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George Will wants a time machine so that we can return to those idllyic days of 1937, now "Gone With The Wind":

The federal government's powers supposedly are limited because they are enumerated. . . . For seven decades, however, Congress has treated the commerce clause ("Congress shall have power . . . to regulate commerce . . . among the several states") as a license to do what it wants to do. But in 1995 the Supreme Court ruled 5 to 4 that the Gun-Free School Zones Act of 1990 was unconstitutional because what the act criminalized -- possession of a firearm in or near a school -- was purely intrastate in nature and its effect, if any, on interstate commerce was negligible. The principal dissent, by Justice Stephen Breyer, argued that a gun might produce violence that would affect the economy by, among other things, injuring the learning environment, resulting in a less productive citizenry. Do you, Sen. Schumer, support that reasoning? If so, does not Congress have the power to promote a healthy and productive citizenry by requiring flossing and regulating homework? Does it matter to you that the original intent of the commerce clause was to ensure the free movement of goods and services among the states?

My question to you Mr. Will is -- are you an idiot? Do you propose this as a serious question? Let us consider the discussion of the Commerce power in the 2005 case Gonzales v. Raich:

In assessing the validity of congressional regulation, none of our Commerce Clause cases can be viewed in isolation. As charted in considerable detail in United States v. Lopez, our understanding of the reach of the Commerce Clause, as well as Congress' assertion of authority thereunder, has evolved over time. The Commerce Clause emerged as the Framers' response to the central problem giving rise to the Constitution itself: the absence of any federal commerce power under the Articles of Confederation. . . . [I]n response to rapid industrial development and an increasingly interdependent national economy, Congress "ushered in a new era of federal regulation under the commerce power," beginning with the enactment of the Interstate Commerce Act in 1887, 24 Stat. 379, and the Sherman Antitrust Act in 1890, 26 Stat. 209, as amended, 15 U. S. C. §2 et seq.27

Cases decided during that "new era," which now spans more than a century, have identified three general categories of regulation in which Congress is authorized to engage under its commerce power. First, Congress can regulate the channels of interstate commerce. Perez v. United States, 402 U. S. 146, 150 (1971). Second, Congress has authority to regulate and protect the instrumentalities of interstate commerce, and persons or things in interstate commerce. Ibid. Third, Congress has the power to regulate activities that substantially affect interstate commerce.

And so it was, in theory, affirmed in U.S. v. Lopez. But the real question Mr. Will is, do you believe the Commerce power supports, minimum wage, environmental, drug enforcement, hurricane relief, educational funding programs, Social Security, etc. as proper exercise of the Commerce power? As Justice Souter wrote in dissent in Lopez, what you propose is a turning back of the clock to 1937:

In judicial review under the Commerce Clause, it reflects our respect for the institutional competence of the Congress on a subject expressly assigned to it by the Constitution and our appreciation of the legitimacy that comes from Congress's political accountability in dealing with matters open to a wide range of possible choices. [cites omitted]
It was not ever thus, however, as even a brief overview of Commerce Clause history during the past century reminds us. The modern respect for the competence and primacy of Congress in matters affecting commerce developed only after one of this Court's most chastening experiences, when it perforce repudiated an earlier and untenably expansive conception of judicial review in derogation of congressional commerce power. A look at history's sequence will serve to show how today's decision tugs the Court off course, leading it to suggest opportunities for further developments that would be at odds with the rule of restraint to which the Court still wisely states adherence.

Please read more of Justice Souter's excellent dissent in Lopez in extended text. It demolishes the nonsense that is the Constitution in Exile movement, of which George Will appears to be a card carrying member.

A great excerpt from Souter's dissent in Lopez:

Notwithstanding the Court's recognition of a broad commerce power in Gibbons v. Ogden, 9 Wheat. 1, 196-197 (1824) (Marshall, C. J.), Congress saw few occasions to exercise that power prior to Reconstruction, see generally 2 C. Warren, The Supreme Court in United States History 729-739 (rev. ed. 1935), and it was really the passage of the Interstate Commerce Act of 1887 that opened a new age of congressional reliance on the Commerce Clause for authority to exercise [ UNITED STATES v. LOPEZ, _ U.S. _ (1995) , 3]   general police powers at the national level, see id., at 729-730. Although the Court upheld a fair amount of the ensuing legislation as being within the commerce power, see, e.g., Stafford v. Wallace, 258 U.S. 495 (1922) (upholding an Act regulating trade practices in the meat packing industry); The Shreveport Rate Cases, 234 U.S. 342 (1914) (upholding ICC order to equalize inter- and intrastate rail rates); see generally Warren, supra, at 729-739, the period from the turn of the century to 1937 is better noted for a series of cases applying highly formalistic notions of "commerce" to invalidate federal social and economic legislation, see, e.g., Carter v. Carter Coal Co., 298 U.S. 238, 303-304 (1936) (striking Act prohibiting unfair labor practices in coal industry as regulation of "mining" and "production," not "commerce"); A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 545-548 (1935) (striking congressional regulation of activities affecting interstate commerce only "indirectly"); Hammer v. Dagenhart, 247 U.S. 251 (1918) (striking Act prohibiting shipment in interstate commerce of goods manufactured at factories using child labor because the Act regulated "manufacturing," not "commerce"); Adair v. United States, 208 U.S. 161 (1908) (striking protection of labor union membership as outside "commerce").

