Gore's court: The nightmare continued

If that majority holds, federal laws such as the "Violence Against Women Act" (VAWA) will be struck down as the federal power grabs that they are. VAWA was justified by Congress as an exercise of its authority under the Commerce Clause-this is not a joke-on the theory that fear of violence limits women's capacity to travel across state lines.

Congress's alternative theory for its constitutional authority to enact VAWA was that Congress was simply exercising its authority to enforce the Equal Protection Clause. That would have been a good theory if it weren't so preposterous. It requires one to believe that the federal government is desperately needed to step in and stop the states from oppressing women-as if women were required to wear chadors and denied the right to vote in some parts of the country. One federal court of appeals has already held VAWA unconstitutional. No Bad Democrats

If a President Gore replaces any one of the five justices in the majority on these federalism decisions, including Justices O'Connor or Rehnquist, Congress's power will be largely unchecked. What this means concretely is not clear. But judging from the recent proclivities of the legislative branch, some educated guesses are possible.

Without niceties like the Constitution to rein them in, Congress will be able to declare open season on the productive elements of American society, so unlike itself. Habits liberals find distasteful-such as smoking, drinking, owning guns, hiring employees and selling legal products-will be bankrupted by trial lawyers as Congress goes about establishing ever-expanding legal causes of action. Budweiser could go the way of Dow Corning.

Interestingly, limits on Congress's authority should not be a left-right issue, though it often breaks down that way in practice. But consider that not only silly liberal laws like VAWA and the "Gun Free Schools Act" are beyond Congress's constitutional authority under any serious reading of the Constitution, but so are laws some conservatives like, such as the Parental Rights Act and the Religious Freedom Restoration Act (already held unconstitutional by the court).

Activist Supreme Court nominees will be the most important consequence of a Gore presidency. Presidents Reagan and Bush had five shots to appoint Supreme Court justices who did not have visions of an imaginary "Penumbras and Emanations Clause." But like Night of the Living Dead, three of the five were from the other side-the Let's-Make-Stuff-Up! school of jurisprudence.

If Gore is elected, we'll be living with the imaginary abortion clause for another decade or two. Another Democrat on the court and they might even overrule the abortion-funding cases, holding that if the government provides benefits for childbirth, it must provide them for abortion.

To paraphrase the Republicans' current battle cry-there are a lot of bad Republican appointments, there are no good Democrat appointments.

Copyright Human Events Publishing, Inc. Jul 9, 1999
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