"The house we hope to build is not for my generation but for yours. It is your future that matters. And I hope that when you are my age, you will be able to say as I have been able to say: We lived in freedom. We lived lives that were a statement, not an apology."


Wednesday, July 27, 2005

The Raich Test

It comes as no surprise that the defining issue in the upcoming confirmation fight will be abortion. Both the Pro-Choice and Pro-Life movements have been girding up for this moment for years, and the difference between support and opposition to Judge Roberts will depend almost entirely on his stance on abortion, or at least his perceived stance.

But should it be this way? Is abortion really the most important issue the court, and if confirmed, Judge Roberts will deal with? It’s important for sure, and the fact that the issue has been put out of reach of the democratic process for thirty years is largely responsible for all of the public acrimony that exists today.

However to define abortion as the biggest issue facing the court would be a stretch, and there are much larger issues, of which abortion is a part, which should be, and in my view are, of greater concern.

Most pertinent are Judge Robert’s views on the larger issues of federalism, enumerated powers, and the court’s role in limiting the exercise of federal power. What, for instance, is Judge Roberts’ Commerce Clause jurisprudence? Does he believe that it serves as a rubber stamp for expansive and intrusive federal regulation, or does he believe it serves as a strict prohibition on such activity?

To be more specific, would he have ruled in Gonzales v. Raich that the Commerce Clause allows congress to regulate activities neither interstate nor commercial, as long as such activity could conceivably affect interstate commerce, as the court did, or would he have sided with Justices Thomas, O’Connor, and Rehnquist and ruled that such interpretation leaves no limit on federal power?

To ask such questions during Judge Robert’s hearing would be inappropriate, and he will almost certainly refrain from answering. So to ascertain the answers we must refer to the judge’s record on the court of appeals, as slim as it may be. His dissent in Rancho Viejo v. Norton suggests that his Commerce Clause jurisprudence, and his views on federalism, more closely fall in line with the three dissenting justices in Raich. In his opinion Judge Roberts opined that congress had no right to order, through the Fish and Wildlife Services, that a property owner remove a fence on his property so as not to inhibit the movement of an endangered species of toad that resided on that property. "The hapless toad," he wrote, "for reasons of it’s own, lives it’s entire life in California", and thus falls outside of congress’ regulatory powers under the Commerce Clause.

This indicates an important understanding of the limitations the Commerce Clause was intended to incur, an understanding that has also been lacking on the court for quite some time. Granted one dissent in one specific case is not much to go on, but it isn’t much of a stretch to assume that Judge Roberts will apply the same jurisprudence in future cases. If so, we can expect that his ascension to the court will bring about a federalist jurisprudence that will serve the court and the country well, and will at least help curb the tide of federalism’s court-subsidized demise.

Hat Tip: OpinionJournal

Saturday, July 23, 2005

What Really Matters

In the days and weeks that passed between Justice O’Connor’s announced retirement and the president’s announcement of her successor speculation was justifiably rampant about just who the nominee would be. The relevant question throughout the whole process, in my view at least, was would the president nominate someone in the mold of a Scalia or Thomas, as he had previously indicated he would, or would he nominate a more results-oriented nominee such as the departing Justice O’Connor, thus avoiding a contentious confirmation fight in the Senate?

Instead, the question most commonly chewed on was whether the president was compelled to nominate a woman or a minority to replace the court’s first female justice. It got to the point where any reasonable person could have been forgiven for believing that the president was searching for someone to fill a diversity slot, not an open vacancy on the United States Supreme Court. The dialogue increasingly concerned itself more with identity politics than the more substantive issues it should have concerned itself with.

Now, to the president’s credit he selected the best person available for the job, and substance and merit carried the day, as it always should. He approached the vacancy looking for the person most capable, whose legal credentials, temperament, philosophy, and intellect were best suited for the nation’s highest court. Such an approach is the correct one, and it should be the model for filling any vacancy, Supreme Court or otherwise. Factors such as race, gender, religion, etc., are, for the most part, superficial and irrelevant.

One would also hope that we as a society have matured enough so that the implicit need to nominate someone simply for the purpose of creating an illusion of equality no longer exists. Selecting someone on the basis of race or gender doesn’t bring about equality, it only creates greater inequality, for it automatically results in the exclusion of someone else for the very same reason, leaving us right back where we started.

We all want equality, but there is a right way and a wrong way to achieve it. Equality is completely unattainable except through liberty, the liberty to compete with all others on the basis of your own personal merit and talents. Each individual must be regarded as just that, an individual, and not as some label. Until this standard is reached equality will simply be a dream which we vainly seek but are never able to attain.

Thursday, July 21, 2005

Broad Public Support For Roe?

