September 15, 2005

"This is a time for justice tempered with mercy and understanding. There is no evidence of either in Judge Roberts’s career."

That's a line from Howard Dean's op-ed against Roberts, to be published in various papers tomorrow. The theme of the op-ed chimes with much of the questioning from the Democratic Senators. ("I'm trying to see your feelings as a man.") They seem to hope to plant in our minds a picture of the horrible Roberts the Robot.

We keep trying to talk about feelings and all he wants to talk about is — gasp! — law! How can we trust someone like that to be a judge?


The link to the op-ed came in an email that encouraged me to write an anti-Roberts letter using this link.

Here's how the encouragement goes:
John Roberts may have a sharp legal mind, but his record shows that he lacks a sense of justice.

The skills John Roberts displays are like those of White House Deputy Chief of Staff Karl Rove or House Republican Leader Tom DeLay. Both of those men have sharp political minds -- they are among the smartest in Washington. But they use those skills to push a narrow ideology and win at any cost. Roberts has spent a career using the law to protect corporate interests and roll back the rights that protect us all.

Roberts, Rove, DeLay and the rest of the extremist Republican leadership all have the same problem. They abuse their power by pursuing ideological crusades -- and they ignore the real problems we face as a country and as a community.

Thousands of letters appearing in papers across the country will reach every American with our message -- that the time for narrow ideology and protecting the rights of only a few is over.
Roberts — he's like Rove! Be very afraid!

60 comments:

Jack Roy said...

We keep trying to talk about feelings and all he wants to talk about is — gasp! — law! How can we trust someone like that to be a judge?

The nominee deliberately has chosen not to talk about the law, of course---or not about any question of law that may be of interest to the American people. Er, I mean, that may in the future come before the Court.

Jack Roy said...

I should also note that in your post further down, you call Sen. Feinstein "genuine" when she tries to discern the nominee's human characteristics from "John Roberts the automoton" (or words to that effect). As you wrote then, what lowered your opinion was her questioning at what point crime could impact interstate commerce for purposes of the federal constitution.

Well, I guess it's preferable to ask him about law rather than his personality up until the question is one the good professor doesn't like.

Simon said...

We keep trying to talk about feelings and all he wants to talk about is — gasp! — law! How can we trust someone like that to be a judge?

This was exactly what was going through my head watching Dick Durbin's questions this morning, actually. In fact, I've spent most of these hearings wondering when the penny is going to drop for these Senators - what the law says is THEIR job! These pompous morons are preening for the cameras as if they have absolutely no say in these questions of social fairness, justice and inequality that they are asking Roberts to opine on. It's THEIR job to set the law! What exactly is it that's so difficult for them to grasp about the concept that Judges APPLY the law, not make it? Are they really so jaded that these ostensibly intelligent, educated individuals have bought into their own propaganda? And thus, Durbin asks Roberts about his sympathy for the little guy, and when Roberts explains that when the Constitution says the little guy wins, then the little guy wins in his court, and when the constitution says that the big guy wins, then the big guy wins in his court, and Durbin just sits there shaking his head with a kind of vague sadness, and distaste, as if Roberts has just opined that eating babies is a fun way to spend an evening.

We are supposed to show respect for those who have different views to ours, and I try very, very hard to live by that, even when the views being expressed are antithetical to my own. But these hearings are pushing the limits of absurdity. These people - despite the fact that many of them are lawyers - are either oscar-worthy actors and machiavelli-worthy politicians, or they genuinely seem to have no concept of what a Judge does, and what a legislator does. If this is the best we can do - and a lot of the GOP Senators haven't been much better, see e.g. Hatch, Sessions - if this is really the best we can manage with this system, then the 17th amendment is a failure, TV cameras in the committee room are a failure, and both should be immediately rescinded.

This hearing process has been very frustrating. I don't like the nominee, and I think the process is a complete failure. It is transparently obvious that the Democrats have spent the entire time setting themselves up to look like they have been forced into voting no, and the GOP has spent the entire time utterly failing to solicit the kind of guarantees that you'd think that Republicans would want for a lifetime appointment to the most consequential court in the land.

Scipio said...

Man, that whole hit piece is filled with various key phrases that are intended to indicate that John Roberts hates black people, just like Karl Rove and DeLay.

Freeman Hunt said...

We require civics class for many junior high and high school students. Maybe our Senators should be required to take such a class.

Brendan said...

Feelings. Nothing more than feelings ...

Ann Althouse said...

Jack: My objection to Feinstein's presentation of the Commerce Clause question is her failure to understand law and the way she turned it into an amorphous expression of feeling. As to her expression of wish for more feeling, I said I thought it was sincere. Now I see it's part of a pervasive strategy.

Brian O'Connell said...

I like Dean's line, "Now is not the time for a Chief Justice who is bent on turning back the progress we have made in moving America forward."

