ARC's 1st Law: As a "progressive" online discussion grows longer, the probability of a nefarious reference to Karl Rove approaches one

Thursday, July 28, 2005

The International Herald Tribune on Roberts

When I read things like this, it just demonstrates that they have no clue what "original intent" or "strict constructionist" means. This tool brings up the argument that the founders could not have conceived of internet wine sales or podcasts, thus the justices of the Supreme Court should rule willy-nilly and tell us what to do, eschewing Roberts' apparent prediliction towards judicial minimalism. Here are some choice examples:

[...]
The Endangered Species Act has infuriated states' rights supporters and property rights activists, who say it gives vastly inflated importance to creatures of no proven value. The Wal-Mart developers, in Roberts's spirit, had challenged whether that act could be applied to species found in a single state. But the Supreme Court stood firm. Since the New Deal, the court has accepted a broad interpretation of interstate commerce, applying the notion even to wheat consumed on the farm where it was grown. Local matters can have wider impacts.

But in 1995, in an opinion written by Chief Justice William Rehnquist, the court set limits: a federal ban on firearms possession near schools was held to rest on an overly broad interpretation of interstate commerce. Nonetheless, Rehnquist said, the law did apply to "intrastate activities having a substantial effect on interstate commerce." Meaning what, for a cave-dwelling bug?

Roberts, in the toad case, echoed Rehnquist (for whom he once clerked): The notion of interstate commerce had been stretched too far. But still, there were arguments for toad-protection. He recommended another lower-court review; other grounds might be advanced "more consistent with Supreme Court precedent."

Yes, I am concerned about the over-reliance of the judiciary on the commerce clause to regulate almost any human activity. How 6 insects in the middle of Texas have an impact on interstate commerce is beyond me... continuing...
The judicial ambitiousness, or modesty, of the next justice could shift the balance in close cases. Roberts seems the careful minimalist, citing "the cardinal principle of judicial restraint - if it is not necessary to decide more, it is necessary not to decide more." Too much blithe adapting of the intent of the Constitution's writers, say conservatives including Bush, risks dangerous "judicial activism."

A visiting Martian might see a certain quirky quaintness in judicial reliance on words written more than two centuries ago. The Constitution, after all, saw no harm in slavery; nor were the Founders clairvoyants. Which of the Founders' words were meant to regulate, say, Internet wine sales? The downloading of podcasts? Disputes over artificial insemination? Cloning?

Relying on 18th-century eminences to answer such questions can be a strained exercise, prone to sometimes deleterious institutional conservativism. It was not until 1967, for example, that the court saw fit to overturn a ban on interracial marriage, finally allowing Richard Loving, a white man, to walk through Virginia streets holding the hand of his black wife, Mildred.

Those Martians... we really need to justify our judicial system to them, huh... With regard to slavery, I believe a Constitutional Amendment was ratified dealing with the matter - the appropriate vehicle for such matters. Yes, the original Constitution was silent on the issue - and our country paid dearly for that mistake. The Dred Scott decision could be viewed from the perspective of judges acting against Constitutional law in order to arrive at a political result (ie judicial activism). An even stronger case can be made that Plessy v. Ferguson was also an example of judicial activism. And with regard to interracial marriage, I believe the 14th Amendment would address that quite nicely... Oh, wait... that's what the court relied upon (the text of an article in the Constitution) to decide in favor of Mr. & Mrs. Loving. The justices did not say "bans on interracial marriage can continue for 25 years, until such time that they are no longer acceptable" (as they did in the Univ. of Michigan case). continuing...
Sometimes, the justices' work appears to be to say that words that once meant one thing now mean another. The world changes; society evolves; like an ancient church grappling with contraception, the justices must reconcile old principles to modern-day realities.

In this tortuous exercise, Roberts tends clearly toward caution. His opinions tend not to stray far from the statutes. When the Washington police arrested and handcuffed a 12-year-old girl for eating a French fry in the Metro system, Roberts wrote that "no one is very happy about the events." But, empathy aside, "it is not our place to second-guess such legislative judgments."

Yes, society evolves. However, the rights granted to us by our Creator do not, despite the potential tax benefits to local government. The genius that is our Constitution is that:
1 - it is not overly specific and thus leaves specificity to the LEGISLATURE; and
2 - it provides us with a high threshold to modify it, meaning that a super-majorit of idiocy must spread throughout the body politic before our Constitution gets messed up.

We have a vehicle for dealing with all of the issues that are raised in the IHT article and that the Left cares about - it's called the legislature. As Scalia said, persuade your fellow citizens and pass a law. The fact that Roberts won't stray from the statutes is comforting to me - because justices that stray from the statutes are in effect creating their own.

Your Co-Conspirator,
ARC: St Wendeler