The Proud Duck

Thoughts on policy, history, faith, baseball when I get around to it, waterfowl, and life in general by a junior attorney who'd much rather have Jonah Goldberg's job. Or possibly Darin Erstad's.

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Thursday, August 11, 2005
Judge John Roberts has come under fire from environmental groups because of his dissent in the Rancho Viejo v. Norton case, in which he questioned whether the Endangered Species Act, passed pursuant to Congress' power under Article I, section 8 of the Constitution to regulate interstate commerce, applies to "a hapless toad that, for reasons of its own, lives its entire life in California." That is, we're not dealing with an interstate toad here.

Judge Roberts' reasoning is consistent with the Supreme Court's holdings in the Lopez and Morrison cases, in which the Court, for the first time since the 1940s, ruled that the Commerce Clause is not a license for the federal government to regulate any old thing. There has to be some connection between what is regulated and interestate commerce that passes the laugh test.

Typically, this argument -- essentially a procedural one interpreting the mechanics of the Constitution -- is being spun as supposedly showing that Roberts opposes environmental protection. As I wrote in my last post, this is consistent with the Left's confusion of judges with legislators. A constitutional law judge is supposed to apply the law, not make it. (Common law judges are a different story, but we're not dealing with the common law here.)

Saying that Judge Roberts is opposed to environmental protection because he doesn't conclude that the Constitution, as it's written, gives the federal government a particular regulatory power is like saying that if a judge thinks the Constitution's prohibition of cruel and unusual punishments forbids us to flay rapists alive and impale their heads on pikes, he's in favor of rape.


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