Notes on Scalia’s Dissent in Sebelius (Affordable Care Act)
I don’t consider Scalia to be at all the intellect he’s cracked up to be. Instead, he reminds me of an ignorant priest and boxing coach at a Catholic high school circa 1965.
Here’s two real gems from his dissent.
Regulate, Schmegulate, to Regulate is to Rule, Fool
“That understanding is consistent with the original meaning of “regulate” at the time of the Constitution’s ratification, when ‘to regulate’ meant ‘[t]o adjust by rule, method or established mode,’ 2 N. Webster, An American Dictionary of the English Lan- guage (1828); ‘[t]o adjust by rule or method,’ 2 S. Johnson, A Dictionary of the English Language (7th ed. 1785); ‘[t]o adjust, to direct according to rule,’ 2 J. Ash, New and Complete Dictionary of the English Language (1775); ‘to put in order, set to rights, govern or keep in order,’ T. Dyche & W. Pardon, A New General English Dictionary”
What Scalia misses is that dictionaries didn’t exist, in the main, until Samuel Johnson’s Dictionary of the 18th century because the ruling and scholarly elite felt no need for them.
They were demanded by the rising middle class anxious to spell, pronounce and use words correctly and unlike Shakespeare, profoundly and rather Puritanically opposed to using neologisms or existing words creatively…and unlike Shakespeare unwilling to spell “incorrectly”.
They became generations of schoolmasters who stifled any form of creativity in student writing.
The founders as members of America’s intellectual elite did not need dictionaries. This is because, as my own experience has shown me, the best way to learn new words in one’s own language or a foreign language is to simply stumble through a quality text as best one can, rarely consulting a dictionary. This is what I do when in the hospital I read Poussin’s letters.
The other way the Founders learned the meanings of words was their education in classical languages, especially Latin, and the English word regulate’s root is a Latin word that means, not to adjust according to a rule but simply to RULE.
In Roman times, ruling meant making up the laws, especially after the fall of the Republic, and the Founders knew this. They knew that government would not only have a natural (and often pernicious) habit to make regulations, but also that this was a necessity at times. It is a major reason our Constitution is based, not on supremacy of people or states, but on checks and balances.
Regulate to Madison meant not only to adjust according to the rule, it meant making the rule. Madison, in the Federalist, spoke admiringly of Britain making her Royal Navy a “nursery for seamen” that created Britain’s mercantile fleet by way of training men and boys aboard warships, and this meant defining what was a Navy, and what was a merchant marine.
To say that the regulator cannot define the scope of what’s regulated (here, Commerce) flies in the face of common sense.
A Commerce Counter-Example
“To be sure, purchasing insurance is ”Commerce”; but one does not regulate commerce that does not exist by compelling its existence.”
That fat thug Scalia is WRONG. When the ordinary police power of the state compels the criminal through the parole system to get a frigging job, it is compelling the existence of a new form of commerce.