These restrictive views of commerce subject to congressional power complemented the Court's activism in limiting the enforceable scope of state economic regulation. It is most familiar history that during this same period the Court routinely invalidated state social and economic legislation under an expansive conception of Fourteenth Amendment substantive due process. See, e.g., Louis K. Liggett Co. v. Baldridge, 278 U.S. 105 (1928) (striking state law requiring pharmacy owners to be licensed as pharmacists); Coppage v. Kansas, 236 U.S. 1 (1915) (striking state law prohibiting employers from requiring their employees to agree not to join labor [ UNITED STATES v. LOPEZ, _ U.S. _ (1995) , 4]   organizations); Lochner v. New York, 198 U.S. 45 (1905) (striking state law establishing maximum working hours for bakers). See generally L. Tribe, American Constitutional Law 568-574 (2d ed. 1988). The fulcrums of judicial review in these cases were the notions of liberty and property characteristic of laissez-faire economics, whereas the Commerce Clause cases turned on what was ostensibly a structural limit of federal power, but under each conception of judicial review the Court's character for the first third of the century showed itself in exacting judicial scrutiny of a legislature's choice of economic ends and of the legislative means selected to reach them.

It was not merely coincidental, then, that sea changes in the Court's conceptions of its authority under the Due Process and Commerce Clauses occurred virtually together, in 1937, with West Coast Hotel Co. v. Parrish, 300 U.S. 379 and NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 . See Stern, The Commerce Clause and the National Economy, 1933-1946, 59 Harv. L. Rev. 645, 674-682 (1946). In West Coast Hotel, the Court's rejection of a due process challenge to a state law fixing minimum wages for women and children marked the abandonment of its expansive protection of contractual freedom. Two weeks later, Jones & Laughlin affirmed congressional commerce power to authorize NLRB injunctions against unfair labor practices. The Court's finding that the regulated activity had a direct enough effect on commerce has since been seen as beginning the abandonment, for practical purposes, of the formalistic distinction between direct and indirect effects.

In the years following these decisions, deference to legislative policy judgments on commercial regulation became the powerful theme under both the Due Process and Commerce Clauses, see United States v. Carolene Products Co., 304 U.S., at 147 -148, 152; United States v. Darby, 312 U.S. 100, 119 -121 (1941); United States [ UNITED STATES v. LOPEZ, _ U.S. _ (1995) , 5]   v. Wrightwood Dairy Co., 315 U.S. 110, 118 -119 (1942), and in due course that deference became articulate in the standard of rationality review. In due process litigation, the Court's statement of a rational basis test came quickly. See United States v. Carolene Products Co., supra, at 152; see also Williamson v. Lee Optical Co., 348 U.S., at 489 -490. The parallel formulation of the Commerce Clause test came later, only because complete elimination of the direct/indirect effects dichotomy and acceptance of the cumulative effects doctrine, Wickard v. Filburn, 317 U.S. 111, 125 , 127-129 (1942); United States v. Wrightwood Dairy Co., supra, at 124-126, so far settled the pressing issues of congressional power over commerce as to leave the Court for years without any need to phrase a test explicitly deferring to rational legislative judgments. The moment came, however, with the challenge to congressional Commerce Clause authority to prohibit racial discrimination in places of public accommodation, when the Court simply made explicit what the earlier cases had implied: "where we find that the legislators, in light of the facts and testimony before them, have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end." Katzenbach v. McClung, 379 U.S. 294, 303 -304 (1964), discussing United States v. Darby, supra; see Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258 -259 (1964). Thus, under commerce, as under due process, adoption of rational basis review expressed the recognition that the Court had no sustainable basis for subjecting economic regulation as such to judicial policy judgments, and for the past half-century the Court has no more turned back in the direction of formalistic Commerce Clause review (as in deciding whether regulation of commerce was sufficiently direct) than it has inclined toward reasserting the substantive authority of Lochner due process (as in the inflated protection of [ UNITED STATES v. LOPEZ, _ U.S. _ (1995) , 6]   contractual autonomy). See, e.g., Maryland v. Wirtz, 392 U.S., at 190 , 198; Perez v. United States, 402 U.S. 146, 151 -157 (1971); Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S., at 276 , 277.

There is today, however, a backward glance at both the old pitfalls, as the Court treats deference under the rationality rule as subject to gradation according to the commercial or noncommercial nature of the immediate subject of the challenged regulation. See ante, at 10-13. The distinction between what is patently commercial and what is not looks much like the old distinction between what directly affects commerce and what touches it only indirectly. And the act of calibrating the level of deference by drawing a line between what is patently commercial and what is less purely so will probably resemble the process of deciding how much interference with contractual freedom was fatal. Thus, it seems fair to ask whether the step taken by the Court today does anything but portend a return to the untenable jurisprudence from which the Court extricated itself almost 60 years ago. The answer is not reassuring. To be sure, the occasion for today's decision reflects the century's end, not its beginning. But if it seems anomalous that the Congress of the United States has taken to regulating school yards, the act in question is still probably no more remarkable than state regulation of bake shops 90 years ago. In any event, there is no reason to hope that the Court's qualification of rational basis review will be any more successful than the efforts at substantive economic review made by our predecessors as the century began. Taking the Court's opinion on its own terms, JUSTICE BREYER has explained both the hopeless porosity of "commercial" character as a ground of Commerce Clause distinction in America's highly connected economy, and the inconsistency of this [ UNITED STATES v. LOPEZ, _ U.S. _ (1995) , 7]   categorization with our rational basis precedents from the last 50 years.

