Just because I think a particular school of interpretation is unwise has nothing to do with what I view as the role of the Senate being.
I may personally disagree with a nominee’s approach, but if the nominee is qualified, I think it’s my duty to vote to confirm. As a senator, I owe the President deference on his picks. He is the one that gets to choose the nominee.
I might well have voted against Ms. Miers - as I noted in another thread, her responses to the questionnaire were lacking in intellectual heft - but I’d have voted for Ginsburg, Stevens, Breyer, Souter, O’Connor, Kennedy, Scalia, and Thomas. And Rhenquist twice.
This despite the fact that I believe Stevens’ and Ginsburg’s approaches are unwise. But that’s a matter of opinion. As a matter of objective determination, they are qualified. And selecting them for opinions about how wise their approaches are is the perogative of the President.
Bad, bad, awful example. In Wickard, the courts upheld a congressional act regulating the production of wheat, even where the wheat in question was grown for strictly personal use.
Wickard is a questionable case, and an example of overly-expansive commerce clause jurisprudence, but it is not an activist decision. The court was not replacing its own judgment for the judgment of the legislature. Indeed, if anything, Wickard is an example of too much judicial deference to the legislature.
A better example is, of course, Lochner, where the court did in fact use such judgment-substitution.
The question was: Otherwise, would you be so kind as to cite and link to an important case in which judges did whatever they pleased totally without regard to the written law?
I’ll grant it was a bad example in that they did pay attention to one written law: Congress’. But they did so by totally ignoring the supreme law of the land, with which Congress’ law clearly conflicted.
The court was elevating its judgement, and the judgement of the legislature, over the judgement of the super-legislature, if you will.
How so? There is a commerce clause, after all, and it does in fact give to Congress the power to regulate interstate commerce. We can – and should – argue about the scope of what is or is not “interstate commerce,” but you really can’t say the court “ignored” the text of the constitution, or that the Congressional act “clearly” conflicted with anything.
Wickard may be wrongheaded from a commonsense point of view, but it is perfectly and eminently defensible as a matter of logic. And the “effects test” that leads inexorably to Wickard as its ultimate conclusion is far more consistent and sensible than the hodgepodge of ad hoc tests that previously existed.
Which is why, as I always say, the high court should get out of the commerce clause business entirely: the court should simply admit that the commerce power is effectively all power, and that what is or is not “interstate commerce” is simply a political question to be decided by the political branches. That, at least, would end the granting of judicial approval to acts like the one in Wickard, and require Congress to make some effort to justify its own actions rather than simply saying “that’s a matter for the courts.”
In a sense. I would just go one further and have the court cease review on commerce clause grounds entirely. That would prevent giving the patina of judical approval to truly twisted commerce clause rationales.
Then – and this is the mirror image of Bricker’s concerns, expressed elsewhere – what would stop the legislative majority from passing all kinds of crazy laws?
If the result of the Court’s interpretation of the commerce clause is that Congress has unrestricted power to regulate any aspect of any behavior… then, yes, I can say that the court ignored the text.
A fair a reasonable reading of “regulate interstate commerce” does not end up being parsed as “regulate everything,” especially when it’s surrounded by other specific grants of power.
Hey, I know the proper response to this one: Legislators are only concerned with the will of the voting plurality. Concern for re-election will not hinder them from passing laws targeted at – and against – political minorities. Besides, you checked out those incumbency rates lately?
cmkeller for the win. That’s exactly right. The solution to an overly expansive federal government is to vote the bums out.
Bricker, everyone loves to bitch about Wickard, but no one ever wants to devise a reasonable alternative test to the effects test.
The interstate commerce clause is effectively a massive oversight on the part of the founders: the power to regulate interstate commerce is effectively the power to regulate everything. We should admit to this simple truth, rather than continuing to deny its existence.
We see this happening in other countries: the economic compact that led to the EU has, over time, encroached on surprising areas of ostensibly noneconomic life in the EU’s member countries.
To follow up, let’s take a variation of Lopez. Congress passes a law prohibiting the possession of firearms within one hundred yards of any school, playground, library, or “other public area likely to be frequented by children.” If the courts have no power to review under the commerce clause, there is no constitutional basis for taking a look at the scope of this law. The group being targeted – gun owners – is, of course, not a suspect class under the Fourteenth Amendment. Any Tenth Amendment argument is extremely tenuous. And – for the purposes of this hypothetical – let’s suppose that the congresspeople voting in favor of this law polled their constituencies and found more in favor of it than against. (The hypothetical poll question was “Do you favor legislation that will prevent children from being killed or injured by gun violence?”, but that’s neither here nor there.) You’re saying – and I guess I’ll address this to Dewey – that gun owners would have no recourse but to lobby Congress to change the law down the road or, alternatively, to try and sway public opinion on their own?
I strongly disagree with that. The commerce clause, especially in the context of the much else in the constitution, is a limitation on the ability of the federal government to meddle in the internal affairs of the states. If the founders wanted it to be the power to regulate “everything”, why include the term “interstate” at all? Clearly that word must mean something. It’s not just some throw-away term, or one that can many different things to many different people (like “cruel and unusual”).
I note that I’m only speaking of commerce clause jurisprudence here. Other constitutional proscriptions should, of course, be enforced by the judiciary.
As for your followup, and ignoring any (tenuous) second amendment objections in addition to the other constitutional provisions you list, then yes, that is the remedy: lobbying and public persuasion.
Something for which we have only ourselves to blame.
However, electorate uprisings can and do happen: see, e.g., the 1994 Congressional elections.
It’s not a matter of making it a throwaway term or otherwise ignoring it; it’s a matter of recognizing how pervasive interstate commerce is in our daily lives. That is a fact of life that cannot be ignored.
I think the founders were kidding themselves when they implied interstate and intrastate commerce can be meaningfully distinguished and then further separated from noneconomic life (as if there is such a thing). And even if such a thing was possible in 1787 – a proposition for which I have severe doubts – it is surely impossible in our modern, interconnected society.
I guess that’s what it boils down to. I’m less inclined to put thorough-going trust in the capacity of the voting plurality to be civic-minded and aware than are you or Professor Tushnet or Professor Ackerman.
My own view of the dynamic between the courts and the legislatures is essentially fatalistic and centripetal; I can expound on it if you want.
[QUOTE=Dewey Cheatem Undhow]
Something for which we have only ourselves to blame.
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I think a fair amount of the blame can be parcelled out to our system of allowing incumbent politicians to draw electoral district maps, and of giving the party in power control over the electoral machinery, witness Tom DeLay’s recent shenanigans in Texas. I’ll also grant you that both parties engage in this sort of thing. Be nice if we could have the free and fair elections we encourage other nations to.
Agreed-- there is no question that interstate commerce is much more complicated than it was in the late 1700s (not to Gaderene: I agree with your post).
However, it isn’t so expansive that limits can’t still be placed on federal authority. Supposing I set up a fence painting company that opperates only within one state. How does the federal gov’t justify imposing a minimum wage requirement on my company? I am painting fences, and those fences aren’t being “exported” across state lines. Now, if I expanding my business to painting the boards to be used in fence construction, and those boards were exported across state lines, there could be a case made. But all I have is a little fence painting company.