Scalia, Libertarianism, and the Constitution

With the recent death of Supreme Court Justice Antonin Scalia, there has been much reflection of his life and his beliefs.

Scalia has the reputation of being an originalist, meaning he interpreted the U.S. Constitution according to its original intent.  He also has the reputation of being a conservative.

I have heard the typical comments about Scalia from the left and the right, which seem to be mostly talking points.  But I have also heard some libertarian commentary on him, which I will comment on below.

I would like to say that everything I have heard and seen about Scalia indicate that he was highly intelligent.  Even many on the left will admit that.  He also seemed to have a good sense of humor and to be likable in person.

In terms of his time as a Supreme Court justice, there is no question that he was a little different.  His written opinions were often well thought out and he was skilled at using rhetoric.  He is beloved by the conservative wing of the Republican Party, which is not surprising given his conservative stances.

Scalia also makes Ronald Reagan look good to conservatives.  Reagan’s other nominees who made it through confirmation were Sandra Day O’Connor and Anthony Kennedy, who are not known to be nearly as conservative.  Reagan also nominated Robert Bork, but he was blocked by the Senate.

I have heard and read some commentary by libertarians on Scalia including a piece by Judge Andrew Napolitano, who was actually a friend of Scalia’s.  The great Tom Woods also did a podcast with Kevin Guzman on the topic.

These are libertarian greats that I admire and learn from.  With that said, I thought they were much too soft on Scalia.  It is understandable that Napolitano does not want to criticize his friend who just passed away.  As far as the discussion between Woods and Gutzman, they did have some light criticism of Scalia, but I thought they could have gone deeper in some respects.

I don’t expect libertarians to agree on everything and that is fine.  But for those who don’t know a lot about Scalia, I just want to shed a little bit of light.

In terms of disagreement, libertarians often disagree on the U.S. Constitution.  Some think that we should defend it and uphold it.  Some think it is just a piece of paper that is meaningless.  Some think its adoption was a coup against the Articles of Confederation to centralize power.

Despite disagreements between constitutionalists and anarchists and others, most libertarians agree that we would be much better off if the U.S. government actually obeyed the Constitution and its enumerated powers as compared to the monstrosity that we have now.

I will also acknowledge that libertarians have differing views of certain aspects of the Constitution including the 14th Amendment and how it applies to states, and also about judicial review.  On the latter, there is a question of whether the U.S. Supreme Court should strike down laws that it deems unconstitutional.

Scalia had nearly 3 decades on the bench, so there are obviously a lot of rulings to examine.  There are many cases where libertarians could reasonably disagree.  But I just want to focus on one particular case where I’m guessing at least 99% of hardcore libertarians would agree on what the ruling should have been.  It is a case where, for me, it shows that Scalia was a conservative first, and a constitutionalist second, if at all.

The case is Gonzales vs. Raich.  It was argued in 2004 and decided in 2005.  The Court ruled by a 6 to 3 vote that the U.S. Congress can criminalize the production and use of home-grown cannabis where a state has legalized its use for medicinal purposes.  The ruling was justified under the Commerce Clause.

Realize that this doesn’t even involve the trading or selling of marijuana across borders, although I still believe that the only way this could be a legitimate case in front on the U.S. Supreme Court is if there were some kind of dispute between the states.  The federal drug laws are still unconstitutional, regardless of whether drugs are crossing state lines.

Still, this case was very narrow in just referring to home-grown marijuana.  In this case, the so-called originalist, Antonin Scalia, sided with the majority.

Of course, Scalia wrote his own opinion, separate from the majority, trying to dance around his interpretation.  But for me, this case makes it rather clear that Scalia was a conservative first and foremost.

The three dissenting opinions were Sandra Day O’Connor, William Rehnquist, and Clarence Thomas.  Actually, it was Justice Thomas in this case who had strong rhetoric on his side.  He wrote a scathing dissenting opinion, pointing out the absurdity of it all.

Thomas wrote that if the federal government can regulate this, “then Congress’ Article I powers – as expanded by the Necessary and Proper Clause – have no meaningful limits.”

Thomas also wrote: “If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison’s assurance to the people of New York that the ‘powers delegated’ to the Federal Government are ‘few and defined’, while those of the States are ‘numerous and indefinite.'”

I have had my disagreements with Clarence Thomas over the years as well, but by looking at this case, it is clear that there may be a much stronger case for libertarians to at least sympathize with Thomas over Scalia.

The federal drug war is a great issue to test conservatives who supposedly pledge allegiance to the Constitution.  There is obviously no enumerated power in the Constitution giving Congress the authority to legislate drug laws.  If a conservative believes that drugs should be illegal in all 50 states, but that ultimately it is up to the states to decide, then that would be consistent with taking an originalist approach in interpreting the Constitution.  But let’s face it; most conservatives strongly favor the federal war on drugs.

Again, I know libertarians can have differing views that are reasonable, but I thought it was important to point out this one particular case to show that Scalia was nothing close to a libertarian and was not even a strict constructionist or originalist when it conflicted with his personal conservative views.

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