Scalia's faux "originalism"

Antonin Scalia famously claims to interpret the Constitution according to what the authors meant at the time they wrote it.   And he seems to "know" what they meant.

It's not the first time his actions have belied that claim, but his latest flip flop is in the spotlight, because it involves the eagerly awaited/dreaded decision about the constitutionality of Obama's health care reform act.

To try to summarize briefly, the justification of the universal mandate to purchase health insurance lies in the interpretation of the interstate commerce clause.   The Constitution clearly gives Congress the power to regulate interstate commerce, but the Court has split on the interpretation of what constitutes interstate commerce.

Modern cases cite the Wickard v. Filburn case of 1942, in which the Court decided that the federal government could regulate a farmer's growth of wheat for his own consumption because it would affect interstate commerce (presumably the price of wheat).

Further, in 2005 Justice Scalia cited this case as legal precedent for the majority opinion he wrote for a case involving the federal government's right to overrule the state law in California involving growing marijuahna for medicinal purposes.

Now, just prior to the decision about the health care reform act being announced, Scalia has released his new book in which he states that the 1942 case (which he cited as support of his 2005 majority opinion) was wrongly decided.

The clear implication here is that Scalia has changed his position because it does not fit with his wish to vote against Obama's mandate.   He would have to reverse himself in order to do that.   So that's what he has done -- just before the Court releases its decision.  Remember, during oral arguments of the case, Scalia sarcastically asked:   if the government can force you to buy insurance, can it force you to buy brocolli?

Well, now.   UCLA law school professor Adam Winkler has written this:

This is typical Scalia. He respects precedents when they fit his conservative ideology and disregards them when they don’t. He claims that history should guide judges. But nothing about the history of the commerce clause has changed. What’s changed is the political implications of the commerce clause. When its being invoked for law and order conservatives, he favors Wickard. When invoked by liberals to support healthcare reform, he thinks Wickard is bad law. Once again, we see that Scalia’s originalism is a charade.

Hear !!  Hear !!    In my opinion, Scalia is a big bag of arrogance -- 
smug, self-important, and utterly unsuited for the highest court 
in the land.

Ralph