Heh. So when would it be the right time to do that?

knoxgirl said...

touchy-feelie-warm-n-fuzzy-ness at its worst

Gerry said...

"Now I see it's part of a pervasive strategy."

They lost you with Kerry. The blinders are off, and you may never love or even like the other side, but you'll likely never go back.

Simon said...

I like Dean's line, "Now is not the time for a Chief Justice who is bent on turning back the progress we have made in moving America forward." Heh. So when would it be the right time to do that?

You know, if you strip the invective out of Dean's remarks, what he actually is saying is, now is not a time for Justices who disagree with the Democratic Party's consensus on how law should operate, to change the inertial direction of the court. But as you say - when WILL be the right time to do that? What does it take for the public to express concern about the direction of the court and effect a course correction? Does the GOP have to win the Presidency? Check. Win a majority in the Senate? Check. Prove that it has a sustained majority? Check, draw, check, draw, check, check! Where's the mate? What will it take to correct the drift of the court? Or, more glibly, but more directly, what will it take to get another Scalia on the court?

Larry said...

The nominee deliberately has chosen not to talk about the law, of course---or not about any question of law that may be of interest to the American people.

Heyy, Jack's back! And displaying his usual problems with basic comprehension. If he'd actually watched any of the hearings, of course, he'd have seen quite a bit of talking about the law, just not prejudging of hypothetical cases. But when he talks about what's of interest to "the American people", we all just have to understand that he really means what's of interest, or not, to Jack Roy.

Coco said...

I absolutely deplore these propaganda mailings. I deplore them most than most folks I think because for whatever reason I get way more of these than most people do (unscientific poll) because for whatever reason, I routinely get stuff from both parties. I think most people are fortuntate enough only to receive his junk from one party and its affilated (or "non-affiliated") accomplices generally. Thus, I can say with unfortunate certainty, that this piece is no less nuanced, fair, accurate or educational than just about any of its ilk, regardless of the ideological source and whether I agree with the ultimate conclusion politically. (The one caveat to this is that I truly hate mailings from Robert Redford and "concerned citizens of the word"...the worst).

BTW, David Brooks, whose writing style I normally dislike, has a very entertaining and balanced piece in the NYT today about the theatre of the hearings. I won't link it since its pay only but its worth a read.

bill said...

I used to get worked up over Dean and his goofy remarks, now I can't stop laughing when he opens his mouth.

Coco said...

Just want to add - is anyone really satisifed with the quality of answers (the quality of the questioning is beyond comment)? I can't imagine that anyone wouldn't want Roberts to provide better answers and more information. I obviously know why he won't answer many of the questions and I'm pretty positive I'd be doing the same if I were in his shoes, but he's also skated around numerous issues that he certainly could answer appropriately. Of course, the questioning isn't really intnded to get real answers and so the dance continues. But the whole procedure is frustrating.

Sigivald said...

I think Dean finally lost any ability to talk to anyone but the True Believers about the makeup of the Court when he tried to blame the Kelo decision on "the President and his right-wing court".

I'm not sure whether to ascribe it to the hubris of thinking nobody will notice how utterly wrong that is, or to sheer incompetence, but he hasn't redeemed himself from either one.

Eddie said...

The odd thing about Dean's statement is this, most Americans are likely to get their news from TV or the internet (including your blog) than they are to get it from traditional, liberal media sources such as old line newspapers.

Hey, if Scalia was confirmed with 98 votes, and Ginsberg was confirmed with 96 votes, I wonder what Roberts will be confirmed with?

The "middle" of the U.S. public just simply doesn't have the manufactured hate for Roberts as a candidate as Howard Deaniac does.

Simon said...

Hey, if Scalia was confirmed with 98 votes, and Ginsberg was confirmed with 96 votes, I wonder what Roberts will be confirmed with?

He'll be confirmed 54-46. Every Democrat and Sen. Chafee will vote against him. That's my prediction. The only question is whether they'll trigger the nuclear option for Roberts, or whether they'll save that for the next nominee.

Eddie said...

Simon, with all due respect, I disagree. I honestly think Kohl, and possibly Feingold, may both vote for him. I can't speak for the other Demmies. On second thought, with Feingold running for election in '08, he may not. Though he did vote to confirm Ashcroft. Wouldn't it be nice if the liberal Democrats were as open minded as the conservative Republicans?

mcg said...

I think you're off too, Simon. There are some moderate Dems who will vote for Roberts. And I think it's safe to guess they will withold an extended filibuster.

Coco said...

I agree with eddie and mcg, I think some of the Gang of 14 will vote for him. My guess is he gets over 60 votes.

ps - the Gang of 14 is a terrible name for these guys. It sounds so ruthless and tough and yet this group...well, not so ruthless and tough, at least in appearance.

Christy said...

Sigh. Did anyone else hear the Diane Rehm Show on NPR a few weeks ago when our radio hostess asked why O'Connor's replacement had to be a lawyer. She thought we should have a psychologist on the court.

