Monday, September 12, 2005

Is Anything Not Interstate Commerce?

By Jacob Sullum - September 9, 2005 -

Will a Supreme Court led by John Roberts find limits to Congress' power?
William Rehnquist's most important accomplishment on the Supreme Court was to restore a modicum of respect for constitutional limits on federal authority—not the limits imposed by specified individual rights but the more fundamental and potentially more consequential limits imposed by insisting that congressional acts be grounded in specifically enumerated constitutional powers. Rehnquist's signal contribution was to remind Congress, his colleagues, and the nation that a wide-ranging federal power to do good things does not exist.

It is truly interesting that the first attacks on Alberto Gonzalez were that he allowed a law that permitted an abortion without parental consent to be enforced. The hypocrisy of this position by conservatives is sad. When the courts stripped state legislatures of the power to legislate abortion, they were aghast at the "activism" it represented. For Gonzalez to ignore the state law in question would require the same activism that conservatives so decried. However to them, it would have been activism in favor of their positions, and that is what they want. I don't.

I am convinced that our nation will not survive until the courts are forced to return to their proper role under the Constitution. That means they do not "make law", but follow the rule of law.

Rhenquist was not as diligent a follower of this principle as implied in this article. He was perfectly willing to tolerate activism that enhanced court power, as long as it was not subject to legislative interference. However he was far better than most. As noted in this article, even Scalia has been willing to cede power to the legislature to expand federalism beyond its proper role, if it supports one of his pet peeves, drugs. When conservatives get so exercised about the lack of "pure" conservative credentials as those of Gonzalez, I would love to have them defend Scalia's actions in this regard.


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