Powerful judiciary is at stake in presidential election

By Thomas L. Jipping
web posted May 29, 2000

America's founders said the judiciary is the weakest, the least dangerous, branch of government. What a difference a couple of centuries make. This year it is the judiciary, and especially the Supreme Court, that is the biggest thing at stake in the presidential election.

The Supreme Court's recent decision striking down the Violence Against Women Act is a good example of how much is at stake. Government power and our freedom are inversely related. Knowing this, the founders created a system that imposed more limits on government where the threat to our freedom is the greatest. The formula is simple: the powers given to the federal government are few and defined, while the powers retained by the states and the people are many and indefinite.

If the feds must justify what they do by identifying one of these few and defined powers, the threat they pose to our freedom might just be kept to a minimum. In this way, it takes more than a good idea, a popular slogan, a potent cliché, or an opnion poll to set the feds in motion. The ends do not justify the means.

This all changed in the 1930s. With the Great Depression upon us, and President Franklin Delano Roosevelt promising to solve all our problems, the question became what we want the feds to do rather than what the feds are allowed to do.

Since then, for example, the federal government's power to regulate interstate commerce has been re-interpreted over and over and over to allow the feds to do almost anything. The few and defined powers have suddenly become a blank check.

Twice in the last five years the Supreme Court has said this trend cannot continue. In 1995, the Court said a federal law banning possession of a gun near a local school went too far. Simply possessing a gun not only is not commerce, it is not an economic activity at all. Nothing in the Constitution allows the federal government to regulate such things. Sure, it's possible to create hypotheticals and stories with steps and permutations to connect local activities with the economy. But an active imagination is not a legitimate tool for interpreting the Constitution.

Now the Court has done it right again. Sexual assault is a local or state criminal law matter. The desire to promote the issue more is not enough to bump it from the states to the feds. Sexual assault is neither commerce nor economic activity. Some mind-bending tale about how sexual assault will keep women indoors, out of the malls, and not spending money is fiction, and not very good fiction at that.

I describe all that to say this. Both of these decisions, the only two to hold back the feds from regulating absolutely ever aspect of your life, were 5-4 decisions. Chief Justice Rehnquist and Justices O'Connor, Kennedy, Scalia, and Thomas are all that hold the feds back. The next president will likely appoint a couple of Justices, and the retirements may well come from this group. That means the next president will determine, through those appointments, whether the Constitution will do what it was created to do - limit government and protect our freedom. Don't expect the candidates to talk about things so important, but nothing less than that is at stake.

Tom Jipping is the director of the Center for Law and Democracy at the Free Congress Foundation.

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