Simon said...

On some level, I will be delighted to be proved wrong (actually, I'd be delighted if Roberts was defeated 55-45, but that's another matter), but the whole tenor of the questioning of this nominee by the Democrats has either been intentionally setting them up for a mass vote against him, on the pretext that they wanted to be reasonable but have been compelled by his answers (and lack thereof) to vote against him, or if that was not their intention, that's the corner into which they've backed themselves. The problem with teasing the lions is that once they're hungry, if you don't feed them, you end up being the meal. The dems have spent so much time and effort trying to pain this utterly fraudulent picture of what the court does, and therefore why Roberts shouldn't sit on it, that I just don't see how any of them have room to back down without facing a massive backlash from the very base they've been playing to. This goes to an extent to people like Teddy, but it applies a fortiori to someone like Russ, who has Presidential ambitions, and whose Presidential ambitions have been fuelled primarily by the Kossack crowd.

cbi said...

I took the DNC's advise and sent a letter. They may not like my edits to the suggested text. I wonder if someone is reading these before sending them out...

Pastor_Jeff said...

...the time for narrow ideology and protecting the rights of only a few is over.

Wait - which party does he represent again?

Gerry said...

If the Dems go nuke over Roberts or the next nominee, it will be for one reason only--- to get rid of the filibuster for future Presidents.

They know they cannot stop the Republicans from confirming anyone right now. The only question is if the filibuster remains as an option.

And since the Democrats have only a slim hope of regaining the Senate, and no chance of getting near a filibuster-breaking majority in it, they know they will never, ever get another liberal through to the bench after their obstruction of Bush judges to date, so long as the filibuster remains.

Ergo, they will filibuster. It will be for the next nominee. And it will be not to prevent confirmation, but to enable their own confirmations in the future should Hillary or another Democrat win.

vnjagvet said...

Coco:

I am satisfied with his answers. For the most part, the questions he failed or refused to answer were designed to get him to commit to a view which was acceptable to the questioner, or to get him to reveal a view which was unacceptable on the controversial constitutional issues of today. Those are, by definition, precisely the kind of cases that are either now before the Court or likely to get there soon.

He cannot, during this hearing while under oath, and while his nomination is under consideration, tip off either the Senators or potential litigants to how he might rule were he confirmed. This is the requirement of the ethics of judges to which he is bound as a sitting federal judge.

Thus the Catch 22. Those questions which are most interesting to the public and the Senators are precisely the questions he cannot answer.

Simon said...

I am satisfied with his answers.

I am profoundly dissatisfied with his answers. I went into the nomination process bemused as to why so many people on the left were so confident that he would overturn Roe, that he would slaughter all their sacred cows, and bemoaning the broken promise of another Scalia. So I watched the hearings knowing that I wasn't getting what I wanted.

Which left the hope that he wouldn't be terrible. My litmus test is very simple: substantive due process. Roberts believes in it; he has explicitly and categorically affirmed it, in response to questions from Senators of both parties. For that reason, I must oppose his confirmation.

This fraudulent, duplicitous and fundamentally invalid doctrine is rotten to the core, and the rot is spreading outwards. What potential "liberties" are not protected under substantive due process, and why? Why shouldn't abortion be protected under substantive due process, if anything else is? What, other than the imagination and raw political preferences of the judge in question, is the criterion for deciding which liberties are and are not protected by substantive due process?

Scalia is absolutely right. When you buy into a doctrine that permits Judges to make up rights out of thin air, it will destroy the confirmation process, because each side will want Judges who find the rights that they want in the constitution. This pernicious doctrine is corrupting the court, the law, and by necessity, the nomination process. Judge Roberts has bought into it, and I am not confident he can be redeemed.

vnjagvet said...

Wow, Simon. What form of substantive due process does he recognize? While I was listening, it was mentioned once in passing. Did he expand on that during the testimony other than to say it was a recognized doctring? He has never applied it in any of his opinions, has he?

Do you think he is another Sutor? I sure did not get that impression, although I do not think he is an ideologue from any direction.

That may be minus to you, but it is a plus to me.

I would have no hesitation to argue any case I had to him. Win or lose, I think he'd give me a fair shake.

I cannot say the same thing for many other justices today.

Simon said...

Jim,
At about 11:30 yesterday, responding I believe to Sen. Biden (it may have been Schumer), he specifically noted that there are many scholars and judges who reject substantive due process and that he is NOT one of those people. He has several times mentioned, in reply to various questions, that he believes that the due process clause does not just require due process, that it has a substantive component, and that when those clauses talk about deprivation of "life, liberty or property", they do NOT say what they say prima facie, which that you cannot be executed, imprisoned or fined without the due process of law.

