Judicial Extremism and the Constitution in Exile

The most talked about article of the day is bound to be Jeffrey Rosen's nine page article in the Sunday New York Times Magazine, The Unregluated Offensive."

Since I oppose Congress' use of the commerce clause to federalize crimes that should be left to the discretion of the states, I can't endorse everything in this article, even though the article focuses on property and economic issues.

Using the commerce clause to federalize every gun crime; to override state laws legalizing medical marijuana; to make carjacking and gang crimes federal offenses; to create more federal death penalties; to federalize domestic violence crimes; and to create a national Amber Alert bill, Laci's Law and Megan's Law, is wrong.

And day now the Supreme Court will decide Raich v. Ashcroft:

Ashcroft v. Raich may redefine the boundaries of the federal government's definition of "interstate commerce." Drug Enforcement Agency agents confiscated and destroyed cannabis plants in the California home of Diane Monson in 2002 under the guidelines of the Federal Controlled Substances Act. But, under the California Compassionate Use Act of 1996 - a state law - Monson was allowed to have the plants for medical use. Does the Federal Government have the right to ban medical marijuana use and acts associated with the growing of marijuana for medical purposes under the Commerce Clause of the United States Constitution?

I'm hoping the answer will be "no." But so are the Exilists, who are the subject of Rosen's article. That's one reason it is important to distinguish between "activist judges" and "extremist judges."

The reason to oppose judges like Janice Rogers Brown, William Meyers and William Pryor, is because they are ideologues and extremists. As the New York Times opined after the 2002 election,

Despite President Bush's campaign promise to "unite, not divide," many of his judicial nominees have done the reverse. They favor taking away the right to abortion, striking down reasonable environmental regulations and turning back the clock on race. (One pending nominee at one point criticized the Supreme Court's ruling that Bob Jones University should lose its tax-exempt status for discriminating against black students.) With the Senate in Republican control, the administration is likely to choose even more troubling nominees.

Senate Democrats should also make it clear that they will not accept extremist nominees. They must draw a line in the sand and say that those whose politics cross it will not be confirmed.

Democrats in the Senate no longer control the Judiciary Committee, which has until now been screening out the worst nominees, and cannot win party-line votes. But they should reach out to moderate Republican senators and build a mainstream coalition. And when a judicial nominee is unacceptable, they should not be afraid to mount a filibuster, which Republicans would need 60 votes to overcome.

Rumors have been swirling around Washington that there could be one or more Supreme Court vacancies in the next few months, making the stakes as high as can be. With the White House representing the far right in the nominating process, it remains up to the Senate — even in its new configuration — to represent the rest of the country.

All of which is another reason to oppose Bill Frist and the nuclear option and to preserve the filibuster.

Update: Rosen says Law Professor Cass Sunstein is about to publish a book on the Exile movement called "Fundamentally Wrong." I'm willing to learn, but an op-ed written by Sunstein days after the November, 2002 election on the topic failed to impress me. . In fact, I agreed with Instapundit more than him. The op-ed was clearly a forerunner to the new book - the archived New York Times page on which it was published describes the subject as "conservative courts likely to strike down laws that have bipartisan support" and "activists seeking to limit power of Congress and states."

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    Although I'm not sure about the Constitution in Exile group, I do believe that the Commerce Clause has been interpreted in such a way that it drives a giant, gaping hole through the Constitution. What the modern interpretation of the Commerce clause basically says, is that if the Constitution doesn't specifically prohibit it, the federal government can do it. Which is an interpretation that is completely at odds with the plain language of the 9th and 10th amendments. Therefore, any interpretation of any clause, like the commerce clause and the general welfare clause, that allows for virtually unlimited federal power, has to be incorrect. Then there's the first 150 years of judicial precedence... And remember when the government needed a Constitutional amendment to ban alcohol? Why don't they have to get one to ban marijuana? If they wanted to ban alcohol today, does anyone doubt the FTC could just do it by fiat?