And the hypocrisy of the "conservatives" is patent in Raisch. How the members of the majority in Lopez are also in the majority in Raisch can be only explained one way - pure unrelenting intellectual dishonesty. There are 2 - but one stands out -- why Scalia the turd of course. From his concurrence in Raisch:

Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained." Lopez, supra, at 560; Morrison, supra, at 610 (same). This principle is not without limitation. In Lopez and Morrison, the Court--conscious of the potential of the "substantially affects" test to " 'obliterate the distinction between what is national and what is local,' " Lopez, supra, at 566-567 (quoting A. L. A. Schechter Poultry Corp. v. United States, 295 U. S. 495, 554 (1935)); see also Morrison, supra, at 615-616--rejected the argument that Congress may regulate noneconomic activity based solely on the effect that it may have on interstate commerce through a remote chain of inferences. Lopez, supra, at 564-566; Morrison, supra, at 617-618. "[I]f we were to accept [such] arguments," the Court reasoned in Lopez, "we are hard pressed to posit any activity by an individual that Congress is without power to regulate." Lopez, supra, at 564; see also Morrison, supra, at 615-616. Thus, although Congress's authority to regulate intrastate activity that substantially affects interstate commerce is broad, it does not permit the Court to "pile inference upon inference," Lopez, supra, at 567, in order to establish that noneconomic activity has a substantial effect on interstate commerce.

As we implicitly acknowledged in Lopez, however, Congress's authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws directed against economic activities that have a substantial effect on interstate commerce. Though the conduct in Lopez was not economic, the Court nevertheless recognized that it could be regulated as "an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated."

Right Antonin, that's why you struck down the law in Lopez, and upheld it here. Had nothing to do with one law regulating guns and the other regulating pot. Sheesh.

And even he knows its bullshit. Read the continued blather:

Although this power "to make ... regulation effective" commonly overlaps with the authority to regulate economic activities that substantially affect interstate commerce,2 and may in some cases have been confused with that authority, the two are distinct. The regulation of an intrastate activity may be essential to a comprehensive regulation of interstate commerce even though the intrastate activity does not itself "substantially affect" interstate commerce. Moreover, as the passage from Lopez quoted above suggests, Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce. See Lopez, supra, at 561. The relevant question is simply whether the means chosen are "reasonably adapted" to the attainment of a legitimate end under the commerce power. See Darby, supra, at 121.

I defy any defender of Scalia to make heads or tail of that passage.

Originally posted to Daily Kos on Sun Sep 04, 2005 at 05:32 AM PDT.

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Comment Preferences

  •  I have to ask (none)
    I have to ask, is this pertinent right now?
    •  I have to ask (4.00)
      Are you kidding me?

      The SCOTUS is Extraordinary.

      by Armando on Sun Sep 04, 2005 at 05:38:29 AM PDT

      [ Parent ]

      •  Well (none)
        I guess you have to be lawyer, to feel it is. you certainly have to be one to read this.
        •  No (4.00)
          You need to be an American citizen.

          Look, no offense, but the Roberts hearings start in 2 days.

          The Supreme Court seems to have little interest for you.

          However its influence over your life is profound.

          The SCOTUS is Extraordinary.

          by Armando on Sun Sep 04, 2005 at 05:43:11 AM PDT

          [ Parent ]

          •  hey, (none)
            i aint trying to offend, i just found this hard to read. and i dont think that we will be spending much time on Roberts. Even bush is spending the entire week in the south. Roberts is going to have to wait. 1,000,000 homeless and 10,000+ dead.

            Everything Changed

            •  Armando's right. We need to become... (none)
              blithly conversant with all aspects of the upcoming SCOTUS debates.  A little homework is good for the soul.

              As for George Will, he's only a conduit - almost like a medium trying to contact Houdini.  And despite his facility with our language (for which I have always had tremendous respect), he's actually not a terribly deep thinker.  In fact, he's quite easy to understand, once you know where he's coming from.  For Will, it's baseball.  That's what he really loves - and all his other thinking is in terms of that love.

              Sometimes I think Will has justified his entire political belief system, in an attempt to to become one with the cosmic all of baseball.  So you see, when he brings up 1937, he's really only expressing his appreciation for the perfection of a NY Yankee/NY Giant World Series.

              He's right.  It was a perfect moment.  But he really needs to pull the resin bag out of his head to give his brain a little room to think.  His politics are knee-jerk right-wing jerk, and he could do so much better.

              JF

          •  Pretty difficult to parse (none)
            I've read through this three times now, trying to find out where the outrage is and I can't cut through the legalese of these passages to comprehend their actual meaning.  Stupid lawyers.  When are they going to start writing things in english so interpretation is unneccesary?  

            Anyway, I have a university degree in Political Studies, and spend a lot of my spare time reading actual books, and consider myself fairly intelligent - but I don't get this.  

            •  Hmmm (none)
              Read up on the New Deal and the Court Packing conroversy. That should shed some light.

              The SCOTUS is Extraordinary.

              by Armando on Sun Sep 04, 2005 at 05:58:41 AM PDT

              [ Parent ]

              •  I should let you know.. (none)
                that I am Canadian, and my American political history is pretty spotty (especially for topics that seem as boring as this).  However, I just bought a huge book on the Constitution which I'm enjoying, and American history seems to be a little more interesting than Canadian, so I guess I have more reading to do.  
              •  Good call Armando (none)
                N/T
              •  I'm sorry, but, (none)
                this is pretty incoherent.  And, I'm a law school grad who has written three law review articles on the commerce clause.  Honestly, it looks to me like you just picked out some quotes you like from the Lopez dissent, some quotes you didn't like from Scalia's Raich concurrence, and framed it with the Will exerpt.  After reading over and over, I can't tell what exactly your point is.

                If you mean to say (and I can't tell with certainy whether or not you intend to say this but it surely seems that you do) that Lopez and those who support it would somehow send us back to pre-1937 law where the federal government can't enact a minimum wage, you certainly don't understand Lopez.

