Topic: Commerce Clause
Senator: Cornyn
Date: SEPTEMBER 13, 2005
Contents
CORNYN: Senator Schumer asked about the commerce clause, and I've been fascinated by this debate about the commerce clause.
Of course, you know, when this nation got started -- of course, first we had the Articles of Confederation, where the states were supreme and the nation couldn't function unless all states agreed. And so the federal government was essentially impotent, which led, of course, to the Constitutional Convention and a federal form of government where states and the federal government shared powers.
And now it's interesting to hear -- of course, we've seen a growth of national power over the years, through a series of court decisions. And Congress, frankly, has pushed the envelope and tried to argue that Congress has virtually unlimited power to legislate and can crowd out state governments completely out of any field it wants to.
But is it true that there are specific jurisdictional bases upon which the Congress can legislate?
CORNYN: In other words, under the Fourteenth Amendment, Section 5, under the commerce clause -- in other words, the Constitution of the United States was supposed to be a constitution of delegated or enumerated powers, and interstate commerce being one of those enumerated powers -- of course, there are other provisions like the necessary and proper clause.
There have been a lot of decisions over the years about whether it's only powers expressed, or implied and the like.
But isn't it true that the Supreme Court in the last decade has finally said in Lopez and Morrison, for example, that federal power is not unlimited; that there is some limit and the fight is really over where those limits are? Would you agree with that?
ROBERTS: Yes, Senator.
And I do think that a proper consideration of Lopez and Morrison has to take into account the more recent Supreme Court decision in Raich, where the court made the point that, yes, we have these decisions in Lopez and Morrison, but they are part of a 218-year history of decisions applying the commerce clause and they need to be taken into account in the broad scope. It's an appreciation; again, the first one in 65, 70 years that recognized a limitation on what was within the commerce power.
But they're not sort of -- they didn't junk all the cases that came before. They didn't set a new standard. That's what the court said in Raich. It said, yes, we have those two cases, don't over read them, put them into context and move on from there.
And as the court in Raich concluded, they upheld the exercise of Congress' authority there.
CORNYN: Well, I don't think it would come as any surprise to anyone who's listening to these proceedings outside of the Beltway that our government was premised in part on the notion that all wisdom does not emanate from Washington, D.C., and that the states do have areas of competence and authority to the exclusion of the federal government.
And one of the great things, I think, about this hearing is that a lot of people I think are learning and hearing about concepts that perhaps they had never heard about before.
CORNYN: But really these are debates that have occurred since the beginning of America itself and since the formation of our government.
So I hope that this is an educational experience or maybe even a refresher course for many of us about some basic principles upon which our government was founded.
And of course the most important principle from my standpoint is that articulated in the Declaration of Independence itself that says that our laws are based on consent of the governed, which means that most of the debates we have about the laws and the policies that will govern us and affect our families and our jobs are going to be decided in the political realm, where people can muster majorities and vote and have laws signed, and people who are in the minority may live to fight another day and turn that law over in the political forum.
And very few cases, very few issues will be completely removed from that political forum, and those are the cases where the Constitution precludes legislative activity.
But I very much appreciate your expression of the role of the judge as one having a sense of humility and modesty. That's not to say, from the way I look at it, or I'm sure the way you look at it, that the job of a judge is unimportant. Being a judge is not easy all the time because you have to make tough decisions, which may not be politically popular. But that's what goes along with the territory.
But I appreciate the distinction that you've made and articulated for us here in preserving the vast majority of the debates and issues that affect each of us in America and our families and our jobs as one where we can govern ourselves through our elected representatives. And if we don't like the way that our elected officials are deciding things, we can throw the rascals out.
But we can't do that when it comes to an appointed lifetime tenured judge on the Supreme Court. And so I appreciate very much the distinction that you're drawing.
With that, Mr. Chairman, I'll surrender back two and a half minutes.
SPECTER: Thank you very much, Senator Cornyn.
ROBERTS: I thank you, too.
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