Thursday, November 03, 2005

Rolling back the twentieth century, redux

I had a couple of people take me to task for allegly exaggerating when I said that the goal of the so-called conservatives in this country is to roll back the twentieth century. And then once in a while, you actually get a chance to point out a smoking gun, as yesterday for example at Volokh.

What's particularly scary about this posting is that it is basically an attack on Scalia from the right. Money:

conservative judicial originalism is currently in a state of crisis, precisely because of Justice Scalia's "fainthearted" originalism. If Justice Scalia, originalism's supposed great champion, is unwilling to overturn or even go out of his way to distinguish as anti-originalist opinion as Wickard v. Filburn (holding that growing grain on one's own land for consumption on one's own farm can be regulated under Congress' power to regulate "interstate commerce"), then what is left of originalism?

One could say that it's simply "too late" to reconsider sixty-two year old precedents like Wickard. But why sixty-two year-old precedents, and not thirty-two year old precedents (i.e., Roe v. Wade)? Scalia's fainthearted originalism begins to look a lot like, "I got into this business to overturn Warren Court decisions, and I'll use originalism as tool to that end, but I'm not especially interested in reconsidering New Deal precedents."

And these people say they don't want legislation from the bench? Why don't they just work on repealing the Social Security Act through legislation, instead of trying to have it declared unconstitutional? Oh, wait...