                Lopez held that the federal government can't prohibit gun possession in a school zone.  The reasoning in Lopez would, in no way, have endangered minimum wage laws, hurricane relief (which, incidentally is a "spending power" issue, despite the fact that you list it in your post), or social security (also spending power), etc.  About the only laws Lopez jeopardized were a small handful of federal drug, gun, etc. possession statutes, and maybe the application of some endangered species or environmental regs (in other words, not the whole statutes, just application of those statutes to, for example, a land owner who shoots an endangered animanl that has come onto his property and does not seek to sell the animal.)  And, after Raich, all of those statutes are safe and sound.  Two Justices from the Raich majority would need to step down and be replaced for there to be enough votes for even those very minor limits on federal power.  Yet, you seem to act (judging by the urgency in the tone of your post) as if we are one Justice away from the death of social security and the minimum wage.

                Now, you may think the federal government's powers are unlimited, and make no mistake, that is exactly the position of the Lopez dissenters, and that's fine if you do.  Others, including many many progrssives (many people on Raich's side were progressives, after all), would disagree and say Lopez was rightly decided.  But, to distort Lopez and act as if those who support it also support going back to Lochner (a non-commerce clause case) or pre-1937 commerce clause jurisprudence, does a disservice to (a) your argument and (b) non-lawyer readers who trust your reporting on these issues.  More importantly, implying that we should be concerned that the Supreme Court will hold the minimum wage unconstitutional takes the focus away from issues that actually will be impacted by Bush's SC appointees.  There are plenty of close 5-4 or 6-3 constitutional issues that should be of concern progressives, this simply is not one of them.

                So, before telling people who don't understand your post to go read about the New Deal, why don't you go re-read Lopez, Morrison, Raich, and, for good measure, Wickard.  Then re-read your post and see it still makes sense.

                BTW, you misspell Raich a number of times in your post.  It is Raich, not "Raisch."

    •  Of Course It Is (none)
      The hearings start in two days.  It's not pertinent to discuss this issue?  Shall we wait 'til they're over?  Two days.

      "Salvation for a race, nation or class must come from within. Freedom is never granted; it is won. Justice is never given; it is exacted." A. Phillip Randolph

      by Savage on Sun Sep 04, 2005 at 05:47:13 AM PDT

      [ Parent ]

  •  I understand (none)
    that at the beginning of Katrina, some right-wing legal type was on Fox saying the Federal government had no constitutional power to provide disaster relief.  Has that little gem been preserved anywhere??  Can it be rammed down the throat of the right wing now?  Certainly, we ought to be emphasizing what Armando does -- the Republicans want to end disaster relief, environmental regulation, funding for education, and so on.  And we've got to stop them before they do more damage.
    •  My favorite was (none)
      Rush saying that the delay in federal assisstance was merely a difference between the philosophies of "self-reliance" and "welfare government." I'd respond to that, but some things are just a bit too depraved and obvious.

      "The genius of the Constitution rests... in the adaptability of its great principles to cope with current problems and current needs." -William Brennan

      by progressive pete on Sun Sep 04, 2005 at 05:56:29 AM PDT

      [ Parent ]

      •  I think it was someone on a Kos (none)
        open thread who first called attention to this guy and his ideas (I believe Hannity was nodding along.).  If someone could identify it, might be a nice point of attack.  It would surely seem ridiculous now, even to those who didn't think so then.
  •  In latest Newsweek Will goes back even further (none)
    comparing the current situation in the US and Iraq to Hobbsian 1651...

    In the dystopia that is New Orleans as this is written, martial law is a utopian aspiration. Granted, countless acts, recorded and unrecorded, of selflessness and heroism attest to the human capacity for nobility. But this, too, is true: The swiftness of New Orleans' descent from chaos into barbarism must compound the nation's nagging anxiety that more irrationality is rampant in the world just now than this nation has the power to subdue or even keep at bay.

    Which is to say, Katrina will condition the debate about Iraq. Here is why.

    Politics is a distinctively human activity, but it arises from something not distinctively human--from anxiety about security, and fear of violent death. On the firm foundation of this brute fact, Thomas Hobbes erected a political philosophy that last week reacquired urgent pertinence.

    In 1651, in "Leviathan," Hobbes said that in "the state of nature," meaning in the absence of a civil society sustained by government, mankind's natural sociability, if any, is so tenuous that life is "solitary, poor, nasty, brutish and short." Thoughtful conservatives--meaning those whose conservatism arises from reflections deeper than an aversion to high marginal tax rates--are conservative because they understand how thin and perishable is the crust of civilization, and hence how always near society's surface are the molten passions that must be checked by force when they cannot be tamed by socialization.

  •  I'm guessing Will's article... (none)
    was in the hopper already and was scheduled to run, regardless of "real world" events.

    Armando is in full "Terminator"-mode...no jurisprudence stone left unturned and no Constitution in Exhilist left unscathed.

    George Will deserves this and more. Of that, I am in full agreement.

    Armando, you appear to be burning the candle at all ends (as in you have thrown it into a conflagation); but I have to admire your chutzpah!

    People in Eurasia on the brink of oppression: I hope it's gonna be alright... Pet Shop Boys: Introspective

    by rgilly on Sun Sep 04, 2005 at 05:43:28 AM PDT

  •  The Bursting Point (none)
    David Brooks has had it. Don't know if this is related, but I thought it was very interesting.

    The Bursting Point

    inspire change...don't back down

    by missliberties on Sun Sep 04, 2005 at 05:50:15 AM PDT

    •  Re: Institutional Failure (none)
      all the fancy arguments in the world, the state the feds, the courts doesn't account for the first social rule

      state by Brooks, "The first rule of the social fabric - that in times of crisis you protect the vulnerable - was trampled. Leaving the poor in New Orleans was the moral equivalent of leaving the injured on the battlefield. No wonder confidence in civic institutions is plummeting."

      I highly recommend that every single person read this article. It is a cry for a return to common sense.
      Not this bloviated Washington hot air.