None of this, of course, means that the guy will necessarily disappoint conservatives/republicans and delight liberals. Put another way, a broken watch is still right twice a day. Outcomes aren't the problem with substantive due process; the problem is that it is antithetical to the rule of law and to the job that I would contend that the judiciary has in our system of government. The courts and the law are about process, not outcome, and here's the thing: Roberts isn't necessarily a Souter, because think about what Souter represents. Souter is a liberal Judge, who sometimes uses a fundamentally invalid process to reach results he and the liberal base like. Roberts is undoubtedly a conservative judge, and I have no reason to believe that he won't reach results that he and the conservative base like. But if a "conservative" result reached by substantive due process is as invalid as a "liberal" result reached by substantive due process. Robert Bork once paraphrased Lenin to say "who says Roe must say Lochner, and must say Dred Scott", and that is absolutely correct. There is no difference, besides which side is mad at you. Lochner and the propositions that case stands for is as invalid as Roe and the propositions that case stands for.

Or think of it like this: if you buy into substantive due process and you're a liberal, you might say there's a right to have an abortion protected by the due process clause. If you buy into substantive due process and you're a conservative, you might say there's a right to life protected by the due process clause. Who's right? Neither.

The problem is one of process. Your job as a Judge is never to consider outcomes, it is to determine which provisions of the constitution are at law in the case at hand, and apply those provisions, right or wrong. If you think a law is stupid, it should be applied, even if you think it's a stupid law. If a law is pointless, it should be applied, even if you think it's pointless. And if it actually conflicts with a provision of the constitution, the law - in whole or part, as narrowly as circumstances allow - should be declared unconstitional and thus void. But substantive due process turns that process on its head. Because there are no specified liberties in the due process clause, you actually have to go looking for them. And with due respect, you don't go fishing to find out if there are any fish in a river. Judges buy into substantive due process to find a right because they WANT that right to be there.

Pastor_Jeff said...

Simon,

Well put. It's been an education reading here about Roberts and various aspects of law. I didn't know what stare decisis was until this week.

Thanks for the clarification.

vnjagvet said...

Simon:

The only time I have run into substantive due process as a doctrine is in the jurisprudence surrounding regulatory takings. As I dimly recall, the law was hopelessly confused and muddy in that area, with conflicts among Circuits and little help from Supreme Court cases.

It has been 10 years since I have looked at that area of the law (after my cert petition was denied in the case I was handling).

I can understand your concern if amorphous concepts become embraced by the words "life" "liberty" or "property". But I thought that any limitations in the due process clause were, by definition, limitations on governmental actions.

I am not so sure that I think widening the concepts of parts of my life, or the life of others, into which government may not intrude without "due process of law" is necessarily a bad thing.

Where am I going wrong here?

Simon said...

Jim,
Approach it from this point of view: if the due process clause guarantees liberty generally, can you suggest any activity which is not protected by such a guarantee? What criterion can be offered to say which liberties are and are not protected? And if such an expansive clause existed in the original bill of rights, why the need for any other provision in the bill of rights? You don't need a free excercise clause, because you can argue that it's liberty. You don't need a second amendment, because you can argue that it's liberty. You don't need a 13th amendment, because what could possibly be a worse violation of liberty than slavery? And so on. It's standardless. The law cannot be standardless, unpredictable and subject only to what a given judges think should be legal. That strikes me as being the diametric opposite of the idea of having a written constitution, of having codified statutes. I grew up in England, where it really is that kind of system (see comments here just this afternoon, actually), and so I see the difference between the systems incredibly vividly.

NewsBlaze said...

Roberts: High Court No Place for Ideologue
Dean believes Roberts is lying, says he doesn't want an ideologue (as he is himself). The senators waffled on and asked stupid questions. I thought they had intelligent advisors who could help to stop them making fools of themselves! Perhaps they were all on vacation. Why don't the senators realise they write the laws?

Jack Roy said...

Jack: My objection to Feinstein's presentation of the Commerce Clause question is her failure to understand law and the way she turned it into an amorphous expression of feeling.

Yeah. Heavens, to ask where crime impacts interstate commerce... truly belies an incomprehension of the Commerce Clause jurisprudence after Lopez. And to mention victims? We're talking about crime here! This is no place to talk about victims!

Look, I don't like sentimentality either, and I practically gagged at the talk of "John Roberts the guy you'd grab a beer with and talk about your kids, vis a vis John Roberts the unhuman, unstoppable brief-writing machine sent back from the future to---wait, what movie are we talking about?" But I fail to see how mentioning the harms sought to be addressed by federal legislation (you know, the victims of school shootings, and the no-guns-near-schools-act-of-2006) is in itself laughable or at all diverting.

ziemer said...

jim,

substantive due process actually has nothing to do with regulatory takings. if someone injects it, they are being intellectually dishonest.

suppose someone owns an acre of proeprty worth $1000.

if the government takes the whole acre, that's a taking; if the government takes half an acre, that's a partial taking and must be compensated.

if the government passes a regulation that makes the property worth $0, that's a regulatory taking, and must be compensated.

but if the government passes a regulation that renders the property wroth only $500, that is not a taking.

some argue that it is no different than taking the half-acre, and should be compensable.

those who do not sometimes play demoagogue and say that anyone arguing for a broader takings clause is trying to revive lochner, and is merely couching a substantive due process argument in the language of the takings clause.

ziemer said...

jack roy,

feinstein's comments are laughable because we all agree that people should not bring guns to schools.

but that has nothing to do with whether wholly intrastate possession of a gun in a school affects interstate commerce.

