Scalia’s Wise Dissent

Critics of Justice Scalia’s dissent have lambasted him for his reference to Obama and have mocked his admission that his mind was ‘boggled’ by the government’s arguments. Yet none has addressed the heart of his quite powerful argument.

In the wake of the Supreme Court’s ruling on Arizona’s immigration law, I came across several liberal commentators who treated Justice Scalia’s dissent as if it were the ravings of an unhinged lunatic. Naturally, I expected a bit of bias on their part, and decided to look over Scalia’s dissent for myself. As I glanced over it, I was struck by the names of two long-dead European thinkers whom Justice Scalia cited, Samuel von Pufendorf and Emer de Vattel. This grabbed my attention. Why Vattel and Pufendorf, I wondered. Was Justice Scalia simply showing off his erudition or had his hatred of Obama driven him to find solace in musty old volumes of antiquated philosophical musings? At any rate, I was intrigued, and promptly began to examine Scalia’s argument, along with Justice Kennedy’s opinions and the dissents of Justice Thomas and Justice Alito. Eventually, after some reflection, I began to see what Justice Scalia was up to.
To understand the logic of Scalia’s dissent, we must begin with the basic principle of American federalism, which, in delivering the court’s opinion on the Arizona case, Justice Kennedy lucidly explained as follows:

Federalism, central to the constitutional design, adopts the principle that both the national and state governments have elements of sovereignty the other is bound to respect… From the existence of two sovereigns follows the possibility that laws can be in conflict or at cross-purposes. The Supremacy Clause provides a clear rule that federal law “shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Art. VI, cl. 2. Under this principle, Congress has the power to preempt state law.

The power to exclude is not merely an element of sovereignty that the federal government is ‘bound to respect,’ it is the very foundation of having any claim to sovereignty at all.

There is nothing controversial here. All nine justices of the court, along with nearly everyone else in the United States, would agree that this is a correct characterization of American federalism. For eight of the justices, the issue was simply whether or not Arizona, as a sovereign state, was infringing on the sovereignty of the national government when it passed its controversial immigration law. With the exception of Justice Scalia, all the justices advanced arguments for their decision that were solely based on normal considerations of constitutional law. Justice Thomas, who saw nothing amiss in the Arizona law, did not feel the need to quote Vattel or Pufendorf to defend his opinion against the majority of the court. So why did Scalia drag these largely forgotten names into the text of his dissent? The answer to this question lies in the perennially wobbly keystone of the federalist design—the concept of “two sovereigns.”

Read more: http://www.american.com/archive/2012/july/scalias-wise-dissent