    I never understood this application of commerce regulation. The Repubs have certainly wasted no time in violating every tenet of their small federal government/states rights philosophy - the orgy of those drunk on power continues. A sign of these bizarre times is that the White House not only supported but entered a lawsuit brought by the auto industry against tougher emissions standards passed by the State of CA. On the auto makers side! Their argument was that any emissions legislation affected FEDERAL regulation on fuel efficiency or something like that therefore they claimed the right to join with the auto industry in suing the state of CA.

    Well, I think an attempt to ban alcohol using the Commerce power would provide an excellent illustration of the "process theory" underlying the modern interpretation of the commerce clause. The idea is basically that the political system provides the check on federal abuse of the Commerce power because we can all just vote people out. While I generally think process theory is pretty naive to the realities of modern politics, I'm fairly certain that an attempt to use the Commerce power to ban (not just regulate) something like alcohol, which has a lot of money to fight back, would provoke a serious effort to vote people out of office.

    I'd also note that while I agree that the use of the Commerce power to create federal crimes is unfortunate, I'm not sure how you can get rid of those without also abandoning the same (police power) authority that permits federal regulation on civil rights and other health/safety issues.

    Civil rights issues are well protected by the equal protection clause of the 14th amendment. Extension of commerce protection may have some impact, but civil rights issues would not be hamstrung by changes in the way the commerce clause is interpreted. Health and safety, yes, but those issues are pretty fundamental to commerce, it's not like the commerce extension of federal control of marijuana prosecution on the basis that contraband grown and consumed in the same county somehow affects the illegal interstate commerce in contraband. That one is a bit of a stretch. The Court has reason to be careful in broad interpretation of the commerce clause.

    Pity health and safety are less protected: '(a) Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion [mind you, a non-existent medical term/procedure] and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both.

    The bill of rights is dead, so why not just go for the third world way of government, legalizing government mass murder, federalize all crimes like talking out against government. I can understand the need for control over all people and the coming government classifying by race of all people for camp political reasons, after all our government and our ideals of law are now dead,dead,dead. Yes lets all join the red Communist party so we can be saved, what a joke, that is where you are going, the coming stalin camps in the USA.

    Re: Judicial Extremism and the Constitution in Exi (none / 0) (#9)
    by cp on Sun Apr 17, 2005 at 09:04:43 PM EST
    to argue, with a straight face, that the authors of the constitution intended it to be interpreted solely on the basis of society as of 1789, requires a complete suspension of belief in said author's intelligence. of course they intended, and fully expected it would, change over the course of the country's history. were that not the case, they would never have provided the most obvious mechanism for that change: the ability to amend it. geez, they even gave us a running start: the bill of rights, the first ten amendments. for this very same reason, the "exilists" position holds no legitimate water either. again, the authors weren't stupid. there is a built in bar to the federal government drifting too far from its primary function: election day. if the greater majority of the voting population feels that congress has overstepped its constitutional bounds, they will vote them out of office. the ultimate check and balance. presumably, the vast majority of the voting public wants a federal role in clean air & water, as well as worker safety. since they are footing the tab for it, electing politicians who support it, and indirectly, the judges who opine favorably on it, than it is the will of the governed. this, after all, is what the ffs had in mind, more or less, to begin with.

    CP, Generally I agree with you, but you put a blur in your argument. I do not believe the Founders expected the Constitution to remain the same after 1789 and gave the mechanism of amendment. But on what other basis can you interpret what they wrote in 1789 but their culture and beliefs at the time - which is why there is amendment.

    The 'founding fathers' couldn't agree and settled on a compromise that allowed, even instituted, a mechanism for change. Scalia should be impeached for advocating slavery.

    No, since the culture and beliefs of the country transformed - a constitutional amendment or two were passed - which means 1789 became irrelevant in regards to slavery.

