Judges who believe in limited congressional power are fit for the bench

Anthony Sanders

New York Sen. Charles Schumer has not read the U.S. Constitution. I know this because he has said that people are unfit to be federal judges if they seek to “curtail the powers of Congress.” May I refer the senator to the primary author of our Constitution, James Madison, who said the federal government’s powers are to be “few and defined”?

Schumer and his cohorts in the Senate are currently doing whatever they can to block President George W. Bush’s judicial nominations, including the unprecedented use of filibusters. They say some of Bush’s nominees, such as Washington lawyer Miguel Estrada and Texas Justice Priscilla Owen, are “out of the mainstream” of American values. These legal scholars are not fit for the bench because, say our noble senators, they might believe the outrageous notion that Congress does not have the power to regulate every aspect of our lives.

Schumer’s shameless statements ignore the words of Madison and the following 200-plus years of history. During many of those years the court overrode Congress’ will when Congress moved beyond its allotted powers.

Charles Schumer can’t understand this history. The fact that he can’t is frightening. It points toward a view of absolute majoritarianism: If the majority of legislators vote for a law, then that law is per se constitutional.

That is not what the Constitution says. As clear as day, the Constitution limits the power of Congress. In the opening to Article I it states, “All legislative powers herein granted shall be vested in a Congress.” This means, by implication, that Congress does not have the powers that are not granted – which tells us, without reading any further, that not all powers imaginable are granted to Congress. If we read on, Section 8 of Article I enumerates most of the “vested” powers. They are quite specific. It contains narrow allocations such as the power “to establish post offices” or “fix the standard of weights and measures.”

The language from Section 8 that lawmakers like Schumer seize upon is “to regulate commerce with foreign nations, among the several states, and with the Indian tribes.” This seems to be the only sentence in the Constitution with which Schumer has familiarized himself. The phrase, set among other specific grants of authority, has been broadly read over the last 65 years to grant Congress plenary power over our lives. Activities that no speaker of the English language would classify as “commerce” or “among the several states,” such as the width of office hallways or the content of municipal drinking water, are now routinely regulated by Congress. The only limits on the federal government have become the liberties in the Bill of Rights. This turns the original understanding of the Constitution on its head. Instead of having no power except what is specifically granted to it, Congress has the power to regulate everything except what is specifically disallowed.

In the last eight years, the Supreme Court has begun to reverse this understanding ever so slightly. It has, either through striking down a law or through reading it in a limited light, stated that Congress does not have, for example, the power to criminalize the possession of guns near schools or to regulate non-interstate waters. This is hardly a revolutionary, dangerous or “out-of-the-mainstream” concept.

Yet, senators like Schumer think an opponent of unlimited congressional power is unfit for the federal bench. We are often told that the Democratic Party’s opposition to Bush’s judicial nominees relates to abortion rights. This is true to a point, but it contradicts Schumer’s own words. Statements made by his office demonstrate the Democrats are less worried about the legality of abortion and much more about threats to the plenary power of Congress.

It is not surprising that Schumer votes for laws that violate the Constitution. Congress has a penchant for doing so, and we shouldn’t be surprised he is no different than anyone else. What is surprising is that his party will not vote for – or even allow a vote on – nominees that actually read the text of the document authorizing Schumer’s day job.

If those who want unlimited Congressional power choose to believe the Commerce Clause gives them unlimited authority, so be it. But why is someone who believes Congress’ power is limited – something “mainstream” Americans would probably agree with – unfit for the judiciary? Who is the extremist here, the “ideological” nominees or the authoritarian senators who will not yield one inch of their kingly power?

Anthony Sanders’ biweekly column usually appears alternate Thursdays.

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