In 1942, deciding the case of Wickard v. Filburn, the U.S. Supreme Court deemed the wheat grown by an Ohio farmer purely for his own use and consumption—not for sale—to “exert a substantial effect on interstate commerce.” This infamous decision led many to conclude that the scope of Congress’s authority under the Commerce Clause is essentially unlimited.
Now that understanding may be upended by a tiny, blind arachnid known as the “Bone Cave harvestman” (scientific name: Texella reyesi). This cave-dwelling invertebrate, which resembles a spider, has been included by the U.S. Fish and Wildlife Service on the Endangered Species list since 1988. Pursuant to the Endangered Species Act and its enabling regulations, the “habitats” of endangered species cannot be modified or “degraded” without a federal permit.
My co-blogger, Mike Rappaport, has opened up a discussion about the flaws of Justice Scalia’s jurisprudence. I think this is an important subject. Despite his mistakes, Justice Scalia was a great justice. But precisely because of his greatness, his errors, unless noted and analyzed, may hold back progress in the jurisprudential theories he championed.
In constitutional law, I think Justice Scalia’s greatest systematic mistake was his treatment of precedent. One of his most famous statements on the original meaning of the Constitution was one in which he argued for following precedent: “I am an originalist, not a nut.” Unfortunately, his argument for precedent here does not seemed to be based on the Constitution itself, or tied to any rule. It is merely a maxim of prudence. Overruling some cases could be too disruptive to entertain.
And to my knowledge, he never provided any further analysis of how to tell us when cases were too disruptive to be overruled and when they were not, let alone whether this was a sensible rule for evaluating precedent, even if it should be thought of as a rule. As a result, he is open to the criticism that he picked and choose among precedents he liked (or at least could live with) and those he hated.
Thus, for instance, he would never acquiesce in the fundamental right cases, like Roe, but he was willing to follow and perhaps even extend cases, like Wickard v. Filburn.
I’ve been traveling today, driving from Amherst back to Washington, and so I’m catching up with some of the comments drawn by the piece on Commencements and the bizarre implication that springs from the judgment of the Court in Lee v. Weisman. I want to thank Carl Scott for his stirring words on Natural Rights & the Right to Choose. But on this matter of whether I would try to make use of the lever revealed in this case, he has me wrong on one critical point: I’m always in favor of the conservatives making use of the ‘principles’ laid down by the Left in order to show how those principles would work quite forcefully against them. The Left persistently fails to live by the rules or principles it lays down for others, and so the only way of making them back away is to use the precedents they set in ways that they’ll find quite jarring.
In Part I of this series, I wrote that “while the left’s handwringing over the future of Wickard v. Filburn could be dismissed as hysteria or histrionics, its concern about the outcome of the severability issue [in Florida v. HHS] is firmly grounded in reality.” I owe readers a few words supporting that conclusion. * * * In Champlin Refining Co. v. Corporation Comm’n of Oklahoma, 286 U.S. 210 (1932), the Court said, Unless it is evident that the legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may…