Roberts and Alito on Lopez

Reason's Jacob Sullum shares my concerns about Roberts on the Lopez decision (Roberts took the narrow view in his confirmation hearings, suggesting that a mere jurisdictional requirement would have saved the law):

Yet according to Roberts, the crucial defect in the Gun-Free School Zones Act was its lack of a "jurisdictional element" requiring the government to show that a firearm involved in a violation had traveled at some point in interstate commerce. In 1996 Congress passed a new version of the law that includes this requirement, which (as Roberts noted) is generally easy to meet.

They have some troubling words about Alito on this issue, but frankly, we're not likely to get someone better on this issue from this President; especially not after the rejection of Miers.

As Justice Clarence Thomas has been arguing for years, the Supreme Court cannot enforce principled limits to the Commerce Clause as long as it allows Congress to regulate not only interstate commerce but anything (including, we discovered this year, homegrown medical marijuana) said to have a "substantial effect" on it. Roberts told the Senate Judiciary Committee he has "no agenda to overturn or revisit" that doctrine, and it seems unlikely that Alito does either. Sadly, it looks like the "constitutional freak" is Thomas.

Remember, however, that lower court judges are bound by precedent. Supreme Court justices are free to overturn precedents they think are wrong, although Roberts in particular characterized himself as reluctant to do so.

Posted on 2005-11-02 20:36:17.0 by matthew@triggerfinger.org

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