      Katrina is the anti-9/11.

      inspire change...don't back down

      by missliberties on Sun Sep 04, 2005 at 05:54:49 AM PDT

      [ Parent ]

  •  Excellent Post (none)
    Every so often, when contemplating the enormity of the damage the neocons are doing, we should ask, "What is their design, if they have one?"

    They want quite simply to disenfranchise all but the monied class. That brief four-year term of Benjamin Harris in the late 1880's saw the introduction of two Acts which, as much as the founding documents, allowed the spread of freedom and the creation of a middle class. The neocons can't satisfy their desire for revolution without neutering these.

    I am truly flabbergasted that anyone could question the relevance of this post. This post is precisely the framework under which we shoul understand the neocon response to the destruction of New Orleans - and you certainly don't hjave to be a lawyer to read and understand it.

    The Democrats need to address the "Commerce clause" issue very soon.

    Canada - where a pack of smokes is ten bucks and a heart transplant is free.

    by dpc on Sun Sep 04, 2005 at 05:53:06 AM PDT

    •  Free Makrets is their philosophy (none)
      I call it extortion.

      They worship at the stock market, and feed at the trough of greed for the sake of unregulated commerce. Somewhere somehow we cannot worship money only!

      inspire change...don't back down

      by missliberties on Sun Sep 04, 2005 at 05:57:34 AM PDT

      [ Parent ]

    •  One day soon (none)
      they might just overrule Marbury v. Madison, get rid of judicial review altogether, and be done with it. That seems like a perfect target, especially if, like Clarence Thomas, one is dismayed by any legal advancement since the Justinian code.

      "The genius of the Constitution rests... in the adaptability of its great principles to cope with current problems and current needs." -William Brennan

      by progressive pete on Sun Sep 04, 2005 at 06:00:40 AM PDT

      [ Parent ]

  •  Yes, George Will is an idiot (none)
    And he has been for years. His basic modus operandi is to assert intellectual arguements that arise from his desire to return to a day which will re-empower him as a white male--and make him once again a member of a select white male voting, ruling class. Just like it was in 1937. The variety of legal methodoligies/ideologies he wants- which seem self-cancelling to an outside viewer- hang together nicely for him since they are all tied together with the myth of an America which never really existed but which returns his manhood.

    George Will has never really changed much in twenty years since he attacked the movie "E. T." as being "Anti-Adult." [Duh]  George knew that the film was "Anti-Adult" because he was a parent and the film was designed to reduce his authority with his children.

    Honest to God, that was his reasoning. Over the years his underlying subconscious basis for many things has been this same self-view: laws and culture are to be measured against his view of himself as the empowered one (or lack thereof).

    George Will is a sad pathetic little man worried about his manhood and covering it with "tough guy" stuff.

    Sometimes I wonder whether the world is being run by smart people who are putting us on or by imbeciles who really mean it. - Mark Twain

    by Rolfyboy6 on Sun Sep 04, 2005 at 06:13:24 AM PDT

    •  Winger Contradictions (none)
      It never ceases to amaze me how a bunch who thinks humans (and presumably other organisms) are too complex to have evolved with out an intelligent designer with a Plan, think that a complex national and global economy can just be left to run itself, counting on the benevolence of amoral, if not downright predatory, corporations who by nature have no concept of the common good.  Let's watch NOLA be rebuilt with "invisible hands."

      "False language, evil in itself, infects the soul with evil." ----Socrates

      by Mimikatz on Sun Sep 04, 2005 at 07:33:42 AM PDT

      [ Parent ]

    •  He's white nationalism at its most articulate. (none)
      n/t

      Please forgive the mess. I don't spell, I write.

      by HunterKiller on Sun Sep 04, 2005 at 10:17:19 AM PDT

      [ Parent ]

  •  Eeeeeasy! (none)
    Damn, Armando, what do you expect from George Will?  Logic?  Respect for law?  Consistency?  The guy's not a lawyer or even an elected official.  He's a shill.  You may as well get your blood pressure up over something O'Reilly says.

    Scalia on the other hand is a disgrace and a hypocritical one at that.

    What's disconcerting is that when Roberts gets questioned about this stuff, there being enough precedential language supporting broad Congressional Commerce Clause powers, I suspect that he can get off the hook by citing his support for the broad powers.  He'll then beg off criticizing or supporting the actual application of said language on the grounds that it would represent prejudging issues that may come before the Court, i.e. whether the cases should be overruled.

    "I intend to live forever. So far, so good." Steven Wright

    by gsbadj on Sun Sep 04, 2005 at 06:14:50 AM PDT

  •  Yes, George Will is an Idiot. (none)
    Have no doubt, George Will is an idiot ... babbling on like a bitter man does.
  •  "limited government of (none)
    enumerated powers"? except where privacy is concerned, of course.  These folks want to have it all ways all the time --
  •  Scalia's Hypocrisy & Theofascism. (none)

     Anyone who's heard Scalia blather on  -- arrogantly, smugly, with self-important hubris oozing out of every pore of his body --  in one of his public appearances, as I have, will recall how he loves saying, flippantly, "If people don't like something, just pass a law.  That's what legislatures are for, not Courts."

     And, of course, when it comes down to it, Scalia simply loves striking down laws that legislatures have passed, or loves attempting to strike 'em down.  Notably the Gun-Free School Zones Act and the Violence Against Women Act.

     It's been noted before, but not nearly enough, here and elsewhere, that these "Original Intent", "Strict Construction", and "opposition to 'activist judges'" canards are mere fig leaves for the Far Right (we're NOT talking about "Conservatives" here -- we're talking oligarchists, fascists and theocrats) to impose their agenda on the U.S. Citizenry.  Period.  