A widely asserted claim by the punditry recently has been that the American public overwhelmingly supports a woman’s right to receive an abortion and opposes any potential reversal of Roe v. Wade. This assertion is based, almost exclusively, on a recent poll taken by the Gallup Organization that has 65% of Americans favoring Roe’s preservation. However other recently released data from Rasmussen Reports, one of the best polling firms in existence, counters this assertion.

While a majority of Americans certainly oppose any complete and unequivocal ban on abortion, they also oppose it’s broad implementation. 52% say abortion is morally wrong most of the time and 53% believe it is too easy to receive one. Only 18% believe it is too hard. Furthermore, 47% believe that the reversal of Roe v. Wade would result in the states deciding the issue themselves, which another 47% of Americans prefer. Just 39% of Americans believe that the Supreme Court should set the rules governing abortion.

While these numbers indicate that only a plurality desire the effects Roe’s reversal would bring, they also refute the notion that Americans broadly support it’s preservation. If anything, the division that exists over abortion and the lack of any clear consensus emphasize the need to return sovereignty over the issue to the states and the people, who can decide for themselves whether the practice is right or not.

Tuesday, July 19, 2005

The Nominee

The president officially nominated Judge John Roberts Jr. of the D.C. Court of Appeals to be the next Associate Justice on the U.S. Supreme Court tonight. Though other candidates such as J. Michael Luttig, Edith Jones, Emilio Garza, and Janice Rodgers Brown were preferable, Judge Roberts is an excellent choice and there is little doubt that he will markedly improve the quality of the high court. He has a superb, nay brilliant, legal mind and he comes with over twenty years of distinguished public service. Every bit of evidence available suggests that he is a strong "textualist", or someone who believes that a text should be given the meaning it had when it was adopted by the American people. Statements by the punditry that he more closely resembles his former boss Chief Justice Rehnquist than Justices Thomas and Scalia are really irrelevant, for the differences in their jurisprudential philosophies are for the most negligible. As long as his jurisprudence falls in line with those three he has my unreserved support.

UPDATE (11:54 P.M. 7/20/05): Amen.

UPDATE (1:25 A.M. 7/28/05): This guy's for real.

Friday, July 15, 2005

Defeating The Defeatist Mentality

America has never lost a war, and the only time we have been defeated is when we have defeated ourselves, by either losing the will to finish what we started or by simply retreating in the face of adversity. Our enemies in our current war know this, and on this fact their entire strategy in defeating the United States is predicated. Every bomb that explodes in the streets of Baghdad, or in the train tunnels of London for that matter, is targeted not at those that bomb kills or injures, but at the observing public back home, who justifiably cringe every time they view the carnage it inflicts on the nightly news. Al-Qaeda’s only hope of defeating us rests in the prospect that the American people will, after seeing too many of these pictures, lose the will to carry on. For the United States to be defeated the American public will have to conclude that the price simply isn’t worth paying, that if we leave them alone, they will leave us alone.

In this the terrorists are having some minor success, for already we are hearing from some circles that the war in Iraq has created more terrorists than had previously existed, and that the U.S. occupation has become a rallying cry for indoctrinated young Muslims who are swelling the ranks of al-Qaeda. These people believe that as a result of our presence in Iraq we are less secure than we were before, that we are more vulnerable to terrorist attack. Some of the more extreme elements even believe we should simply cut our losses and leave Iraq right away.

However to retreat from the world and the Middle East in defeat would be to fall into the same trap all of us willingly rested in before 9/11. We in the free world invite attack not when we are strong and active, but when we are, or at least are perceived to be, weak and dormant. We weren’t in Iraq or Afghanistan when our embassies in Africa were bombed, or when a boat full of explosives hit the Cole, or when planes were flown into the World Trade Center and the Pentagon. To fall prey to the belief that our actions are the culprit for terrorist acts perpetrated against us is to hand the terrorists the very victory they have been seeking and expecting.

Our main task then becomes not so much defeating the Zarqawi network within Iraq, but defeating the defeatist mentality that Zarqawi and company hope to foster here at home. What our leaders need to do, and specifically what our president needs to do, is come before the American people on a regular basis and reassure the people that what we are doing in the Middle East is right, and that winning in Afghanistan and Iraq is the only long-term solution to ending the type of terror that plagued us in London and New York, and that strikes in Iraq on an almost daily basis.

America and the free world will win this war, and we will defeat Islamic terrorism just as we defeated Communism, Nazism, and Fascism. The only way we can possibly be defeated is if we stop believing in our moral standing and purpose in this endeavor. As Ronald Reagan once said, "no arsenal, or no weapon, in the arsenals of the world, is so formidable as the will and moral courage of free men and women. It is a weapon our adversaries in today’s world do not have." With that will and moral courage there is no one or no thing that can defeat us, without it we become as vulnerable as we were pre 9/11. Our enemies know this, so must we.