4 justices believed that it did.

i may not agree, but at least in their dissents, they couched their opinion in commerce clause language.

they certaintly didn't write, "guns in schools bad; therefore, federal law against it must be allowed as a regulation of interstate commerce."

which is what feinstein was shamelessly saying, confident that her voter base has never heard of the commerce clause.

Simon said...

Just to put some meat on my previous point, the problem becomes acute when applied to actual cases.

Suppose Indiana decides that most traffic accidents before 10am happen because drivers are just too tired. If you'd ever driven to work in front of me in the morning, you'd probably think that law was a pretty good idea, because until I'm at my desk and had a pot of coffee, I'm not much awake nor pleasent. It is nothing short of astonishing that it is legal to operate a motor vehicle in the morning, because I honestly think I could drive more safely over the legal limit for alcohol than at 7:30am before serious amounts of coffee. So imagine Indiana passes a law that requires me to be awake to a certain level, and they invent some way of testing it. Can I challenge that law in Federal court because the constitution guarantees me the liberty of driving? And if not, why not? What is the rationale, expressed in more lawyerly terms than "duh?" What is the difference which explains why the right to drive - which permits me to earn a living to support my family - is not protected as a substantive due process "liberty" interest, but the "liberty" of murdering one's young is? You can feel free to point out that abortion is a heck of a more serious issue than driving or not. Notice how that's a substantive question, not a procedural one.

Just because I heard a segment about it on NPR earlier, and with apologies for the crudity to more sensitive readers, let's imagine that the State of New York passes a law barring the performance of oral sex. This is a phenomonally suspect law, that delves right into the intimate details of people's personal lives, that I would personally think are no concern of government's, but let's say that they do so after hearing broad testimony raising very serious public health concerns which they feel that they cannot ignore, and in this scenario, and for reasons best known to the people of New York, the people of New York have granted the legislature such astonishingly invasive power, and so there's no question under the state constitution. Now, this may be a profoundly silly law, and the health concerns the legislature relied upon may or may not turn out to be very dubious. What should happen next is that the self-righteous citizens of New York should turf out the politicians that voted for it and repeal the law! Let's face it, any politician that voted for such a law is likely going to have difficulties getting re-elected. He's lost Bill Clinton's vote for sure. He might have gained Hillary Clinton's vote, but that's another question entirely. So anyway, what you do is you exercise your first amendment rights to the fullest, and you campaign and you repeal the law. But what you don't do is claim that there's a liberty right in the Federal constitution and have the court ajudicate it! Not least of the reasons being, what if the science actually proves to be right? Suddenly that law starts looking like one of those necessary sacrifices of personal liberty because of a greater problem. Because the constitution doesn't move at the speed of science, and neither does the legal process.

Or what about competing liberty interests? Does an arthritic 80 year old woman have a federal constitutional right to use cannabis to alleviate her pain? What about the surf dude in Cali who just wants to use it to alleviate his bordom? Does he have a federal constitutional right to use the same product as the woman, in the same way, for a different purpose? And do I have a federal constitutional right to raise my kids in a drug free place? How do we balance these rights? What you'll notice is that you can't actually debate this point without talking about the substance of it; you have to talk about issues like the relative value to society of keeping drugs off the streets, or the value of who gets to smoke weed and why.

The point that I'm making here is that at different times, different states may feel that it is necessary or expedient to place certain limitations on the freedom of action of its citizens. It does so only within the scope of the powers which that government has been granted by its citizens, in its constitution. None of the very silly examples above has ANYTHING to do with the due process of law which the clause actually guarantees. If a law is properly made - that is, it doesn't abridge the priveleges or immunities of a U.S. citizen, and if it does apply equally to those to whom it applies - the due process clause has nothing whatsoever to say about whether the law is valid, and can only speak to the manner in which it can be applied.

The federal constitution - very wisely - says nothing about issues like abortion, the right to die or any number of things that people would like to be in there because they can't muster the votes to pass a law about it. These issues are left to the states to decide, in the manner that they see as being most appropriate to the "evolving standards of decency" of people living there. Maybe the people of California no longer wish to attatch a moral oppobrium to the use of heroin - they can legalize it. But here in Indiana, maybe we don't think that way, so maybe we can continue to ban it. that's the beauty of the system. Of course, per Raich, the federal govenment may be able to trump california, but that's just me picking a bad example. ;)

All SDP does is to abolish the concept of a federal system, and makes judges the arbiters of whether a law is or is not a good idea. Not only is this profoundly silly, but it is antithetical to our system of government.

