Friday, May 13, 2005

Liberals v. Constitution

The current circus in the United States Senate over the confirmation of Presidential nominees to various posts and specifically to judicial positions is cast in many lights. The reasons vary from week to week and often depend on which audience is being addressed. The bottom-line reason is quite simple and something the Senate Democrats dare not admit: not one element of the progressive liberal party platform of the Democrats would stand if the Constitution were the guiding principle of governance in this country.

On May 9, 2001, George W. Bush said, “every judge I appoint will be a person who clearly understands the role of a judge is to interpret the law, not to legislate from the bench.” To leave no doubt about what he meant, Bush went on: “To paraphrase the third occupant of this house, James Madison, the courts exist to exercise not the will of men, but the judgement of law. My judicial nominees will know the difference.” A judge that recognizes the difference between “the will of men” and “the judgement of law” threatens every plank of the Democratic agenda. Such a person, serving for life, unassailable by political machinations and character assassinations, not beholden to campaign financing, can not easily be swayed. Such a judge would decide cases by what the Constitution actually says and not what they would like it to say.

Judicial activism is the heart of this issue. Judges who determine cases based not on what the Constitution says, but rather what they feel in their hearts, have usurped the role and authority of the Executive and Legislative branches imposing their personal beliefs upon the rest of the country in direct contravention of the guiding principle of “government of the people, by the people, and for the people.” I could discuss “the Separation of Church and State,” a which does not exist within the Constitution (it is found in a personal letter mailed twelve years after ratification of the Constitution and written by a man who was not even involved in the Constitutional debates - he was in France), but I won’t just now. A review of the “right to privacy” or the “right to abortion,” neither of which are granted within the Constitution, quickly exposes the element of political bias inherent in judicial activism. But those are hot-button issues, so let’s take something more innocuous, such as interstate commerce.

Article I, section 8, of the Constitution grants the federal government the power “to regulate commerce with foreign nations and among the several States” - known in common parlance as the commerce clause. That seems fairly straightforward and reasonable. Under the Articles of Confederation, each individual state was completely autonomous and even printed their own money. That made interstate issues very murky and complicated. By ceding some of this authority to a centralized federal government many of those issues were ameliorated. From 1787 through 1936, the Supreme Court upheld the primacy of the people and states to govern commerce within their own boundaries, as specifically written in the Constitution.

Gibbons v. Ogden established in 1824 that Congress’ power was to regulate interstate commerce but not “commerce, which is completely internal, which is carried on between man and man in a State, or between different parts of the same State, and which does not extend to or affect other States.” Railroad Retirement Board v. Alton R. Co. found that “a pension plan thus imposed [by the 1934 Railroad Retirement Act] is in no proper sense a regulation of the activity of interstate transportation. It is an attempt for social ends to impose by sheer fiat non-contractual incidents upon the relation of employer and employee, not as a rule or regulation of commerce and transportation between the States, but as a means of assuring a particular class of employees against old age dependency.” In the1934 case Schechter Poultry Corp. v. United States, the Court commented that “if the commerce clause were construed to reach all enterprises and transactions which could be said to have an indirect effect upon interstate commerce, the federal authority would embrace practically all the activities of the people.” The balance of power was further clarified in 1936 when the Court decided Carter v. Carter Coal Company. The Court was crystal clear: “Much stress is put upon the evils which come from the struggle between employers and employees over the matter of wages, working conditions, the right to collective bargaining, etc., and the resulting strikes....and it is insisted that interstate commerce is greatly affected thereby. But...the conclusive answer is that the evils are all local evils over which the federal government has no legislative control.”

The imbalance of power between the branches of government and between the federal and state governments began in 1937 when the Supreme Court used National Labor Relations Board v Jones & Laughlin Steel Corporation to give the commerce clause real claws. The judges found that “intrastate activities that ‘have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions’ are within Congress’ power to regulate (emphasis added).” Note that this decision is a complete 180 from Gibbons v. Ogden and Schechter Poultry Corp. v. United States, as well as, being in direct contravention of the terms of the Constitution. This was a stretch that, by judicial fiat, appropriated states’ rights and granted them to Congress.

The commerce claws were sharpened in 1942. An Ohio dairy farmer, Roscoe Filburn, grew wheat which he used to re-seed to grow more wheat, feed his livestock, make flour, and (if the harvest allowed) sell. Under the 1938 federal Agricultural Adjustment Act, Filburn was fined for exceeding his farm’s marketing quota and he chose to sue rather than pay. The Supreme Court’s reasoning in Wickard v. Filburn went like this: “It can hardly be denied that a factor of such volume and variability as home-consumed wheat would have a substantial influence on price and market conditions. But if we assume that it is never marketed, it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce. The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon.” Thus, any farmer or businessman who consumes his own produce or stock affects the market and is in the purview of Congress to regulate. Apart from being absurd on it’s face, this decision again violated the Constitution and ignored Schechter Poultry Corp. v. United States. The Court should have struck down the federal statute setting quotas on farmers citing Gibbons v Ogden.

The Supreme Court took the opportunity of Maryland v. Wirtz in 1968 to use commerce to ratify the Fair Labor Standards Act (which should have been struck down via Carter v. Carter Coal Company) by claiming “labor conditions in schools and hospitals can affect commerce” and ignoring Railroad Retirement Board v. Alton R. Co. Continuing the trend, Perez v. United States in 1971 makes the crime of loan sharking a federal crime even when it occurs at the neighborhood level. Justice Potter Steward dissented noting “a man can be convicted without any proof of interstate movement...the Framers of the Constitution never intended that the National Government might define as a crime and prosecute such wholly local activity through the enactment of federal criminal laws.”

The trend descended to the ridiculous in United States v. Lopez (1995) where the commerce clause was incurred to regulate firearms in school zones. It should be noted that the attempt failed and Justice Rehnquist found “the possession of a gun in a local school zone is in no sense an economic activity.” However, in dissent Justice Breyer outlined an exhaustive review of the facts that prove violence in schools has reached epidemic status and notes that “having found that guns in schools significantly undermine the quality of education in our Nation’s classrooms, Congress could also have found, given the effect of education upon interstate and foreign commerce, that gun-related violence in and around schools is a commercial, as well as a human, problem.” And if you thought it couldn’t go lower, in 2000 United States v. Morrison asked the Supreme Court to find that gender-based violence is covered by the commerce clause! Rehnquist said “gender-motivated crimes of violence are not, in any sense of the phrase, economic activity,” if it were, he added, all crimes would have to be considered federal crimes.

What kind of mind interprets a clause granting sovereignty over interstate trade as a mandate to prosecute sexual harassment? Where does this thinking come from? If judicial activism is at the heart of the liberal agenda, then incrementalism must be the heart of judicial activism. A word inserted in a ruling creates a right derived from that ruling years down the line. That right begets another. Those rights require the imposition of laws to protect them. Insidiously, step-by-step, the agenda is accomplished. What began as regulation governing trade across state lines grew to encompass labor laws, unions, minimum wage rights, farm production quotas, street crimes, even sex crimes. All of these issues are, by the letter and intent of the Constitution, the purview of the “We the People” via the representatives we elect to our state governments, not Congress, and certainly not unelected judges. It is the old rubric about absolute power. Unable to attain these goals at the ballot box, exercising control legitimately, the liberal agenda is accomplished through the court system. Which is why the Senate Democrats oppose President Bush’s nominees. Should they be confirmed, cases would be decided by what the Constitution actually says, not by what the liberal agenda wants.

Next week the more radical face of judicial activism and the question - is it really good for America?

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