"I think he meant the pesky Commerce Clause, or the specific enumeration of powers. Regardless, I feel obliged to stand with Rehnquist on this one (ack): if Congress can create a gun-free zone, then it can do anything, but given specific enumeration of powers this cannot be the case.Congress shouldn't be able to do literally anything, but the Court has seriously overstepped its bounds already.
Jonathan Adler (at Volokh) is skeptical."
For example, while the D.C. gun ban was ineffectual, the court's decision includes a first amendment type right to bear arms — an invention of right-wing psychopathy made law by the narrowest of majorities. Or take the Exxon case — the court has seriously disrupted our tort-based de facto corporate regulatory regime. And overturning the millionaire's amendment to CFR while leaving Voter ID laws alone is just an insane class-ist interference in the voting process.
And we haven't even seen what Anthony Kennedy, our current little tyrant, will do after Congress and the Presidency swing to the left next year. One doesn't have to believe in a secretive "Constitution in Exile" cabal to see that Kennedy is likely to disagree with some of the more economically progressive legislation set to come out of Congress. What if the court decides that Health Care Mandates are unconstitutional, for example?
Thus far the Democrats haven't tried much, because getting to 60 in the Senate is so hard, and even then the veto pen waits. The Roberts (Kennedy) Court has yet to encounter really liberal legislation. Only time will tell, but I'd wager that the Court is set to seriously fuck with the Democrats in a way they never even contemplated during Bush's term.
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If this keeps up, I'll have to start my own blog (evil thought).
I would agree that the court oversteps its traditional bounds, but given a Congress which simply passes whatever the hell it wants (Schiavo) such an outcome was perhaps inevitable.
I have to disagree on the 2nd amendment; speaking strictly as a historian the scholarship is very convincing on the nature of the amendment, and that it was not intended as a collective right. I'm more troubled that four justices were prepared to distort the historical record in pursuit of public policy--that's Congress's job.
I suppose I can agree to the possibility of a classist reading of Crawford and Davis. The former, in theory, makes it harder for the poor to vote (interesting to find Stevens there), while the latter makes it easier for wealthy candidates to unseat incumbents. Stevens either didn't get the memo about which side he's on or didn't care. I would argue, however, that McCain-Feingold is a much broader interference in the electoral process than any voter fraud act. The real abuse is gerrymandering, but there's not a lot of push-back there.
I can't speak to the specifics of maritime tort; as it's seriously out of my area. I still find it strange to see St. Joe implicated when he wasn't on the bridge at the time of the collision and was acquitted at trial.
Far more interesting, to me, is the consistent refusal of the federal courts to play ball with Bush's unlawful (to say nothing of immoral) "enemy combatant" bullshit. Boumediene is an outlier in that the ruling almost went in the government's favor. Scalia's and McCain's hysterics were obvious, and silly, posturing.
I'd be surprised if the court pushed back against a strong Democratic Congress, although it's possible. Even after Lopez there's not much interest in the commerce clause, and Kennedy isn't one to let the constitution get in his way. Figure Stevens will retire when Obama wins, and a young liberal justice will replace him. No one else seems especially close to retirement.
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