Jack Roy said...

Ziemer:

Let me just postulate a minute:

1) Gun crimes at school can impact the educational system;
2) The educational system is sufficiently tied up in the nation's economy to constitute "commerce" under the Const'n;
3) Therefore Congress has the power under the Commerce Clause to enact such legislation as it believes discourages gun crimes; and
4) The degree to which Congress has such power is dependant upon the degree to which (1) is actually true.

You'll have to forgive me for not getting where you draw out your "nothing to do with." And if I don't agree that a senator on Judiciary, questioning a nominee to a Court previously 5-4 on the constitutionality of such a statute, amounts to her professing that "guns are bad, mm-kay?"

To follow your example, 5 justices believed the Congress lacked such power. But at least they were prudent enough to couch their terms suggesting they'd never heard of Wickard v. Fillburn.

Simon said...

We're talking about crime here! This is no place to talk about victims!

But that's just the point! We AREN'T talking about crime, we're talking about whether the U.S. Congress has the power to legislate in a given area. The Congress does not have police power; it does not posess the power to correct everything it sees as wrong with society. It cannot gain that power merely by creating an extremely tenuous argument that in some way shape or form, the activity being regulated relates to interstate commerce. In this day and age, there is practically no activity that a person can undertake which cannot be connected to the participation in interstate commerce - if you're reading this comment, right now, avert your eyes two inches to the right. What do you see? An advertisement! But wait! I live in Indiana, but the web server on which althouse.blogspot.com resides is located in Mountain View, California! Holy cow, I've just participated in interstate commerce, and therefore - since if the "end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional" - then the Federal government could pass a law relating to my sitting on a chair reading information from a computer screen! Ergonomics requirements, perhaps! Monitor incandescency specifications!

It gets worse, of course, if you buy into the negative commerce clause. Which I do, but which both of my originalist bretheren on the Supreme Court have rejected (so much for originalism as deterministic). If you buy into the negative commerce clause, the broader the scope of congress' activity, the narrower the scope of state activity.

If you try hard enough, you can abolish the federal system, and remove any restraints on what Congress may or may not legislate over, because once you depart from the original meaning of "interstate commerce", the sky is the limit. The American system of government, the animating genius of our constitution, is effectively abolished, and the Federal power has become the only power.

ziemer said...

jack roy,

if you read my post, you will see that i already acknowledged your argument as legitimate (the reference to the dissent in lopez).

what is ridiculous is feinstein's position, which as best as i can tell, is simply that because guns in schools are bad, therefore, the gun-free schools law is per se within congress' commerce authority.

i can juggle with knives in my wholly intrastate home, and that would be bad, too, but it doesn't mean its within congress' power to outlaw it.

or do you think that because the knives once travelled in interstate commerce, it should be a federal offense?

ziemer said...

and also, jack roy,

if you read lopez, you'll see that the majority opinion mentions wickard quite frequently, mostly to emphasize that farming is an economic activity, and then to say that possession of a firearm near a school is not.

only thomas' dissent questions whether wickard is correctly decided.

ziemer said...

simon,

i know that thomas does not believe there is such a thing as a dormant commerce clause, but in what case does scalia reject it?

Jack Roy said...

Ziemer:

Okay, it's late, so I'll be curt:

feinstein's position, which as best as i can tell, is simply that because guns in schools are bad

I doubt you've taken her correctly, and I suspect you're eager to indulge your taste for snark to a point where it overwhelms your instincts for fairness. I would suggest you be careful enough to read what she said rather than take on faith the synopsis of your favorite under-powered right-wing blogger du jour.

(And I wasn't talking about the Lopez majority missing the last seventy years; I was talking about you.)

As for you juggling knives, let's be clear and step back to day one of law school: The question isn't whether it ought to be an offense, but rather whether Congress has the power to enact &c. &c. Your hypothetical is a little bit of a stretch, and I really can't remember the contours of Commerce, but I seem to recall Breyer in dissent wondering what would have been gained by a statute that added "if such weapon is proved beyond a reasonable doubt to have travelled in interstate commerce." Which if I'm getting it correctly---and I'm almost assuredly not---would imply that the result would be different if the statute read thus. But... eh. S'eepy. Hard enough to read the curvy letter word-verification thing.

Kirk Parker said...

ziemer,

"feinstein's comments are laughable because we all agree that
people should not bring guns to schools."

Indeed, her comments are laughable, but not for the reason you cite. We certainly don't all agree that "people should not bring guns to school": law enforcement does so, all the time, with very little problem. In addition, the wise legislators of Washington State have seen fit to grant holders of Concealed-Carry permits the right to carry their weapons onto school grounds while dropping off or picking up their children. (To date--and Washington has some of the earliest concealed-carry law in existence--there have been exactly zero problems caused by permit-holders exercising their rights on under this provision.)

