Over at Balkinization, Sandy Levinson makes some typically provocative claims about Justice Scalia:
So in rereading Justice Scalia’s fulminations, I was struck by the following sentence: “Article I contains no whatever-it-takes-to-solve-a-national-probem power.” This is, of course, typical Scalia, clever phrasing that lulls the reader to say “of course.” . . . Still, isn’t Scalia’s exuberant pronouncement directly at odds with what Felix Frankfurter once called the most important single sentence(s) in the canon, beginning with John Marshall’s statement in McCulloch (the most important single case in our canon) that “we must never forget it is a Constitution we are expounding.” . . .
So the question is whether Scalia (and his admirers) must admit that their real enemy is not “Progressive-era” living constitutionalists, but “the Great Chief Justice” himself. Can one possibly have genuine respect, let alone “veneration,” for a Constitution that is proudly construed to deny Congress the ability to solve a serious national problem? Must the Scalian theory of a “limited government of assigned powers” be adhered to though the heavens fall? . . . One further possibility, of course, is that he does not actually believe that the health care issue in the US presents a real problem, so what is actually coming out is his particular brand of conservative politics.
There are two points here. First, Sandy claims that John Marshall embraced a “whatever-it-takes-to-solve-a-national-probem power.” But Scalia himself addressed the progressive era interpretation of Marshall’s language in McCulloch, explaining that the view that Marshall endorsed a living constitution approach was
a canard. The real implication was quite the opposite: Marshall was saying that the Constitution had to be interpreted generously because the powers conferred upon Congress under it had to be broad enough to serve not only the needs of the federal government originally discerned but also the needs that might arise in the future. If constitutional interpretation could be adjusted as changing circumstances required, a broad initial interpretation would have been unnecessary. (Originalism: The Lesser Evil.)
If one adds to Scalia’s statement the implicit point that Marshall’s understanding of federal power, while broad by early 19th century standards, was much narrower than the New Deal understanding, it is clear that Scalia easily avoids the difficulty Sandy sees for him.
Second, Sandy asks whether one can have respect for a constitution that denies Congress the ability to solve a serious national problem. The answer, of course, is that one can respect such a Constitution, because constitutions often rightly deny government entities power to do certain things if that power would be dangerous or likely to be abused. Congress has used the excessive power that the New Deal conferred on it to do lots of bad things, and I would say that much of what Congress has done since the New Deal has confirmed the wisdom of placing limits on Congress’s regulatory power.