Scalia's "Federalism"
June 28, 2005
As with his "originalism," Justice Scalia selectively incorporates federalism into his opinions. Snuck into Castle Rock v. Gonzales was this gem:
[Castle Rock's] result reflects our continuing reluctance to treat the Fourteenth Amendment as a font of tort law, but it does not mean States are powerless to provide victims with personally enforceable remedies. Although the framers of the Fourteenth Amendment andthe Civil Rights Act of 1871, 17 Stat. 13 (the original source of §1983), did not create a system by which police departments are generally held financially accountable for crimes that better policing might have prevented, the people of Colorado are free to craft such a system under state law.
Slip op. at 19. Cute. Very cute. The Fourteenth Amendment should not be a "font" of tort law, since tort law is better left to the states. After all, every cause of action allowed under the Fourteenth Amendment applies to all 50 states. Scalia, it seems, interprets the Constitution with federalism in mind. Or does he?
Why did he not write the same thing of the Commerce Clause in Raich? There, he could just have easily have written: "This result reflects our continuing reluctance to treat the Commerce Clause as a general police power."
What an unprincipled jerk.