     This needs to be EXPOSED and "shouted from the rooftops," now more than ever.  Senate Dems and (those few) Republicans of conscience need to FORCEFULLY stand up against this, or our nation as we know it will be crushed under the boot of Scalisitic theo-fascism.

     I'm not exaggerating.

     BenGoshi
    _________________

     

    . . . religion is not a syllogism, but a poem. H.L. Mencken

    by BenGoshi on Sun Sep 04, 2005 at 07:00:42 AM PDT

  •  Improved Shakespeare: (none)
    First, we kill the DC pundits.
  •  Deconstruction of Justice (none)
    Conservatives, or at least the brand of conservatives at the helm now, should more aptly be named "Deconstructionists". Why? In action, if not in definition, the modus operandi is to dismantle, under the guise of principle, philosophy, precedent or law, that which does not serve to enrich said conservatives by dint of power or money. Thus, if a conservative gains power and money through association with the gun lobby, the effort will be to dismantle laws or regulations that, for example, protect the rights of children to be free from risk of harm by bullets within a school zone. Any arcane justification, such as the Commerce Clause, will be invoked. The same applies to environmental regulation, affirmative action, Social Security, progressive taxation, services for the indigent or even disaster relief that is not terrorism-related.
  •  To Make It Simple For You Non-Lawyers (none)
    We are about to get a SCOTUS that will return us to the pre-1937 jurisdprudence.

    This means minimum wage, union protections, Social Security, environmental laws, laws protecting safety in the workplace, just about everything, I mean everything, our country has done since Teddy Roosevelt and Woodrow Wilson to equalize the playing field, may now be declared unconstitutional.

    When workers will try to strike, the strikes will be enjoined and the leaders locked up.  Even laws protecting shareholders from unscrupulous management may be struck down.

    The Interstate commerce clause, will be construed,as it was in U.S. v. Knight in the 1890's, as allowing the federal government to regulate "the stream of commerce" - then primarily railways, now airlines - actually transporting goods, but not the goods themselves.  

    Environmental regulation will be tied to the takings clause of the 5th and 14th amendment.  If private property owners are to be forbidden from dumping crap in their well water, this will be a government "taking" for which the government will have to pay the property owner.

    I'll put myself out on limb (and I've been attacked on this site before for saying this) but Roe v. Wade is small potatoes compared to what Bush & Co- Scalia Thomas Roberts and someone else now - have in store for us.  Even if we elect a Democratic President and Congress in 2006 and 8, they will, to borrow the immortal words of Grover Norquist "be neutered."  The Cosntitution in Exile folks are very open and blatant as to their aims.  

    This is a constitutional crisis - wake up people!!

    •  The court's authroity only extends as far... (none)
      ... as the will of the Executive and the will of the People.

      Please forgive the mess. I don't spell, I write.

      by HunterKiller on Sun Sep 04, 2005 at 10:19:12 AM PDT

      [ Parent ]

    •  of course... (none)
      "This means minimum wage, union protections, Social Security, environmental laws, laws protecting safety in the workplace, just about everything, I mean everything, our country has done since Teddy Roosevelt and Woodrow Wilson to equalize the playing field, may now be declared unconstitutional."

      All that would apply only to federal laws. All those items can still be passed by the state legislatures.

      Instead of the all-knowing federal government, we will have local officials deciding what regulation to apply to their local jurisdictions.

      •  No - You Don't Understand Pre-1937 Jurisprudence (none)
        From then end of reconstruction in 1876 until 1937, the Supreme Court and lower federal courts held that the 14th amendment was enacted to bar the states from enacting any form of social programs.  You might have thought that the 14th amendment was enacted to protect newly freed blacks, but according to these distinguished justices, you are totally wrong.

        The infamous Lochner v New York from 1903 held that New York violated the 14th amendment by limiting the hours of bakery employees to 10 hours a day - the state was taking away the bakery owner's property rights without due process of law.  Later Supreme Courts, right up to 1937, struck down state minimim wage laws as violations of the 14th amendment the same time they were striking down the federal minimum wage as not within the powers of the commerce clause or any other power enumerated to Congress.

        So under the Scalia/Thomas/Roberts doctrine, neither the states nor the feds can regulate business or protect the people.

        Again - I state - we have a constitutional crisis in the making.

        •  No, you don't understand strict constructionism (none)
          <i>So under the Scalia/Thomas/Roberts doctrine, neither the states nor the feds can regulate business or protect the people.</i>

          Only if the current court were to choose to replicate Lochner which i believe is commonly considered one of the worst SCOTUS decisions ever made.

          Even Bork wrote against it in his first book as a blatant example of not following the original intention of the 14th ammendment. ("unjustifiable assumptions of power" he called it and similar decisions)

          So while the court in originalist hands might de-centralize regulation, i don't see them repeating those activist errors.

          •  I think I've Read enough Scalia (none)
            I think I've read enough of Scalia to understand that his - and all his right wing buddies' - "strict contructionism" is simply a slogan to soft pedal his result oriented judicial activism.  

            I caught hell for saying this here a few weeks ago, but I agree with Hugo Black's dissent in Griswald.  And during his confirmation hearing Bork tried to argue the same point had Black made in his dissent, Specter and others hammered him mercilessly, but I totally agreed with Bork's attack on Griswald.

            But IMO Scalia's writing shows him to be a dangerous radical determined to use the Constitution to drive the country into a totally different path.  This is not strict construction; it is radicalism.  And he leads Thomas around like a pony, and I have no confidence at this point that Roberts will be any different.

            So - I have no confidence that a right wiing court won't restore the Lochner/Adkins v. DC Childrens Hosp line of cases that was our law for almost 70 years.  Show me where Scalia rejects this mis-construction of the 14th amendment.  I know would concur that the 14th amendment bars state discrimination on the grounds of race, religion or national origin, but I am afraid he will find that the 14th amendment can serve multiple agendas.

