reasonably be seen as evolving over time. So in postulating how Scalia would defend his decisions, I’m imagining a point of view that I don’t actually share.