Jacob Sullum finally gets it…

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Dave

Dave is a part-time blogger that writes about whatever suits him at the time.

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  1. Avatar Jaybird
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    says:

    Lovely and delightful decision. I am hopeful that we get more and more appeals to the 10th Amendment in the days, months, and years to come.

    (I also hope the newfound fans stick around for a while… speaking of which, there was a Medical Marijuana raid in California earlier today.)Report

  2. Avatar Mike Schilling
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    says:

    Loved “supposedly principled originalist like Antonin Scalia”, because it’s so true, and aqlso the implicit embracing of the notion of the living Constitution: its principles don’t change, but we find new ways in which they apply. Whether Madison would have approved of same-sex marriage (or interracial marriage, for that matter) is of no interest.Report

    • Avatar Jaybird in reply to Mike Schilling
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      says:

      @Mike Schilling, I guess, maybe, I understand the conservative love for Scalia in the 80’s.

      In recent years, however, it completely baffles me.

      Raich v. Ashcroft gave him a choice between overthrowing Wickard and, to borrow a delightful phrase, punching a hippie.

      He chose the hippie.Report

    • Avatar Dave in reply to Mike Schilling
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      says:

      @Mike Schilling,

      Scalia has referred to himself as a faint-hearted originalist, and I think he’s right because he is just as results-oriented as any liberal Living Constitutionalist.

      the implicit embracing of the notion of the living Constitution: its principles don’t change, but we find new ways in which they apply.

      The latter part describes originalism, not living constitutionalism. The principles are derived from the meaning of the text. Respect for text is respect for the written nature of the document and its inherent limitations.

      Many of those principles can support unenumerated rights but the 1930’s Progressives would have none of that. When they were finally able to successfully argue that minimum wage laws were constitutional, they threw the whole notion of unenumerated rights under the bus in West Coast Hotel v Parrish.

      Do you think it was the conservatives who first pulled that “I don’t see a right to X nonsense”?

      There’s a reason I refer to the term New Deal Originalism.Report

  3. Avatar Jaybird
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    says:

    And, for posterity:

    reason.com/blog/2010/07/22/who-is-to-blame-for-the-deaReport

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