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

[Baker, John]

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 cert!
 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



-----Original Message-----
From: American Dialect Society [mailto:ADS-L at LISTSERV.UGA.EDU] On Behalf Of Joel S. Berson
Sent: Friday, July 06, 2012 6:50 PM
To: ADS-L at LISTSERV.UGA.EDU
Subject: Re: FW: Did the dissent in the health care case misuse an Alexander Hamilton quote?

My guess is that the wet-behind-the-years law clerk(s) didn't get
Hamilton's sarcasm.  And that the ignorant Supreme Court dissenters
didn't realize the statement was inconsistent with Hamilton's known
Federalist sentiments, and check.  But the responsibility is the
judges', not the clerks' -- after all, they signed the opinion.

Or did they?  Did I read that the author of this dissent was *not*
identified?  Rather, it was merely subscribed to by the four dissenters?

The image of a law clerek deliberately inserting malware is
intriguing.  As is the image of the dissenters deliberately
distorting Hamilton's position.

Joel

At 7/6/2012 05:15 PM, Baker, John wrote:
>Most Supreme Court opinions are actually drafted by law
>clerks.  These are young lawyers who typically have been out of law
>school for only a year or two (during which time they would have
>clerked for judges at lower courts) and spend only one year clerking
>for a Supreme Court Justice.  I wonder if a dissident clerk
>deliberately included in this land mine in the dissent.
>
>
>John Baker
>
>
>
>-----Original Message-----
>From: American Dialect Society [mailto:ADS-L at LISTSERV.UGA.EDU] On
>Behalf Of Joel S. Berson
>Sent: Friday, July 06, 2012 5:03 PM
>To: ADS-L at LISTSERV.UGA.EDU
>Subject: Re: FW: Did the dissent in the health care case misuse an
>Alexander Hamilton quote?
>
>At 7/6/2012 04:36 PM, Shapiro, Fred wrote:
> >Aficionados of quotation misuse may enjoy this blog posting:
> >
> >http://sbmblog.typepad.com/sbm-blog/2012/07/did-the-health-care-dis
> senters-misuse-a-federalist-quotation.html
> >
> >Fred
> >Shapiro<http://sbmblog.typepad.com/sbm-blog/2012/07/did-the-health-
> care-dissenters-misuse-a-federalist-quotation.html>
> >
> >------------------------------------------------------------
> >The American Dialect Society - http://www.americandialect.org
>
>And these are the judges who claim to be the only correct
>interpreters of "original intent"!  They don't even understand the
>18th century's rhetorical use of sarcasm.
>
>Joel
>
>------------------------------------------------------------
>The American Dialect Society - http://www.americandialect.org

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The American Dialect Society - http://www.americandialect.org

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The American Dialect Society - http://www.americandialect.org