Roberts & Alito: The Triumph of Roosevelt Over Madison?: I have been too swamped with teaching and writing commitments to comment on the nomination of Judge Alito. I cannot say that I am enthused, however, which also probably accounts for my silence on the subject. To appreciate my reservations take a look at one endorsement of the Alito nomination by the thoughtful law professor David Wagner in the Weekly Standard, entitled, Alito and "Rational Basis." In particular, consider his final paragraph:

More importantly, Judge Alito's Casey opinion shows him to be faithful to the judicial duty not to "legislate from the bench," an overused phrase which means simply that judges should go the long mile before substituting their views for those of the people's elected representatives.

This view of the role of judges was perhaps the New Deal's most bipartisan achievement. The departures from it during the heyday of the Warren Court produced friction among the liberal Justices appointed by FDR (notably between Douglas and Frankfurter), as well as controversy with a new generation of conservatives who saw the New Deal-type of rational basis test as key to preserving the democratic accountability of public decision-making. Conservatives felt odd, and still do, defending a New Deal doctrine (and being attacked for it from the left). But this particular New Deal doctrine is an established tradition with bipartisan support, and Judge Alito's Casey dissent show him standing squarely within it. Nothing could be more mainstream.

I plan to say more about this in my Federalist Society Convention talk on November 12th.

I fear that the Federalist Society coalition may be at a crossroad that was brought to a head by the split between justices Scalia and Thomas in Gonzales v. Raich. I am thinking a lot about this now because (a) I am teaching the case next week in Con Law, (b) I am reading the papers in a Symposium on Gonzales v. Raich in the Lewis & Clark Law Review so I can write the Foreword to the issue (the papers are really good, though depressing), and (c) our brief in the case asserting our Due Process Clause claim is due to the Ninth Circuit on November 23d.

The doctrinal crossroad involves, not the Commerce Clause, but the Necessary and Proper Clause. In Raich, Justice Scalia endorses the Roosevelt New Deal Court's approach to that clause; while Justice Thomas endorses Madison's approach. To the extent that we can predict justices Roberts and Alito will side with Roosevelt/Scalia over Madison/Thomas, then their appointments represent the triumph (once again) of Rooseveltian judicial restraint over the text and original meaning of the actual Constitution. It is hard to be cheerful about this development. Of course, we cannot know for certain which direction they will take, but a strong professed commitment to precedent—read: New Deal precedent—which is the preference also expressed by Justice Scalia in his "fainthearted" (his term [862], not mine) approach to originalism, harbingers the triumph of Roosevelt over Madison—ironically with the endorsement of a goodly portion of the Federalist Society.

But then again, that's just my opinion (today). I could be wrong.

Update: Oh yes. Based on this assessment, I predict that, like Chief Justice Roberts, Judge Alito will be easily confirmed by the Senate without a fillibuster. This is not the battle some were waiting for.

Madison & Marshall on McCulloch v. Maryland: In the comments on my previous post, Marty Lederman asks,

[W]asn't the Madisonian view of the *Necessary &Proper Clause*, in particular, laid to rest in McCulloch v. Maryland, for better or for worse . . . ? If so, are you genuinely proposing a reconsideration of Justice Marshall's apparent resolution of that question?

This is actually a rather complicated question that is not easily answered in a blog post. The short answer (which is here no more than an assertion) is that McCulloch v. Maryland was seriously "reinterpreted" by the New Deal Court to be much more permissive than it originally was written (as explained by David Currie in The Constitution in the Supreme Court: The First Hundred Years, 1789-1888, p. 165). This was perhaps, Currie suggests, because Marshall failed to apply his own test to the case at hand.

Even so limited, Marshall's opinion was widely condemned as a usurpation at the time it was issued, including by James Madison who, as President, had signed the very law that Marshall had upheld in the McCulloch. Wrote Madison:

[O]f most importance is the high sanction given to a latitude in expounding the Constitution, which seems to break down the landmarks intended by a specification of the powers of Congress, and to substitute, for a definite connection between means and ends, a legislative discretion as to the former, to which no practical limit can be assigned.

Madison then both acknowledged the supposedly modern insight that the national economy is interconnected and rejected this as a basis for a latitudinarian interpretation of "necessary":

In the great system of political economy, having for its general object the national welfare, everything is related immediately or remotely to every other thing; and, consequently, a power over any one thing, if not limited by some obvious and precise affinity, may amount to a power over every other thing. Ends and means may shift their character at the will and according to the ingenuity of the legislative body.

As Madison contended:

Is there a legislative power, in fact, not expressly prohibited by the Constitution, which might not, according to the doctrine of the court, be exercised as a means of carrying into effect some specified power?

For Madison, the main problem with the definition of "necessary" used by Marshall was that it made judicial review impractical: "Does not the court also relinquish, by their doctrine, all control on the legislative exercise of unconstitutional powers?" Madison objected to interpreting necessary as merely expedient or convenient, in part, because doing so would place the matter "beyond the reach of judicial cognizance. . . . By what handle could the court take hold of the case?" (For the entire text, click here.)

For his part, Marshall denied that his decision provided no effective limit to the powers of Congress. Writing anonymously as A Friend of the Constitution, he defended his decision in McCulloch:

In no single instance does the court admit the unlimited power of congress to adopt any means whatever, and thus to pass the limits prescribed by the Constitution. Not only is the discretion claimed for the legislature in the selection of its means, always limited in terms, to such as are appropriate, but the court expressly says, "should congress under the pretext of executing its powers, pass laws for the accomplishment of objects, not entrusted to the government, it would become the painful duty of this tribunal . . . to say that such an act was not the law of the land.

Of course, there is much more pertinent evidence to be discussed, but I have confined myself to Madison's reaction to McCulloch and Marshall's denial that his decision in McCulloch provided a blank check to Congress. I think neither man's views match Justice Scalia's rendition of the Necessary and Proper Clause in his Raich concurrence, but certainly Madison's does not.

The fundamental error is to read McCulloch and, for that matter, Gibbons v. Ogden through the eyes of the New Dealers. In Raich we contested neither case because we did not need to. Nor, for that matter, did we need to contest Darby or Wickard. It was the majority, joined by Justice Scalia, who decided to extend the Commerce Clause/Necessary and Proper Clause combo beyond Wickard—which upheld a statute that was limited by Congress to commercial farms over a certain size—to reach entirely personal noncommercial intrastate backyard behavior. I do not deny that, for decades, law professors have assumed that Congress had such broad powers, but even the New Deal Court never claimed this degree of power for Congress.

[Those who want to know more about the original meaning of the Necessary and Proper Clause can click here.)

Alito's Conservatism: Ann Althouse comments on (and quotes from) a report in the NYT analyzing Judge Alito's dissents:

Liptak and Glater don't manage to pull out any inflammatory dissents, and they seem most drawn to the conclusion that his brand of conservatism is not the pursuit of politically conservative outcomes but simply judicial restraint:

"One theme that runs through Judge Alito's dissents is deference to the views of the people and the agencies closest to the facts and thus, in his view, best situated to make decisions."

There are, we need to recognize, varieties of judicial conservatism. If you want to characterize a judge as a conservative, please tell me what kind of conservative you mean.

Exactly!