Saturday, July 09, 2005

Why Roe Should Be Overturned

In the span of it’s existence the U.S. Supreme Court has handed down thousands and thousands of decisions, ranging both in issue and impact. However only a handful of cases have achieved lasting historical impact and defined and influenced the generation in which they were handed down.

Marbury v. Madison stands as the Marshall Court’s most infamous decision, and it was emblematic of that court’s significance in defining the role of the judiciary and the national government in our republic’s infancy. Dred Scott v. Sanford struck down the Missouri Compromise and subsequently the tenuous cease-fire that existed over the issue of slavery, paving the way for the Civil War and slavery’s abolition. Plessy v. Ferguson was instrumental in defining the new order following the Civil War and reconstruction by introducing the age of de jure segregation, an age which mercifully ended with the court’s ruling a generation later in Brown v. Board of Education. And last but not least, the court decision that has largely defined (and divided) this generation was the court’s ruling in Roe v. Wade, which set off a thirty year debate over the issue of abortion that continues to this day.

Personally I believe abortion is a detestable practice that should be limited to only cases of rape, incest, and necessity to the mother’s heath. Abortion takes the gift of life from those it destroys and it robs society and future generations of the unique gifts and talents that each human life possesses. It’s negative effect isn’t limited to the unborn either, for the decision to end the life of their children often afflicts the mother throughout her life.

However none of this carries any relevance in regards to the legal questions involved in Roe v. Wade and ultimately why the case should be overturned. In it’s decision, the court followed the precedent it had set in Griswold v. Connecticut by ruling that although there is no explicit right to privacy written in the constitution, the First, Third, Fourth, and Ninth Amendments constitute a "penumbra" of privacy rights that guarantees the right to receive an abortion. Such reasoning is disturbing, for when issuing a decision the Supreme Court should always follow the text of the constitution and what the framers intended it to mean. I very much doubt that when ratifying the above amendments the framers intended to create a "penumbra" guaranteeing the right to privacy.

Instead, when the framers saw an absolute right to privacy they clearly enumerated that right in the constitution: the right to freely practice religion in the First Amendment, the right to dominion over one’s home in the Third Amendment, and the right to resist intermittent and unreasonable government searches and seizures of one’s personal property in the Fourth Amendment. There are other examples as well, but arguing that these clearly enumerated rights of privacy added together insure a broader right to privacy that includes the universal right to receive an abortion is at best dubious.

Seemingly lost on the court was the clear guidance the framers left future generations in regards to such an issue, for the Tenth Amendment states that all powers not given to the national government, or prohibited to the states, belong to the states, or the people. In essence, when the constitution is silent on who power or jurisdiction belongs to it automatically belongs to the states or the people by default. If anyone doubts this they simply need to refer to the words of the constitution’s father, James Madison, who in Federalist No. 45 stated that the powers of the states are "numerous and indefinite", and include "all objects which, in the ordinary course of affairs; concern the lives, liberties, and properties of the people." This stands in stark contrast to the powers of the national government, whose powers are "few and defined", and which extend mainly to "external objects, as war, peace, negotiation, and foreign commerce".

Nowhere in the constitution is the power to regulate abortion given to the national government, and nowhere in it is it denied to the states. Therefore, the court’s decision, which disregarded and overturned numerous state statutes, was in error and the court’s judgement in Roe v. Wade should be reversed. Abortion is a state issue and the power to decide it’s legality belongs to the states and the sovereign people, not an oligarchy of nine.

Friday, July 08, 2005

SCOTUS Rumors

If the chatter over Chief Justice Rehnquist retiring today is true (some say it is not), than we will have two vacancies on the high court for the first time in over thirty years and the beginning of what is going to be a very interesting summer. Two openings as opposed to one will only further cement the Supreme Court and the Federal Judiciary as the major issue leading up to the '06 mid-terms, at least initially, which will favor Republican candidates in red states and put Democrats having to defend seats in those states, such as Sen. Ben Nelson of Nebraska and Sen. Kent Conrad of North Dakota, in a very uncomfortable position.

UPDATE (4:22 P.M. 7/8/05): It's pretty clear that the chief justice will not be retiring today, but consensus has moved to him retiring within the next couple of days, possibly Monday.

Thursday, July 07, 2005

We Stand With You

As Americans we extend our deepest condolences to the people of Great Britain on this tragic day and will continue to stand by those who have so faithfully and honorably stood by us.

