Justice Antonin Scalia is known for forcefully advocating his view that Constitutional questions before the Supreme Court should be decided on the basis of the original intent of the Constitution’s authors, or by considering the way society in 1789 would have viewed the language at issue.
Scalia is also known for honoring this originalism as much in its breach as in practice. He tends to shift the scope of his historical analysis as needed to reach the modern conservative outcomes he hopes to achieve.
And so we come to his dissent in the Healthcare cases, a dissent which appears to have started life as the majority’s decision. In this opinion, he argues that Congress exceeded its authority under the Commerce clause in passing a law requiring that US citizens purchase health insurance.
His analysis purports to return us to an understanding of Congress’s authority to regulate interstate commerce closer to that espoused by the nation’s founders, abandoning the Constitutional norms which have prevailed in the Court and in Congress for over 70 years.
What he fails to note is that less than 10 years after the Constitution was ratified, a law was passed which mandated that private citizens purchase health insurance. At the time, many of the Constitution’s drafters remained in Congress or other branches of government, and yet none seemed to regard this as an unConstitutional over-reach, a regulation of inactivity that lay outside of Congress’s legitimate powers. The fine Constitutional distinctions Scalia and 3 justices seek to draw (and which Chief Justice Roberts endorsed in part) simply didn’t exist for the Founders. They should be more straightforward about the radical nature of what they tried to do, and we should all be grateful that they seem to have failed.