It seems to me the laughability comes more from that old standby: state laws are trivial and meaningless, and have no effect, but Federal Laws Really Prevent Bad Things From Happening.

ziemer said...

i know nothing of the state of washington's concealed carry laws, but i agree with you, kirk.

feinstein speaks as though the state law penalty for murder is insufficient to deter someone from bringing a gun on school grounds and killing someone; but a federal law would have saved the lives of those children.

ziemer said...

jack roy, had there been a jurisdictional element involved in the gun-free school law, the result may very well have been different.

thomas would have still voted to hold it unconstitutional, but, as for the rest of the majority, we don't know.

and this post really isn't about whether it should make a difference or not.

i stand with thomas; you may stand with breyer. that's not what we're arguing about (sorry for the knife-juggling example; i didn't think it would be so offensive).

my only point was that feinstein doesn't care about that. she wants to count dead children, and act as though eliminating all restraint on congressional power would have saved them when it wouldn't.

and i'm kind of a dork, so i haven't the faintest idea what a "snark" is, but i'm being very fair. we've had more discussion of commerce power here than could possibly result from feinstein's dead child list (maybe it was a different senator that did that, and that's why we're missing connection here?).

Larry said...

Night, night Jack.

I suspect he's simply lost track of what he's talking about. The question wasn't "whether Congress has the power to enact &c. &c.", it was whether the Committee senators in general, Feinstein in particular, have been displaying a blend of pomposity, self-righteous grandstanding, and simple stupidity that is egregious even by the august standards of the Senate. And the answer to that question is yes, yes they have. I doubt that Jack appreciates that answer, but his efforts to change the subject suggest that he at least understands an old debate dodge when he needs one. That, and a good snark (fairness be damned).

Simon said...

i know that thomas does not believe there is such a thing as a dormant commerce clause, but in what case does scalia reject it?

In Tyler Pipes Industries v. Dept of Revenue, 483 U.S. 232. There isn't a short, pithy soundbite for it, which is unusual for Scalia, but it's there.

Jack Roy said...

Sorry, Larry. The question at hand, in fact, came out of this conversation:

Feinstein: Now, at what point does crime influence commerce?

Althouse: ...there is a complete disconnect between the legal question, the scope of the Commerce Clause, and the rhetorical listing of victims of violence.
* * *
My objection to Feinstein's presentation of the Commerce Clause question is her failure to understand law and the way she turned it into an amorphous expression of feeling.

J.R.: Heavens, to ask where crime impacts interstate commerce... truly belies an incomprehension of the Commerce Clause jurisprudence after Lopez.

Ziemer: feinstein's comments are laughable because we all agree that people should not bring guns to schools.

but that has nothing to do with whether wholly intrastate possession of a gun in a school affects interstate commerce.

J.R.: You'll have to forgive me for not getting where you draw out your "nothing to do with [whether wholly intrastate possession ... affects interstate commerce]."

Simon: But that's just the point! We AREN'T talking about crime, we're talking about whether the U.S. Congress has the power to legislate in a given area....

Ziemer: what is ridiculous is feinstein's position, which as best as i can tell, is simply that because guns in schools are bad, therefore, the gun-free schools law is per se within congress' commerce authority.

J.R.: As for you juggling knives, let's be clear and step back to day one of law school: The question isn't whether it ought to be an offense, but rather whether Congress has the power to enact &c. &c.

Now, Larry, perhaps some of this is news to you, but whether a phenomenon has an effect on interstate commerce is rather important from a constitutional perspective. The reason this is so is that Congress has the power to regulate interstate commerce, including phenomena affecting it, but not matters of purely local concern.

If you can understand that much, you can understand how asking at what point crime affects commerce is precisely about the limits of Congress's power. That is, if you couldn't get it from all the explicit mentions of, you know, the question whether Congress has the power to regulate.

But now, the punchline:

Larry: The question wasn't "whether Congress has the power to enact &c. &c.", it was whether the Committee senators in general, Feinstein in particular, have been displaying a blend of pomposity, self-righteous grandstanding, and simple stupidity that is egregious even by the august standards of the Senate.

Ooh, it looks as though you're just a little late to the party, and no one but you showed up in a costume.

Larry said...

Jack, you're awake again! More or less. Sad to see, though, that even with all the cutting and pasting (nice work on that, by the way), you still seem not quite able to grasp and stick to a simple point. The conversation began with a post dealing with the Democrats' deliberate use of sentiment as a tool with which to attack Roberts, one aspect of a theme dealing with some of the more abysmal displays of mendacious ineptitude in these hearings. Simon, it's true, developed a side issue, but he at least brought something of interest to it -- that is, of a little more interest than an observation like "whether a phenomenon has an effect on interstate commerce is rather important from a constitutional perspective" (though it's certainly good you understand that). Zeimer, on the other hand, has, with impressive patience, been endeavoring to bring you back to the point, perhaps just not realizing the difficulties you have staying on topic. Nevermind. It'll be time for a nap soon.

