Monday, November 22, 2004
Lopez, Morrison, and Judicial Activism
It seems that my comments as well as Publius's musings on the constitution have stirred some emotions and the well used phrase "judicial activism" has reared it ugly head again. I'll give you all my thoughts, but I don't promise them in any order, but here it goes.
First, let me start with Lopez and Morrison. As everyone, or almost everyone, is aware these two cases purported to place and outer limit on Congress's power to regulate interstate commerce. Both struck down democratically enacted statutes, in Lopez it was the Gun-Free School Zone's Act, while in Morrison the legislative victim was the Violence Against Women Act. One can debate the merits of these pieces of legislation ad nasuem, the focus of the Court's opinions, however, was whether Congress had the constitutional authority to enact these laws. In both cases the Court held that Congress did not and does not have this type of power. What is troubling to myself and many constitutional scholars, was not the ultimate outcome of the cases, but the reasoning used to get to that outcome. It would be one thing, if as Paul suggests, the statutes clearly violated the commerce clause. However, as much as he would like to resort to "textualism" or "originalism" in this instance, there is precedent, specifically Wickard v. Filburn, to deal with, and for 8 of the 9 Justices this presents a problem that must be dealt with. (Justice Thomas is the outlyer on the issue of stare decisis) Herein lies the problem, in my opinion, with Morrison and Lopez, neither overruled Wickard, in fact both cited it approvingly, and the Court's own distinctions don't appear to withstand close examination.
Best as I can tell the distinctions between Lopez and Wickard, was that in Lopez, there was no "commercial" activity involved in transporting a gun into a school zone. That may well be true as a factual matter, however, there are many federal statutes where Congress has regulated things that do not arguably involve commercial activity. Most, if not all possession crimes at the federal level involve no "commercial activity" unless one argues that possession in and of itself is commercial or economic in nature. Possession of drugs, guns and other contraband are prosecuted in federal courts everyday and no one (save for the respondents in Raich v. Ashcroft) is apparently bothered by this at all. Personally, I'm willing to live with Morrison and Lopez if in fact they means what they say they mean. My fear is that when confronted with alternative situations and more popular statutes like the Controlled Substances Act or the Child pornography Prevention Act, it won't really mean what it says and then the Court will have succeeded in nothing more than further complicating an already rich and complicated history. The Court in my opinion can't have it both ways and neither can "law and order" conservatives, in other words, if possession of gun in a school zone cannot be the basis for federal jurisdiction, then neither can possession of drugs, guns, pornography and other things that Congress has declared citizens can't lawfully possess. (Libertarians will be ecstatic about this proposition, social conservatives or "law and order" types less so)
Last point, judicial activism. I don't really have much to say about this because I think the phrase has lost all meaning. Activism is another way of saying that I, or people who think like I do, don't agree with the decision of a court, or a judge; therefore, the judge is an activist. Every proponent of "origianlism" or "textualism" runs into a problem implementing their theory because it just simply doesn't in all cases comport with the role that Courts play in our system of government. The classic example is Brown v. Board of Education. This decision is nearly impossible to justify on "originialism" or "textualism" grounds, yet everyone from Scalia to Thomas to Bork, believes that it was the "right" or proper decision. How? Bottom line, they stray from their philosophical underpinnings to do what it "right." Does this mean their theories and philosophies have no merit? No, of course not, in fact they are powerful and dominant points of view in today's jurisprudence, however, it does mean that strict adherence is not always possible or desirable. Conservatives are "activists" too, in some cases worse than liberals have ever been. Hence my claim that the phrase has really lost any and all possible meaning in the modern debate over the role of courts and the judicial system.
There I've said my piece, now let the attacks begin.
First, let me start with Lopez and Morrison. As everyone, or almost everyone, is aware these two cases purported to place and outer limit on Congress's power to regulate interstate commerce. Both struck down democratically enacted statutes, in Lopez it was the Gun-Free School Zone's Act, while in Morrison the legislative victim was the Violence Against Women Act. One can debate the merits of these pieces of legislation ad nasuem, the focus of the Court's opinions, however, was whether Congress had the constitutional authority to enact these laws. In both cases the Court held that Congress did not and does not have this type of power. What is troubling to myself and many constitutional scholars, was not the ultimate outcome of the cases, but the reasoning used to get to that outcome. It would be one thing, if as Paul suggests, the statutes clearly violated the commerce clause. However, as much as he would like to resort to "textualism" or "originalism" in this instance, there is precedent, specifically Wickard v. Filburn, to deal with, and for 8 of the 9 Justices this presents a problem that must be dealt with. (Justice Thomas is the outlyer on the issue of stare decisis) Herein lies the problem, in my opinion, with Morrison and Lopez, neither overruled Wickard, in fact both cited it approvingly, and the Court's own distinctions don't appear to withstand close examination.
Best as I can tell the distinctions between Lopez and Wickard, was that in Lopez, there was no "commercial" activity involved in transporting a gun into a school zone. That may well be true as a factual matter, however, there are many federal statutes where Congress has regulated things that do not arguably involve commercial activity. Most, if not all possession crimes at the federal level involve no "commercial activity" unless one argues that possession in and of itself is commercial or economic in nature. Possession of drugs, guns and other contraband are prosecuted in federal courts everyday and no one (save for the respondents in Raich v. Ashcroft) is apparently bothered by this at all. Personally, I'm willing to live with Morrison and Lopez if in fact they means what they say they mean. My fear is that when confronted with alternative situations and more popular statutes like the Controlled Substances Act or the Child pornography Prevention Act, it won't really mean what it says and then the Court will have succeeded in nothing more than further complicating an already rich and complicated history. The Court in my opinion can't have it both ways and neither can "law and order" conservatives, in other words, if possession of gun in a school zone cannot be the basis for federal jurisdiction, then neither can possession of drugs, guns, pornography and other things that Congress has declared citizens can't lawfully possess. (Libertarians will be ecstatic about this proposition, social conservatives or "law and order" types less so)
Last point, judicial activism. I don't really have much to say about this because I think the phrase has lost all meaning. Activism is another way of saying that I, or people who think like I do, don't agree with the decision of a court, or a judge; therefore, the judge is an activist. Every proponent of "origianlism" or "textualism" runs into a problem implementing their theory because it just simply doesn't in all cases comport with the role that Courts play in our system of government. The classic example is Brown v. Board of Education. This decision is nearly impossible to justify on "originialism" or "textualism" grounds, yet everyone from Scalia to Thomas to Bork, believes that it was the "right" or proper decision. How? Bottom line, they stray from their philosophical underpinnings to do what it "right." Does this mean their theories and philosophies have no merit? No, of course not, in fact they are powerful and dominant points of view in today's jurisprudence, however, it does mean that strict adherence is not always possible or desirable. Conservatives are "activists" too, in some cases worse than liberals have ever been. Hence my claim that the phrase has really lost any and all possible meaning in the modern debate over the role of courts and the judicial system.
There I've said my piece, now let the attacks begin.
# posted by mouldfan : 9:31 AM
