- The Washington Times - Monday, August 29, 2005

In companion letters to Supreme Court nominee John G. Roberts, Jr., Sen. Arlen Specter, Pennsylvania Republican and Senate Judiciary Committee chairman, assails recent decisions defanging Congress’ power to achieve social objectives under the banner of regulating interstate commerce. The chairman further scolds the Supreme Court for arresting congressional authority to invade state sovereignty under section 5 of the 14th Amendment whenever Congress pronounces a need to remedy wayward state action. According to Mr. Specter, the court usurps legislative discretion and defiles judicial restraint whenever it subjects Congress to limitations imposed by the Constitution.

The Judiciary Committee chairman intends to amplify these ill-conceived views in questioning nominee Judge Roberts at his confirmation hearings. An advance rebuttal is appropriate to enable the public appraisal of Mr. Specter’s performance.

The Constitutional Convention of 1787 was convoked primarily to overcome divisive and economically stultifying trade wars among the states. Congress was endowed with power to regulate interstate commerce under Article I, section 3 to foster national markets and to nullify parochial state trade barriers that burdened out-of-state competitors.

Neither the history nor purpose nor language of the Commerce Clause supports its manipulation to attain noneconomic objectives by regulating noneconomic activity that state governments are empowered to address. Father of the Constitution, James Madison, instructed that the intent of the Framers must govern its interpretation to keep all branches of the federal government and states properly restrained. Article V authorized amendments to prevent the Constitution’s antiquation and to overcome shortcomings.

Contrary to the Founding Fathers, Mr. Specter insists the Commerce Clause crowns Congress with virtual omnipotence over any noneconomic activity with a ripple effect on interstate commerce. His interpretation would transform a government of limited powers into a Leviathan, and thus dishonor the Constitution.



In an Aug. 8, letter to Judge Roberts, Mr. Specter decried the Supreme Court’s invalidation of the Violence Against Women Act of 1994 (VAWA) that created federal civil liability for gender-motivated violence already punishable under state law. Writing for the majority in United States v. Morrison (2000), Chief Justice William H. Rehnquist explained that the Commerce Clause does not endow Congress with power to regulate “noneconomic, violent criminal conduct based solely on that conduct’s aggregate effect on interstate commerce.” Indeed, it is inconceivable any member of the Constitutional Convention or state ratifying conventions contemplated the Commerce Clause as a vehicle for attacking gender-motivated assaults. Punishing such wretchedness was entrusted to state governments, and none had shied from its obligation.

Mr. Specter bellyached at the court’s audacity in Morrison in disputing the congressional conclusion the Commerce Clause justified VAWA. He voiced equal mortification at the court holding in United States v. Lopez (1995) that Congress lacks Commerce Clause power to prohibit guns near public schools on the theory classroom violence impairs educational achievement, which in turn diminishes worker productivity. As with VAWA, the 50 states had already made criminal the conduct Congress thought necessary to regulate as a national priority.

Mr. Specter sophomorically fumed at the high court’s assumption of “superiority” compared with the elected members of Congress to interpret the Constitution, and maligned its Commerce Clause decisions as “judicial activism.” But in contrast to the justices, senators and representatives are characteristically unschooled in the Constitution, its history, and its elaboration in the Federalist Papers.

The Founding Fathers feared most congressional usurpations. An independent Supreme Court was erected to check legislative overreaching. The powers of Congress were delimited in Article I, section 8. Independent justices with life tenure were intended to enforce those limits because Congress could not be trusted to police itself, akin to trusting a fox to guard the chicken house. Mr. Specter’s bemoaning the court’s confining of Congress to the metes and bounds of the Commerce Clause intended by the Framers is an attack on judicial review and separation of powers. Under the chairman’s way of thinking, Congress should be permitted to regulate every nook and cranny of life on its say-so alone.

Take divorce, diet and daily exercise. Chains of causation can be concocted to link all three to interstate commerce. Divorce can be said to occasion psychological or emotional traumas that depress the hours and productivity of workers who provide goods or services tied directly or indirectly to interstate commerce. Diet and exercise similarly can be said to influence worker productivity and health-care expenditures for drugs sold in interstate commerce. Accordingly, Mr. Specter would sustain congressional Commerce Clause power to prohibit divorce, to prescribe dietary choices and require 30-60 minutes of rigorous aerobic training daily to regulate the volume and efficiency of national product and labor markets.

The chairman and his liberal flock wrongly equate judicial activism or usurpations with any decision that invalidates a federal statute. The Supreme Court honors the Constitution and separation of powers by interpretations faithful to its original meaning and purpose irrespective of whether a statute is upheld or nullified. While Congress and commentators may criticize the court’s reasoning, Mr. Specter’s idea that congressional findings on its Commerce Clause powers should be conclusive on the judiciary would have alarmed the Founding Fathers and engendered the defeat of the Constitution itself.

Beware of the chairman’s confirmation questions insinuating the opposite.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and The Lichfield Group. He has prepared an “Advice & Consent Handbook” on Supreme Court appointments and the judicial filibuster.

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