“Understanding” Gonzalez v. Raich

Lewis Carroll referred comically to “Anglo-Saxon attitudes,” and for a while I thought we might regard the Supreme Court’s federalism decisions as reflecting, not so much a coherent doctrine, but an attitude toward federalism — a general lack of sympathy for claims of expansive national power, which lack could be overcome by something enough justices found sufficiently important. (Those aren’t intended to be doctrinal terms, just ordinary, conversational descriptions.)

The alternative, which I suppose is getting increasingly plausible, is that the Court doesn’t even have an attitude about federalism. What it has are, well, results. There’s Lopez and Morrison, and then there are Reno v. Condon, Guillen County, Raich, and the preemption cases.

I suppose that someone truly dedicated to making doctrinal sense of the cases — or someone who had to do so as a matter of professional obligation — could come up with something that worked. But a more parsimonious account, I suspect, would be that there are some statutes five or more justices (actually, one justice — see the final paragrpah of this post) think are more or less good ideas, and others that five or more justices think are more or less bad ideas; and that those justices will go to any (purportedly doctrinal) port in a storm to reach the results they think sensible.

One way to ask the question that results is this: Is there any statute now on the books that you would confidently say is unconstitutional on federalism grounds if you didn’t have a professional interest in or personal preference for invalidating the statute? And, if so, is the source of your confidence your understanding of federalism doctrine, or your sense of the (non-federalism related) policy preferences of five or more justices?

On a more mundane level, I suppose that the “possession of pornography” cases rattling around in the lower courts are now clearly resolved in favor of the government.

And, on a fancier level, I suppose one ought to note the artificiality of writing about “the Court” in this context. Does anyone doubt that four justices would overrule Lopez and Morrison in a second if Justice Kennedy came to them and said, “I can’t distinguish this case from Lopez and Morrison, but I don’t want to strike it down. We tried this for a decade and it didn’t work. Let’s just give up”?