But hey, that punchline? The party and costume bit? Good one, Jack. Pithy. Ouch, as they say.

Jack Roy said...

Larry, you're still daft!

Christ, this is frustrating. Let me explain it to you in even littler pieces, as you seem to have missed them:

1) Professor Althouse argued that Sen. Feinstein was making legally irrelevant points.
2) Prof. A used as evidence of this her own blithe appraisal that Feinstein in her questioning was only asking about whether gun violence was a bad thing.

3) I (and you say Simon, too, although I missed it) disputed Prof. A's conclusion in (1).
4) In support of this contradiction, I argued that Feinstein wasn't necessarily saying that gun violence is bad, but rather that gun violence could be important enough to impact interstate commerce.

So, if you'll stay with me, to get to (1), you have to believe (2); if you disbelieve (2), however, and instead believe (4), you won't get to (1), you'll get to (3). Clear? Understand? Maybe you should draw a chart.

I really do appreciate your taking the time to lecture me about what the point at hand is. However, I do have to re-emphasize what I've already pointed out: Your insistance that "The question wasn't 'whether Congress has the power to enact &c. &c.'" notwithstanding, there are several of us who have been talking precisely about that question.

To contrast, I doubt you can point to a single other poster here who has been engaging your (ahem) very cerebral topic, whether or not Sen. Feinstein is full of herself.

Of course, if I've missed such a comment, I'd love to be proven wrong.

Larry said...

That little "ahem" isn't going to help you much, Jack -- more than your throat needs clearing. As usual, you misread me -- I've talked about how Roberts in fact has spoken a great deal about the law, in contradiction to your first, but no doubt now long forgotten, point; I've talked about how the senators on the committee in general are "full of themselves", Feinstein being just one example; and I've talked about the Democrats' mendacious use of "feelings", which was the original topic about which these are comments. Others who've commented on these or related themes include pretty much everyone but yourself and I guess your imaginary friends. (I didn't associate Simon with you apart from the fact that he too has taken up a side issue -- the difference, I'll say again, is that he was interesting while you, sorry, were merely snotty and banal.) I think you mistake people trying gently to lead you back to the topic for people who are as easily sidetracked as you.

But that's enough of that. Perhaps you should draw your own diagrams and see if you can at least follow yourself.

Jack Roy said...

Ahem (ahem):

I'm truly, truly sorry you can't handle more than one thought at a time.

I'm truly, truly sorry that you can't understand how:

1) Democrats don't want to talk about the Commerce Clause; they only want to talk about their feelings about the effects of gun violence!

is, in fact, denied by:

2) That doesn't follow; they aren't actually talking about feelings, and the magnitude of those effects is precisely relevant to the Commerce Clause.

And I'm truly, truly sorry you apparently have nothing better to do than continue to miss the point.

But somehow, you're an even sorrier sort than I am. Huh.

ziemer said...

larry,

you are more patient than i am. i'd given up. but thanks for the props.

Larry said...

You have to feel for Jack, don't you? He's "truly, truly sorry" about my failings, and Christ, he's frustrated! He's in such a lather of frustration and pity, in fact, that he just can't seem to think straight. Well, but thinking seems to have been a weak point for him for awhile. In his last, for example, he says "That doesn't follow" in statement 2, even though his statement 1 is just an observation, not an assertion of logical entailment. Then he says that "they [the Democratic senators] aren't actually talking about feelings," when "they" themselves say things like (from the original post, which Jack has long since transcended) "I'm trying to see your feelings as a man". Quite the specimen, isn't he? Luckily, that was the extent of his strained efforts at thought lately -- much more of that sort of thing and he might just pop.

To zeimer I say thanks for the thanks, but if I can bring just the slightest ray of the light of reason into Jack's dark world, then my patience will have been rewarded. (That said, I'll admit I'm getting bored.)

ziemer said...

there's an old saying from cool hand luke, you know:

"there's some men, you just can't help."

Pastor_Jeff said...

ziemer,

Not interested in the argument per se, but it does seem best summed up in Cool Hand Luke:

"What we got here ... is failure to communicate. Some men you just can't reach."

ziemer said...

pastor jeff,

i think you are correct.
thanks for the correction.

as i recall, it continues, "that's the way he wants it; well, he gets it."

great movie.

and as someone who once ate 25 hard-boiled eggs in one sitting,, i can't even imagine how someone could eat 50.

Simon said...

The weekly standard on the same things we've been batting around:

http://weeklystandard.com/Content/Public/Articles/000/000/006/092cavxd.asp