It's Hard to Understand a Constitution If You Don't Have One

A BBC article criticizes the nomination of John Roberts as Chief Justice because he just might agree with recent Court majorities:

This is a story about a Princess and a frog, about a kiss and a betrayal. But it's not a fable...

The Princess in our story is an honorary title I've bestowed on her for a grace and spirit superior to the rather sulky Princess of the fables. She's a young woman named Christy Brzonkala. She was a bubbly high-school basket player who enrolled at Virginia Polytechnic Institute in the expectation of qualifying for a sports career.

The frog is Bufo. To give him his full name, Bufo is Bufo microscaphus californicus who lives in southern California. Strictly speaking he's toad, but a very distinguished toad, his head crowned by a white v-shaped cross...

It was with rare creatures like Bufo in mind that the US Congress passed the Endangered Species Act in 1973. Bufo has been proudly on the protected list since 1994 - that was the year Christy began her new life as a student at Virginia Tech.

It was with women like Christy in mind that the country's principal law-making body, Congress, spent four years listening to testimony from victims of rape and domestic violence, backed up by reports from law enforcement agencies, physicians, and federal and state officials.

In the U.S., "testimony" doesn't change the Constitution - amendments do. We continue:

So in 1994 Congress in its wisdom, with both political parties in support, made a new federal law, the Violence Against Women Act. It provided funds for enforcement.

In it's wisdom... that's nice... except Congress can't amend the Constitution merely by being "wise."

One night that very September, a few weeks after her 18th birthday, Christy was devastated. An innocent kiss turned into a brutal gang rape by Virginia Tech football players led by one Antonio Morrison.

When she pressed charges through the university's judicial system, the jocks on campus were hostile. Football matters such a lot in American colleges. There was no frog to retrieve her golden dreams.

Virginia Tech administrators considered the allegations of rape strongest against Morrison and suspended him for two terms. Morrison's family appealed, claiming he was being treated unfairly because he was black. The university's provost - a woman - decided his punishment was excessive. She allowed him back on campus and into the team.

This is where the article finally falls apart. Christy's response to a "brutal gang rape" was to go to the university's judicial system? That makes about as much sense as taking it to the League of Nations. University judicial systems have one primary purpose - to keep the criminal acts of students from the police. The writer does not address why (or if) criminal rape charges in the Commonwealth of Virginia (the appropriate authority) were not possible.

But more importantly, the author demonstrates a misunderstanding of the Constitution that sadly even many Americans share. Despite all the claims of the intent or wisdom of Congress, the Constitution restricts the power of the federal government by limiting it to enumerated powers. The most abused congressional power is the power to regulate interstate commerce. In both of these cases, claimed ties to interstate commerce are laughable. The tie to a Roberts decision is similarly absurd:

Bufo, like the Princess, was menaced by big guys. In his case, the big guy was a San Diego developer who wanted to get his hands on the soil from Bufo's breeding round. This would have been the end of Bufo and all his kind. The US Fish and Wildlife Service - Bufo's bodyguards if you will - stopped the developer. So the developer went to court. A three-judge panel in California ruled for Bufo and against the builder. For their authority, they relied on that commerce clause.

Step forward Judge Roberts - that pivotal nominee for the Supreme Court. Everyone has been trawling through his record to see how he might tip the balance of the Court...

Bufo, he said, ought not to have been protected by the interstate commerce clause, because "he is a hapless toad that for reasons of its own lives its entire life in California."

That's not quite what the Roberts opinion said, but it's close enough. The question is where Congress gets the power to protect/regulate a non-commercial animal with no interstate attributes. Similarly, no matter how sad Christy's case might be, where does Congress get the power to impose a federal criminal rape law on the entire nation? Federal criminal laws are normally based on clear federal jurisdiction, such as crimes occurring on federal property. Regardless of how "wise" a particular policy might be, Congress can only impose it through enumerated powers and cannot unilaterally amend the Constitution (compare to the British Parliament which recently abolished Double Jeopardy protections).

But then again, it's easier to whine than to actually read the Constitution.