- The Washington Times - Saturday, May 27, 2000

Beware of more violence against the Constitution

In its May 17 editorial "Violence Against Constitution Act," The Washington Times applauds the Supreme Court for its May 15 decision in United States vs. Morrison, finding that certain provisions of the Violence Against Women Act were unconstitutional because they transgressed the balance of power the framers established between state and federal authority.

According to the court's one-vote majority, Congress could not simply make "findings" that gender-based violence is related to interstate commerce, but must show a connection that, as Chief Justice William H. Rehnquist wrote, was more than "attenuated" and had some describable limits to it. Although it is not clear how far the Supreme Court's narrowing of the congressional power to regulate commerce will go, the court has shown that it will not automatically defer to Congress' judgment on these matters, especially where the underlying conduct does not involve a traditional commercial activity.

In 1995, the Supreme Court struck down a federal law which also was based on the Commerce Clause that made it a federal crime to have a gun in a public school. Despite this precedent, The Times was concerned about whether the court "would continue to abide by this principle [of keeping federal power in check] notwithstanding the temptation to violate it in the name of a good cause: doing justice to alleged rape victims," and was relieved by the "good news" that it stuck to the Constitution.

Congress has before it another bill, with another temptation, with another supposed good cause the protection of small business with the same attempted interstate-commerce justification the court rejected last week.

Title I of HR 2366 (Small Business Liability Reform Act of 2000) provides generally for two new defenses in suits against small businesses:

First, it sets a federal minimum standard of proof before punitive damages may be awarded, and it caps those damages at the lower of three times actual losses or $250,000, unless the plaintiff can show that the business acted with specific intent to cause the harm suffered.

Second, it alters state "joint and several liability" rules, under which each party that is found responsible for the plaintiff's injuries is liable for the full amount of the damages awarded. Instead of collecting from one defendant, which then has the right to collect the shares owed by the other defendants, the bill limits a plaintiff to collecting the share owed by each defendant.

Public Citizen opposes this legislation because, although offered "in the name of a good cause," it would unnecessarily harm innocent victims of negligence and other forms of malfeasance.

Obviously, its sponsors, many of whom are avowed conservatives, think otherwise, but the question they (and The Times ) should ask is whether that result is consistent with principles of federalism and the increasingly narrow reach of the Commerce Clause. After all, Title I of HR 2366 is not limited to products that travel in interstate commerce, as is another part of the bill, but encompasses every kind of injury, from auto accidents to a fall on a sidewalk to legal or medical malpractice. The so-called findings in the bill, which purport to justify it under the Commerce Clause, are even more general than those rejected by the court in the case involving the Violence Against Women Act. Moreover, most of the lawsuits that would be affected by the bill would have an interstate connection that would be "attenuated" at best.

The first issue Congress must confront is not whether this bill is a good idea, but whether the federal government ought to be overriding state laws that have no discernible relation to interstate commerce.

The Times hit the nail on the head when it concluded, "The liberty that comes of spreading authority between federal and state governments constitutionally, rather than allowing it to reside in one all-powerful central jurisdiction, depends on the Supreme Court's ability to keep these principles straight."

We would add: "and Congress' willingness to take those limits seriously." For true conservatives, this one ought to be easy: Oppose HR 2366 because it does not come close to satisfying the Constitution.


Co-founder and director

Public Citizen


D.C. buyback program cheats gun owners

As the politically correct marched once more in lockstep admiration of Washington's gun-buyback program, one aspect was overlooked: These programs often cheat the poor and uninformed ("Firearms for cash draws droves," Metropolitan, May 19).

Whether the coastal urban elite like it or not, guns are still legal products in most of this country and, as such, have intrinsic value that may exceed the $50 or $100 offered for each gun in the District's buyback program.

From what I have seen, most of what was turned into the District's program was junk that may not have been worth $50 or $100. From time to time, however, the ceremonial pictures taken of this event showed items that may have had far greater value.

Your article indicates someone turned in an 1898 Remington "Targetmaster" rifle. Consulting Flayderman's Guide to Antique American Firearms & Their Values, I could not find the "Targetmaster," but I did find a number of target rifles produced by the Remington company during that period. Most have a value of $2,000 to $3,000, depending on model, caliber and condition. One model had a potential value of up to $35,000.

Most certainly the person who turned in this item got cheated.


Ashburn, Va.

Wagnerian healing: Cure or ailment?

James Goldsborough's "Wagnerian prelude to healing" (Commentary, April 16) was quite interesting in that it brought up a cultural and social problem that has been plaguing Israel ever since Zubin Mehta attempted to sneak an excerpt from an opera by Richard Wagner into an Israel Philharmonic Orchestra subscription series concert in 1981.

The unofficial ban on Wagner's music from the country's major orchestras grew out of Kristallnacht, the night of broken glass in 1938, when European Jews got a preview of what was to befall them under the German Third Reich.

Now, however, Mr. Goldsborough speaks of Germany's efforts to confront the past, including reconciliation between Germans and Jews and the endeavor among Israelis to wipe the slate clean with the contemporary generation of Germans, not holding them responsible for the horrible crimes against humanity that occurred during the times of their parents and grandparents.

His argument is most convincing, at least until his introduction of what philosopher Ludwig Wittgenstein would have called a one-sided diet of arguments. Mr. Goldsborough inadvertently has taken a giant step backward from historical accuracy to questionable speculation, ending in a string of dangerous and untrue cliches.

Possibly the most inaccurate, damaging and oft-repeated one is the charge that anti-Semitism was rampant in Germany in the late 19th century. Overlooked is that from 1850 to 1870, the decline of anti-Semitism in the nation led to the inclusion of equal rights for the Jews in the North German Confederation's constitution.

It was during these very same years, however, that Wagner issued and then reissued his infamous "Jewry in Music," damning Jews of all walks of life. More than a decade later, in an increasingly intensified campaign against Jews, Wagner in a piece titled "Know Thyself" laid out his "great solution," in which he called on the German people to "awake" from their slumber and said "there will no longer be any Jews," a call that later became the cornerstone of Adolf Hitler's campaign against European Jewry.

Mr. Goldsborough's column followed an announcement by Ehud Gross, director general of the Israel Symphony Orchestra of Rishon Lezion, that he would include one of Wagner's musical compositions in next season's program.

The stance Mendi Rotan, the orchestra's conductor, has taken to break the unofficial boycott of Wagner's music by scheduling an October performance of his "Siegfried Idyll" is particularly unfortunate.

As reported in many of American papers, the 71-year-old Mr. Rotan, whose father and uncle were killed by the Nazis when he was 12, says he considers performing Wagner to be a kind of revenge an act of cultural freedom the Nazis wouldn't have tolerated.

What he forgets, however, is that though the last Jewish conductor was driven from the German-Austrian scene in 1938, seven years before Hitler's death and the collapse of Nazi rule, Wagner spent decades calling for a boycott of Jewish composers, musicians and performers.

There should be no rush to play Wagner's music in Israel. The country has for the past 60 years maintained one of the world's finest orchestras without it. It's doubtful its place in the pecking order of orchestras will crest by this untimely step.



Eugene Blum is working on a political biography of Richard Wagner.

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