Saturday, July 02, 2005

The Clinton-Hatch Allusion

Over the last few weeks we have heard many high-profile Democrats imploring the president to consult with members of both parties within the Senate before selecting a nominee to the Supreme Court . They have argued that consultation is the key towards selecting someone who can gain widespread approval and a smooth confirmation process. As evidence of this, they point to the two Supreme Court vacancies that opened up under President Clinton and the amicable consultation process that existed between him and Sen. Orrin Hatch, then the ranking member on the Senate Judiciary Committee.

However I get the sense that the Democrats who are alluding to these consultations don’t exactly remember how they took place, for they were successful not in the fact that a consensus nominee was agreed to, but because Sen. Hatch understood that a president is entitled to considerable personal deference in selecting a nominee. Sen. Hatch counseled President Clinton on the logistics of the confirmation process, not what judicial philosophy his nominee should hold. In fact, Sen. Hatch recommended two judges who would go on to be President Clinton’s two nominees, Stephen Breyer and Ruth Bader Ginsburg, and two of the court’s most liberal justices. I’m sure President Bush would welcome a similar sense of cooperation as well, but no reasonable person expects Sen. Leahy or Kennedy to afford President Bush the same deference that Sen. Hatch afforded President Clinton.

In contrast, as their statements have already indicated, the Democrats seek to influence what type of judicial philosophy the next nominee will hold. In essence they want a veto. If the president’s nominee isn’t a liberal, results-oriented jurist similar to President Clinton’s two nominees than the Democrats are going to inevitably claim they were never consulted or heard. The president should, and already has, opened up a dialogue with Democratic leaders, but those who expect that dialogue to result in any sense of cooperation or bipartisanship are setting themselves up for disappointment.

Hat Tip: Ed Whelan, Paul Mirengoff

Friday, July 01, 2005

Justice O'Conner Retires

Justice Sandra Day O'Conner submitted her resignation to President Bush this morning and thus ended a twenty-four year stay on the nation's highest court. Let me first congratulate her on her accomplishments during that period and thank her for her service to her country. I and the rest of the nation wish her the very best in her retirement and continued good health for many years to come.

Now to the business at hand, which is finding and confirming her replacement. As my opinions on recent court decisions have shown, I am growing increasingly concerned with the court's troubling disregard for the words and meaning of the constitution. In recent cases they have ruled that the Commerce Clause allows congress to regulate activities that are neither commercial nor interstate, that the Takings Clause allows local governments to seize private property not only for public use, but for public "purpose" as well, and that one ten commandment display in Texas doesn't violate the Establishment Clause while a similar one in Kentucky does. On what constitutional grounds these rulings are based on is unclear to me and many others, conservative and liberal alike.

Frankly it's time to reintroduce the constitution to the Supreme Court, which means sending justices to the court who, when making a ruling, will be guided by the word and intent of the constitution, and not exaggerate those words to mean something completely irreconcilable to it. There are many fine candidates out there who will meet this standard, and the president should have no problem finding a qualified nominee. Hopefully that nominee will receive a fair hearing and up or down vote on the Senate floor, as well as a civil and honest debate. As the president said this morning, that's what the nominee and this country deserve.

UPDATE (9:46 P.M. 7/3/05): The case for a constitutionalist nominee.

In Support Of CAFTA

As all free-trade measures seem to do, the Central American Free Trade Agreement (CAFTA) has met it’s fair share of resistance and opposition in congress. Protectionists argue that the pact will result in more losses in certain agricultural industries here in America, specifically sugar, and greater exploitation of labor in Central American countries. They also argue that CAFTA will bring about a greater trade deficit here at home, and most importantly, will result in more American jobs being outsourced to other countries. All this borders on hysteria, for as history and our current prosperity have shown, free trade is the surest way to grow the economy.

The passage of CAFTA will immediately open up newer markets for American goods, and that infusion will help grow the Central American economies, which will in turn create even greater demand for American products. Furthermore, any jobs that might be lost as a result of freer trade with Central America have already been lost, for 80% of goods from that region arrive here duty free anyway. CAFTA will simply add some reciprocity to the trade situation.

CAFTA’s benefits won’t be simply economic either, for it will provide an invaluable boost to the political situation in that region of the world as well. Increased economic growth in Central America is the most effective means available in strengthening democracy’s hand in that region. To quote Deputy Secretary of State Robert Zoellick, "[n]othing is a more secure anchor for democracy than citizens who are employed and building better lives for their families."

CAFTA enhances our economy as well as our geopolitical interests. It will open up new markets for American business and commerce and it will help improve the neighborhood in which we live. The Senate has already approved the pact, it is now time for the House to step up and do the right thing and approve it as well.

Hat Tip: Daniella Markheim, Robert B. Zoellick

UPDATE ( 10:30 P.M. 7/27/05): CAFTA has passed the House 217-215.