Washington New York Sen. Charles Schumer, a member of the Judiciary Committee and an author of the Democrats' catechism regarding constitutional reasoning, soon will be questioning John Roberts. Herewith some questions someone should ask Schumer:
Does Congress have the power to require Americans to floss after brushing their teeth? Or to regulate the amount of homework children do each night?
The federal government's powers supposedly are limited because they are enumerated. As James Madison said in Federalist 45, "The powers delegated by the proposed Constitution to the federal government are few and defined." 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 5-4 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 which 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 mandating 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? Do you think that Madison, the foremost Framer of the Constitution, misunderstood the Constitution?
During debate on the 1964 Civil Rights Act, Hubert Humphrey, the Minnesota Democrat who was one of the principal sponsors of the legislation, denounced the "wholesale distortions" and "nightmarish propaganda" that the law would permit preferential treatment of an individual or group because of race or a racial "imbalance" in employment. Humphrey stressed that under the act no employer would be permitted to "take into consideration race" because it would "prohibit preferential treatment for any particular group." Tom Kuchel, a California Republican and another leading sponsor, said the legislation was "colorblind" and would prevent discrimination "in favor of or against a person because of his race." Are such assurances germane to judging the legality of what are called "race-conscious remedies"?
In 1868, when the 14th Amendment was enacted with its guarantee of "due process" under the laws, 32 of the 37 states had laws criminalizing sodomy. If you agree with the Supreme Court's 2003 ruling that such laws violate the due process guarantee, do you think the Amendment's framers and ratifiers meant for it to overturn the 32 states' laws? Or do you think the meaning of the Amendment's words somehow changed? If so, how did that happen?
Eighty-five years ago, a consensus having formed in favor of female suffrage, the 19th Amendment was added to the Constitution by democratic processes. Justice Antonin Scalia has written:
"The battle was not fought in the courts, and few thought that it could be, despite the constitutional guarantee of Equal Protection of the laws; that provision did not, when it was adopted, and hence did not in 1920, guarantee equal access to the ballot but permitted distinctions on the basis not only of age but of property and of sex. Who can doubt that if the issue had been deferred until today, the Constitution would be (formally) unamended, and the courts would be the chosen instrumentality of change?"
Do you agree with Scalia's use of the word "hence"? Do you think female suffrage could properly have been conferred by courts construing the Equal Protection Clause?
If so - if you think the Constitution is a "living document," the meaning of which changes with the sentiments of society's changing majority - in what sense is it still a constitution?
Scalia says, "This, of course, is the end of the Bill of Rights, whose meaning will be committed to the very body it was meant to protect against: the majority." Is he wrong?
On another matter, in Roe v. Wade the court said that a privacy right - an "emanation" of a "penumbra" of other rights - guarantees a right to abortion, but also said that right changes with each trimester of a pregnancy. Does it seem at all odd to you that the meaning of the Constitution, or at least of its emanating penumbras, would be different if the number of months in the gestation of a human infant were a prime number?