Thomas Sowell
May 18, 2000
Ignorance of freedom
Five years ago, there was
great consternation when the
Supreme Court ruled that
carrying a gun near a school
was not interstate commerce. On
May 15, 2000, there was great
consternation when the Supreme
Court ruled that rape was not
interstate commerce. It is a sign of
how twisted the law has become
that each of these common sense
rulings was by a narrow 5 to 4
majority.
While the 1995 case involved a
federal law against carrying a gun
within a certain distance of a school,
this year's case involved a woman
suing two men for rape under a
federal law. Neither case was about
whether the law was good or bad.
The cases were about Constitutional
limits on the powers of the federal
government -- and all our freedoms
depend upon maintaining those
limits.
The feds have been getting around
the Constitutional limits by claiming to be regulating
interstate commerce. But the Supreme Court didn't buy
it.
Rape is already illegal in every state. What the recent
ruling said in effect was: You are in the wrong
courthouse, lady. Sue those so-and-so's in the state
courthouse down the street. State courts have the power
to do everything up to and including executing people,
so sending a case to a state court is no wrist slap.
Why does it matter whether a case is tried in a federal
court or a state or local court? It matters because a
concentration of power is dangerous. The people who
wrote the Constitution of the United States understood
that -- and feared that -- even if too many of us today do
not.
The familiar division of federal power among the
President, the Congress and the Supreme Court was
just the beginning. The Constitution also made it
possible to impeach anybody who abused his power. In
addition, the crucial 10th Amendment to the Constitution
said that the federal government had the power to do
only what it was specifically authorized to do, while the
people or the states could do whatever they were not
specifically forbidden to do.
This was understood for about 150 years. Then, during
the heady days of the New Deal, the federal
government's power to regulate interstate commerce
was stretched to include virtually anything that the
politicians in Washington chose to regulate. In one case,
the federal government's agricultural laws were applied
to a man who grew his own food in his own backyard.
The rationale was that he indirectly affected interstate
commerce, because otherwise he might have bought
food shipped across state lines.
As the years went by, the interstate commerce clause of
the Constitution was used repeatedly to circumvent the
10th Amendment. It was very clever -- and very
dangerous, because it took down the fence that the
Constitution had put around federal power.
Perhaps worse, people began to judge Supreme Court
decisions by whether those decisions helped or hurt
policies that those people favored or opposed. The
whole idea that the courts were there to maintain the
framework of law -- on which everyone's freedom
depends -- got lost in the shuffle.
When the Supreme Court ruled in 1995 that carrying a
gun near a school was not interstate commerce, there
was consternation because it was the first time in
decades that the high court had said that you couldn't
just put "interstate commerce" on everything, like
ketchup. Much of the outrage against this decision was
based on people's thinking that the court was saying that
it was OK to carry guns near a school.
What was truly scary was that people could see no
further than the particular law or policy right under their
noses. Current shrill reactions to the Supreme Court's
ruling that Congress had no authority to create a federal
law against rape is equally scary. The court was not
voting in favor of rape, but in favor of dealing with rapists
in state and local courts -- in order to maintain
Constitutional limits on federal power.
At the end of a century that has seen unspeakable
horrors from the unbridled powers of governments, you
would think that people would understand how important
it is to keep federal powers from constantly expanding.
Even in totalitarian countries, dictatorial powers did not
suddenly appear overnight. The central government's
powers just kept steadily growing, using claims to be
meeting some particular need or crisis -- until, finally,
freedom was all gone.
�2000 Creators Syndicate, Inc.
Copyright 1991-2000
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Shalom, A Salaam Aleikum, and to all, A Good Day.
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