Our National Paper of Record carries an interesting piece on Arlen Specter's confrontation with John Roberts on the issue of Congressional versus Supreme Court authority. That is, it's interesting if the reader is thinking, as SWNID's gentle readers always do.
Specter's beef with Roberts is over votes by the Supremes to, in the words of the Times, declare "unconstitutional acts of Congress that had been passed by broad bipartisan majorities." For instance, the Supremes said that Congress couldn't enact legislation enabling women to sue rapists in federal court simply by adding up the number of rapes, multiplying that by some dollar figure arrived at by multiplying lost work time by average wages and adding some dough for medical and psychological help, assuming that the sum, doubtless billions, amounted to significant economic impact, and claiming that their action was a matter of regulating interstate commerce and so justifiable constitutionally as a Congressional action.
But "commerce," say the Supremes, or at least five of them, is the actual selling of things. This stuff isn't your job, Senators and Representatives. It is the states'.
Well, whines the Senior Senator from Pennsylvania, "I take umbrage at what the court has said, and so do my colleagues. . . . And we do our homework, evidenced by what has gone on in this hearing. And we don't like being treated as schoolchildren, requiring, as Justice Scalia says, a taskmaster."
Yes, indeed, Arlen, my boy. You're just as smart as that prep school boy over there with the cute smile and the nice suit. And you're much smarter than that uppity Italian Catholic kid. Don't you let them tell you that your definition of commerce, i.e., anything to which you can attach an economic impact estimate, is invalid. Breathing is commerce if you boys in the Capitol say it is.
At one level, Specter's rant is just another example of what's always happened among our wonderfully divided federal powers. Though we are accustomed to saying that the Supreme Court finally determines the meaning of the Constitution, the fact is that all branches are interpreting it all the time. In our early history, some presidents (e.g., Jefferson, if memory serves) simply refused to execute certain legislation, arguing that it was unconstitutional. More recently, Congress has cut off funding for executive actions it deemed unconstitutional.
But what if the Supremes invalidate a law on constitutional grounds. That's it, right? No higher court of appeal.
Nope. There's a way. But it's been so long since anyone tried it that no one remembers it can be done (recall the ERA?). The constitution can be amended. If Whinin' Arlen wants to pass laws giving women the right to sue rapists in federal court, let him first get passed by both houses of Congress and 39 state legislatures a constitutional amendment that grants Congress the power to enact legislation on anything it pleases and call it commerce.
Then haughty judges like Roberts will allow The Boy Who Did His Homework to have his little laws. After all, as Roberts put it, the Constitution, not the Court, is the taskmaster. So do your homework and pass an amendment, if it really matters to you. Or if you think you can.