            •  well, if you've read Scalia (none)
              maybe you can show where he lauded Lochner or endorsed the mis-use of the 14th.

              I doubt anyone of any significance has been supporting Lochner for 50 years. So i am dubious that anyone is looking to take us there.

      •  Good (none)
        State your position clearly. Tell Roberts to do the same.

        The SCOTUS is Extraordinary.

        by Armando on Sun Sep 04, 2005 at 11:39:49 AM PDT

        [ Parent ]

    •  This non-lawyer (me) (none)
      diaried this in July. I can't figure out why it took you lawyers so long to figure it out. </snark>
    •  Thanks for the summary (none)
      At the risk of openly displaying my ignorance and thereby provoking the ire of Armando...

      I'd be grateful for book recommendations or links for us laypersons.  Something like all the popular science books I buy which explain the current state of thinking in physics, cognition, etc.

      I've looked around before, and came up with history books or political grandstanding.  It's hard to figure out where to start.  Something that assumed a basic understanding and explained the current struggles would be great.

      Thanks (in advance).

  •  Forget 1937 (none)
    If the Constitution can't apply to issues of interstate standards of living and security, how does it stop another Shays' Rebellion from occurring?  Isn't that why we have the Constitution rather than the Articles?

    Oh that's right, when it comes to violently suppressing organized groups of poor people there ARE no rules...

    You know what the Midwest is? Young and restless... - Kanye West

    by ChicagoDem on Sun Sep 04, 2005 at 07:58:21 AM PDT

  •  Events Have Proven Will Wrong (none)
    The immediate impact of a 'local' event in New Orleans on national gas prices demonstrates that Congress' interpretation of the Commerce Clause is absolutely correct. Events themselves show the silliness of Will's point.
  •  Everything's Going According To Plan (none)
    1. Destroy the legal authority of the Federal Government.

    2. Exploit the resulting chaos to create a new Corporate-Dominionist State, the main features of which will be:

    *All government functions--including military, police and judicial--privatized. Think Dominion Services, Inc..

    *Access to said services made dependent on whether individual in question is an employee and/or shareholder in DSI.

    *Existing elective offices to continue in order to carry out ceremonial functions.

    *Legal system conforms to company policies, as determined by the DSI's Board of Directors.

         I.F. Stone once described the Soviet Union as "the world's biggest company town". If you translate that into American terms, you have a combination of Halliburton, WalMart, Amway, and a Mississippi cotton plantation circa 1850 all rolled into one.
         This is what socalled "movement conservatives" and their financial backers want. This is what they've working for the past several decades. The period 1954-1972 gave them a severe shock by opening up the dreadful prospect of a genuinely free, equal, and humane America. Obviously from their standpoint something had to be done. And they've been doing it.
         The point from our perspective is: what is to be done?  

    Most people never have to face the fact that at the right time and the right place they're capable of anything--Noah Cross.

    by angry blue planet on Sun Sep 04, 2005 at 09:06:13 AM PDT

  •  The Republicans Won't Wait (none)
    The Republicans will not wait to hold the confirmation hearings.  Armando is being a realist by helping us continue to focus on the confirmation hearings for Judge Roberts.

    With the Supreme Court scheduled to begin its new term in October, the pressure will be on the Republicans to push through not one, but two, confirmation hearings (minimum--with possibly a third confirmation hearing if a sitting Justice is elevated to Chief Justice).  We need to be prepared to push back.

  •  Idiot Savant= (none)
    George Will

    America is suffering from Roverian cancer. I am really afraid Bush will prescribe radiation for it...

    by waztec on Sun Sep 04, 2005 at 09:50:52 AM PDT

  •  Except (none)
    A very broad view of the commerce clause also allows governemnt to intrude into your privacy.  While environmental protections and such are good, they may still be available under a somewhat less broad commerce clause.  What I fear is government using the commerce clause to get its mits on my privacy and determining what I should/should not be buying/doing/using in the confines of my home.
  •  Will Cherry Picks Absurd Arguements (none)
    George Will Cherry picks the exceptions to arguements, that in reality prove the rule.

    What would he have us do?  Return to the Gilded Age and surrender national uniformity?

    Right now the only thing this country's economy has going for it is size and extensiveness. That advantage is amplified by uniformity. That notion is, finally, what the Lockner court surrendered too.  

    The fact is George Will, and every other Republican want to go back to 1870 and the guilded age and concentration of wealth and power and wides scale spread of poverty and squalor.  The end product of such policies can be seen at New Orleans Convention center this week.

    There is no point to their position, even if they win the arguement on technical merits.  The point of living is living, not something else, and not only for a few.  All of us.

    My Father, a working stiff, raised on the edge poverty in the depression, a glorified mechanic  though not in a union, benefited from them and the America the post Lockner court help give rise to. We lived an Upper Working class life style. He made a good wage, paid his taxes, fed, clothed, housed, spent one week camping at a lake in northern arkansas every year as a vacation. I made it through College, something he never dreamed of. My story is not unique.  In George Will's world I, and millions like me, would have been raised in squalor and ignorance and been lucky to have what ever substanance I had - cohorts to the New Orleans conventioneers. So even if technically right, his position is just absurd. Something happened in America in the late 1930s that made the world better for all of us - a middle class nation: where being out of the middle class is outside the norm.

    And those concerned about morality, morality is only an issue for middle class people. Poor people can't afford it, and lack hope to pursue it and Rich people can afford ignore it.

    It was the emergence of a critical mass of Middle Class small farmers through out the North that created the abolition movement that demanded the end of slavery.  In the south where the middle class was not that wide spread, but instead a society largely of subsistence farmers along side massively wealthy farmers was their no concern for the immorality of slavery.

