A couple of weeks ago, I wrote in these pages that Senator “Chuck” Schumer broke his own record for ignorance of the judicial system following President Bush’s announcement of John Roberts’ nomination to the Supreme Court. In insisting that Roberts articulate positions on current legal issues confronting the Court, Schumer proved that he does not understand Separation of Powers, and thus the Constitution’s mandated role for a judge in the American system of government, believing instead that the judiciary is simply another political branch. I observed that Roberts is a nominee to a judgeship, where his task is not to legislate (Article I of the Constitution), but rather to serve under Article III: “The judicial power of the United States, shall be vested in one supreme Court . . . .” That “judicial power” is the power to interpret and apply the Constitution and laws promulgated not by judges, but by legislators—provided, however, that the latter do their job right.
Which brings us to Senate Judiciary Committee Chairperson, Republican Arlen Specter. He has apparently informed Judge Roberts to expect “tough questions” about the Court’s “judicial activism” and alleged lack of respect for Congress. Proving that he does not understand Federalism, Specter cited as an example of “judicial activism” the case of United States v. Morrison—a 5-4 Supreme Court decision pitting a Rehnquist, O’Connor, Scalia, Kennedy, and Thomas majority against a Stevens, Souter, Ginsburg, and Breyer minority.
Article I of the Constitution provides that “The Congress shall have the Power . . . To regulate Commerce . . . among the several States . . . .” Supreme Court decisions have ruled that the exercise of this delegated power requires more than a nominal—some cases say “substantial”—connection between the subject of the legislation and commerce that is interstate. Thus, it would [probably] be unconstitutional for Congress to pass a law prohibiting barbershops from giving shaves.
Purportedly pursuant to that power, Congress passed the Violence Against Women Act, which provided a federal civil damages remedy for the victims of gender-motivated violence. After Christy Brzonkala was viciously raped by three fellow students at Virginia Polytechnic Institute, she sued. The question for the Supreme Court was not whether such uncivilized behavior should be punishable, but whether the federal government possessed the power to punish it—whether, in other words, Congress had the constitutional authority to enact under the Commerce Clause the Violence Against Women Act.
If Specter had read Rehnquist’s opinion, the Chairperson would have seen that the Chief Justice began by expressly recognizing that “[d]ue respect for the decisions of a coordinate branch of Government demands that we invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds.” Thus, there is a “presumption of constitutionality.”
Next, Rehnquist acknowledged that “in the years since  Congress has had considerably greater latitude in regulating conduct and transactions under the Commerce Clause than our previous case law permitted.” (Presumably, the “judicial activism” of the post-New Deal Courts that approved of engorged Congressional power was not something Specter was complaining about).
In sum, the Court treads gently on Congressional enactments, which are presumed to be constitutional. Over the past sixty years, the power of Congress had been allowed to grow exponentially.
However, applying Supreme Court precedents and their tests for what constitutes “interstate” and “commerce,” Rehnquist’s Morrison majority concluded that “Gender-motivated crimes of violence are not, in any sense of the phrase, economic activity. * * * We accordingly reject the argument that Congress may regulate noneconomic, violent criminal conduct . . . . The Constitution requires a distinction between what is truly national and what is truly local. * * * In recognizing this fact we preserve one of the few principles that has been consistent since the Clause was adopted.”
In echoing the “judicial activism” charges against the Court made by his democrat colleagues, Specter, like them, reveals himself to be a hypocrite and a fool. A hypocrite, because he embraces the gold standard “judicial activism” of the Warren Court—which largely amended the Fourth, Fifth and Sixth Amendments and invented the “right of privacy” that later, in Roe v. Wade, wiped out fifty state laws and allowed for the murder of millions of the unborn. That’s “judicial activism”! He is a fool (“someone regarded as lacking good sense or judgment”) because, despite decades of Supreme Court obeisance to Congressional projections of legislative power using the Commerce Clause as a justification (e.g., the “public accommodations” provision of the Johnson-era Civil Rights Act), all the Court did in Morrison was prevent Congress from enacting what was, in reality, only local-type legislation.
And lest Specter ask Judge Roberts to defend, as well, an alleged callousness by Rehnquist and his majority colleagues about what befell Miss Brzonkala, the Chairperson should read the last two sentences of their opinion:
If the allegations [of her complaint] are true, no civilized system of Justice could fail to provide her a remedy for the conduct of [defendant] Morrison. But under our federal system that remedy must be provided by the Commonwealth of Virginia, and not by the United States [i.e., the federal government].
That, Mr. Chairman of the Judiciary Committee of the United States Senate, is but another way of saying that one of the three structural pillars of American constitutionalism—along with Separation of Powers and Judicial Review—is Federalism: a concept too important to be sacrificed in the name of politically correct Congressional overreaching.