After watching the March of Folly in constitutional law for nearly half a century I confess that I have come to a place of cynicism and despair. I fear that we can analyze a thread of Supreme Court cases on the commerce clause and we are but to be pitied like a neurotic housewife for trying to predict the future from the stars. To grope for another analogy, I fear conservatives on entering the Supreme Court are taking a knife to a gunfight.
My cynicism comes from a commonsense overview of the language of the Constitution. The founders, fearful of tyrannical government on the one hand (and equally fearful of its radical mob on the other hand) determined to establish a federal government with limited and divided powers and separated in power from powers which would belong to the states. So when the framers, aware of the self-defeating internecine commercial warfare between the former colonies of the government under the Articles of Confederation, wrote down those powers which would go to the federal government, they assigned commerce as they understood it to the federal government to manage.
Clearly, they never understood a farmer to be in interstate commerce and subject to congressional regulation who grew wheat purely for consumption on his own farm. That the Supreme Court could come to such a conclusion so obviously at variance with the idea of enumerated powers sets the whole Constitution at naught by the simple contrivance of inflating the notion of "commerce" among the states beyond all historical understanding and rational definition. Tack onto that the Necessary and Proper clause and you have intellectually come full circle to the place we are today where there is now virtually no limit to federal power.
One might well point to Justice Ginsburg, the archetypal statist whose brooding presence renders the idea of an impartial Supreme Court a mockery, and her opinion in which she seems to rein in the power of the federal government to control commerce. But consider that what she might well have done was to convert a probable 7 to 2 or 8 to 2 decision rendered on constitutional grounds undermining her leftist strategy to advance federal power through the commerce clause into a harmless 9 to 0 holding on statutory interpretation without constitutional significance. If that was what she accomplished, she acted in the best traditions of Abe Fortis who was sent to the court by Lyndon Johnson as an outrider to protect that flank.
My point is that the likes of Justice Ginsburg takes a gun to a gunfight. She is not open to honest intellectual debate about the true meaning of the commerce clause. She works backwards from a preconceived result and uses her immense intellectual capacity to rationalize that holding. There are at least five Justices who go into that courtroom willing to be persuaded to either side. But they are human, they might be persuaded against our vision and it only takes one of them be so persuaded. Justice Kennedy, as history shows, is only too susceptible to that sort of persuasion. My point is that litigating in the Supreme Court is a little bit like waging a war against terrorists, we must get it right 100% of the time. We go in with an honest and open intellectual mindset which the other side sees only as naïve.
Thank you for inviting me to participate on a thread initiated with such a thoughtful essay.
After watching the March of Folly in constitutional law for nearly half a century I confess that I have come to a place of cynicism and despair. I fear that we can analyze a thread of Supreme Court cases on the commerce clause and we are but to be pitied like a neurotic housewife for trying to predict the future from the stars. To grope for another analogy, I fear conservatives on entering the Supreme Court are taking a knife to a gunfight.
My cynicism comes from a commonsense overview of the language of the Constitution. The founders, fearful of tyrannical government on the one hand (and equally fearful of its radical mob on the other hand) determined to establish a federal government with limited and divided powers and separated in power from powers which would belong to the states. So when the framers, aware of the self-defeating internecine commercial warfare between the former colonies of the government under the Articles of Confederation, wrote down those powers which would go to the federal government, they assigned commerce as they understood it to the federal government to manage.
Clearly, they never understood a farmer to be in interstate commerce and subject to congressional regulation who grew wheat purely for consumption on his own farm. That the Supreme Court could come to such a conclusion so obviously at variance with the idea of enumerated powers sets the whole Constitution at naught by the simple contrivance of inflating the notion of "commerce" among the states beyond all historical understanding and rational definition. Tack onto that the Necessary and Proper clause and you have intellectually come full circle to the place we are today where there is now virtually no limit to federal power.
One might well point to Justice Ginsburg, the archetypal statist whose brooding presence renders the idea of an impartial Supreme Court a mockery, and her opinion in which she seems to rein in the power of the federal government to control commerce. But consider that what she might well have done was to convert a probable 7 to 2 or 8 to 2 decision rendered on constitutional grounds undermining her leftist strategy to advance federal power through the commerce clause into a harmless 9 to 0 holding on statutory interpretation without constitutional significance. If that was what she accomplished, she acted in the best traditions of Abe Fortis who was sent to the court by Lyndon Johnson as an outrider to protect that flank.
My point is that the likes of Justice Ginsburg takes a gun to a legal debate. She is not open to honest intellectual debate about the true meaning of the commerce clause. She works backwards from a preconceived result and uses her immense intellectual capacity to rationalize that holding. There are at least five Justices who go into that courtroom willing to be persuaded to either side. But they are human, they might be persuaded against our vision and it only takes one of them to be so persuaded. Justice Kennedy, as history shows, is only too susceptible to that sort of persuasion. My point is that litigating in the Supreme Court is a little bit like waging a war against terrorists, we must get it right 100% of the time. We go in with an honest and open intellectual mindset which the other side sees only as naïve.
Of course we must fight the good fight and litigate the very best case we can but I am rapidly coming to the conclusion that the case is not won or lost on the briefs, or the facts, or the law, or even on the Constitution but on the nominating process. This is how we have come to the place where the Constitution means precisely the opposite of what the words say.A rational layperson would well look at this and say, if the federal government can control human behavior on this level why did the framers go to the trouble of enumerating powers and reserving the rest to the states and to the people? That ultimately is the question the Supreme Court should set itself to answer.
