FW: Did the dissent in the health care case misuse an Alexander Hamilton quote?

[Victor Steinbok]

The conservative conspiracy theory, as of today, is that the first three
quarters of the dissent had been written by Roberts--or, at the very
least, collectively in Roberts's chambers--prior to him changing his
mind on the outcome. The evidence cited to back up this supposed leak is
stylistic--the majority opinion is not mentioned in the dissent until
the last 17 pages, which is quite unusual for a dissenting opinion. This
would explain both the stylistic discrepancy and lack of a single
author--in fact, if indeed this is what happened, the issue of Roberts's
own words in the dissent could be seen as a direct challenge to Roberts.

VS-)

On 7/6/2012 7:20 PM, Baker, John wrote:
> The dissent is by "Scalia, Kennedy, Thomas, and Alito, JJ."  That is, instead of one Justice writing the dissent and the others concurring in it, they took the unusual step of each acknowledging it as his own.  The quotation in question is found on page 8:
>
> << If Congress can reach out and command even those furthest removed from an interstate market to participate in the market, then the Commerce Clause becomes a font of unlimited power, or in Hamilton’s words, “the hideous monster whose devouring jaws . . . spare neither sex nor age, nor high nor low, nor sacred nor profane.” The Federalist No. 33, p. 202 (C. Rossiter ed. 1961).>>
>
> Now, take a look at The Federalist No. 33.  It doesn't take long to get to the quoted language, since it's in the third paragraph of No. 33, which I quote from its beginning:
>
> << THE residue of the argument against the provisions of the Constitution in respect to taxation is ingrafted upon the following clause.
>
> The last clause of the eighth Section of the first Article of the plan under consideration authorizes the National Legislature "to make all laws which shall be necessary and proper for carrying into execution the powers by that Constitution vested in the Government of the United States, or in any department or officer thereof;" and the second clause of the sixth Article declares, "that the Constitution and the laws of the United States made in pursuance thereof, and the treaties made by their authority, shall be the supreme law of the land; anything in the constitution or laws of any State to the contrary notwithstanding."
>
> These two clauses have been the source of much virulent invective, and petulant declamation, against the proposed Constitution. They have been held up to the people in all the exaggerated colors of misrepresentation; as the pernicious engines by which their local Governments were to be destroyed, and their liberties exterminated; as the hideous monster whose devouring jaws would spare neither sex nor age, nor high nor low, nor sacred nor profane; and yet, strange as it may appear, after all this clamor, to those who may not have happened to contemplate them in the same light, it may be affirmed with perfect confidence, that the constitutional operation of the intended Government would be precisely the same, if these clauses were entirely obliterated, as if they were repeated in every Article. They are only declaratory of a truth, which would have resulted by necessary and unavoidable implication from the very act of constituting a Fœderal Government, and vesting it with ce!
 rt!
>   ain specified powers. This is so clear a proposition, that moderation itself can scarcely listen to the railings which have been so copiously vented against this part of the Plan, without emotions that disturb its equanimity.>>
>
> Note initially that Hamilton is talking about two other provisions of the Constitution, usually known as the "necessary and proper" clause and the "supreme law" clause.  The dissenters, however, are referring to the "commerce clause," which gives Congress the power to regulate commerce with foreign nations, and among the several states, and with the Indian Tribes.
>
> More to the point, it is immediately obvious that Hamilton is referring to the objections as "virulent invective, and petulant declamation," held up "in all the exaggerated colors of misrepresentation."  Justice Ginsburg refers to this quotation on page 28 of her opinion but does not explore its context.
>
> Any suggestion that this came from a disgruntled or clueless law clerk is only speculation, of course, and I'm sure that the opinion received more than the normal amount of scrutiny.
>
>
> John Baker

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