    Send George Will to an existence as a share cropper in Mississippi for ten years. Then he can come back a sing to us the praises of constitutional originalism. My guess he would be singing the praises of Legal Realism, ie. pragmatism, which is an older tradition than the constitution.

    On second thought, sending to share cropper and let him rot there.  

  •  close but not quite (none)
    My question to you Mr. Will is -- are you an idiot?

    Not an idiot, at least not by IQ standards, but an ideologue.  That's often even worse than an idiot because one wouldn't expect an idiot to know better whereas the ideologues know the obvious but choose to ignore it.  And this particular ideologue should have had his talking head career nipped in the bud when he stole Jimmy Carter's debate prep notes while working for Reagan.

    The ...Bushies... don't make policies to deal with problems. ...It's all about how can we spin what's happening out there to do what we want to do. Krugman

    by mikepridmore on Sun Sep 04, 2005 at 10:34:57 AM PDT

  •  Deconstruction of Justice (none)
    I confess I posted this comment earlier on Armando's "1937" legal analysis of SCOTUS and George Will, but I worked hard on it and would like to post again here. Blogging is hard work. It really is.

    Conservatives, or at least the brand of conservatives at the helm now, should more aptly be named "Deconstructionists". Why? In action, if not in definition, the modus operandi is to dismantle, under the guise of principle, philosophy, precedent or law, that which does not serve to enrich said conservatives by dint of power or money. Thus, if a conservative gains power and money through association with the gun lobby, the effort will be to dismantle laws or regulations that, for example, protect the rights of children to be free from risk of harm by bullets within a school zone. Any arcane justification, such as the Commerce Clause, will be invoked. The same applies to environmental regulation, affirmative action, Social Security, progressive taxation, services for the indigent or even disaster relief that is not terrorism-related.

  •  Ah, yes Lopez.... (none)
    Of course both the Commerce Clause in its inverse have help end child labor, segregation and a host of ills.

    Of course, when was the last time George Will did a throurough Constitutional analysis of anything.

    And BTW, this is relevenat to among otehr things, the creation and maintenance of such branches of the Executive (which are brought into existence by Congress ability to regulate commerce between the several states) as Homeland Security and others.

    The direct use of force is such a poor solution to any problem, it is generally employed only by small children and large nations. ~David Friedman

    by Ralfast on Sun Sep 04, 2005 at 02:38:17 PM PDT

  •  New Orleans and Rehnquist's seat (none)
    Senators Reid, Durbin, and Leahy,

    My girlfriend and I were deeply angered and disgusted by what we saw happening in New Orleans this week. People with money were able to take care of themselves just fine. Those without money, African-American and White, elderly and infirm, were not. This is a moment in American history when this country must take a deep, hard, and long look at it's deeply racist and classist core. PLEASE, DO NOT ALLOW THE THE HEARINGS ON THE NOMINATION OF JOHN ROBERTS TO PROCEED UNTIL BUSH DECLARES WHO HIS NOMINATION FOR REHNQUIST'S SEAT WILL BE.

    It is now 2005, a time when we are supposed to have evolved in some way as a people and a country. How can this country spend half a trillion dollars on a war in Iraq that was carried out under false, or at the least very dubious pretenses, and not provide it's own citizens even basic transportation out of a domestic disaster zone when they would have gladly used such transporation? Every American pays money in taxes. A minute portion of the federal Treasury must be earmarked in the future for free federal disaster bus transporation that must be available to EVERYONE who wants it, and that is available TO EVERYONE, FREE OF CHARGE, BEFORE flood waters cut off routes of transporation. Also, Americans (of all political persuasions), Congress, and the U.S. government, need to build a new memorial on The Mall in Washington D.C., that commemorates the fallen in New Orleans, Mississippi, and Alabama, who were forsaken by America because of their class status and/or racial background.

    In addition to working tirelessly to continue saving those in peril in New Orleans, the most important thing you can do as Democratic Senator this week is to NOT ALLOW THE THE HEARINGS ON THE NOMINATION OF JOHN ROBERTS TO PROCEED UNTIL BUSH DECLARES WHO HIS NOMINATION FOR REHNQUIST'S SEAT WILL BE. At least make Bush wait until we know who Bush's second nominee will be (to see how far he and his ideologue advisers will attempt to move the court to the right), before letting Roberts make his one case to the Senate and the American public. Americans and the U.S. Senate Democratic Caucus MUST NOT ALLOW a president who was installed into office by a 5 to 4 party line Supreme Court vote, to pack, sight unseen, the U.S. Supreme Court for the next several generations with numerous right wing ideologues at the very moment when the country is mourning the death and maiming of the very disadvantaged people who have been thrown away and abandoned by radical right-wing, government-is-always-the-problem economic policies. If Bush, Boyden Gray, Ed Meese, and other right-wing thinkers succeed in packing the Supreme Court this year with Constitution-in-Exile adherents at the very moment that no holds barred classist and racist extreme-capitalism has been shown to be an ideology that works to forsake the least among us, then something about America and what is good in humanity will indeed have been forsaken forever.

  •  Evolved (none)
    Evolution does in a variety of directions.  Thus mammals evolved from creatures that came out of the sea (skipping a few details), but whales evolved from their fellow mammals by returning to the sea, so that whales and fish have superficially similar fins and body forms.

    Even so, the evolution of the Commerce Clause or the equally explicit Imminent Danger clause on state powers is a matter of history, with no particular guarantee that experience that drove matters in one direction at one time will not drive it in another direction at a different time.

    For example, if the details of the electoral college were to ensure that Bush were the first of a long series of decreasingly competent Republican Presidents, it might very well be that if there were also a Democratic Congressional majority that interpretations of Presidential powers would become increasingly narrow.

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