    Re: Judicial Extremism and the Constitution in Exi (none / 0) (#14)
    by Sailor on Mon Apr 18, 2005 at 11:01:25 PM EST
    JCHFleetguy, the point was that scalia opines, and allegedly rules, under 'original meaning' of the constitution. Do you and I agree that scalia is wrong?

    Sailor So what? Kennedy doesn't even use the Constitution, he uses "international opinion" Which is worse? *Hint: One interprets the Constitution, the other interprets "international opinion".

    As I said above, the framers knew that society, beliefs, ethics, morals etc would change and therefore created the amendment process to change the Constitution. You can only interpret the constitution by the society, beliefs, ethics, morals of the people who wrote it, and therefore need to use the amendment process to change it. On the slavery question, the original society, beliefs, ethics, morals, etc. are not those of the 1789 founders; but those of the post-Civil War amenders (and I am sure Scalia would agree). So if you believe that we should be strict in interpreting the constitution; and amend it when we have outgrown its restraints then we agree. That process demands a political battle for the hearts and minds of the majority - a long term process few seem to have the patience for.

    Re: Judicial Extremism and the Constitution in Exi (none / 0) (#17)
    by Sailor on Mon Apr 18, 2005 at 11:59:10 PM EST
    JCHFleetguy, we agree, that is why a woman's right to choose is legal, and why slavery is illegal. slavery was practiced by the founders, why would you say it wasn't their intent? Or scalia's opinion, given his views on the constitution?

    I think privacy for an abortion was a stretch - not the concept being included in the 9th as another right - but leaving out the rights of unborn until 2nd trimester. The SC did a good job that being said in looking at common law and church practice in 1789. Outside the dubious (to me) privacy coverage, I do not think Roe v Wade was unduly "legislative" I would assume (I know what that means) that once the 14th and 15th were passed - Scalia would look for "orginal intent" in those who drafted and passed those amendments; not the founders. I think that is the balance between judicial interpretation as a means of broadening the constitution and political action.

    I have several thoughts on this subject. First of all, the idea that we can ascertain the founding father's original intent is absurd on its face. How can we distill one "original intent" when there was often little consensus among the founding fathers. Does anyone doubt that founding fathers Thomas Jefferson, Alexander Hamilton, James Madison, and Thomas Paine all had vastly different takes on the federal government. Second, although I believe that the federal government has went too far by banning medicinal marijuana, I strongly disagree with the notion that the commerce clause should be so narrowly construed that economic regulations such as labor laws enacted to protect workers, discrimination laws, and environmental regulations should be overturned. Furthermore, I think that the late Chief Justice John Marshall would agree with my assessment that Congress's power under the "commerce clause" and the "necessary and proper clause" should not be so narrowly construed. In determining whether Congress had the authority under the U.S. Constitution to create a national bank, Chief Justice Marshall in McCulloch v. Maryland noted among other things that the necessary and proper clause "is made in a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs. To have prescribed the means by which government should, in all future time, execute its powers, would have been to change, entirely, the character of the instrument, and give it the properties of a legal code. It would have been an unwise attempt to provide, by immutable rules, for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur." In think this language not only makes it clear that Chief Justice Marshall believed that Congress has broad authority to act under its enumerated powers, including the commerce clause, but this language also appears to support the notion of a living constitution, which is so reviled by today's conservatives. Finally, many conservatives recently have been talking about "judicial activism," and they have cited the Supreme Court example of Lawrence v. Texas as an example of judicial activism, where the courts have read certain rights into the Constitution that aren't expressly mentioned in the Bill of Rights. (Never mind the Ninth Amendment, which states that "the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.") If these right wing nuts had their way, law enforcement officers could storm into your bedroom pursuant to an outdated sodomy statute for express purpose of having sex in a way that these nuts deem innapropriate. However, these same right wing nuts don't seem to have any problem with the Courts taking power away from Congress if the powers that are taken away are powers that allow Congress to protect citizens from economic exploitation, discrimination, or pollution. Their hypocrisy on this issue is uncanny.