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.