Deference to Congress

by Henry Farrell on November 2, 2005

Norm Ornstein, who sometimes seems to be the AEI’s sole remaining scrap of credibility, has an op-ed in _Roll Call_ today on the Alito nomination. The original version is behind _Roll Call_’s paywall, but “Steve Clemons”: has the relevant extracts.

To borrow and adapt a phrase, I know John Roberts; John Roberts is a friend (all right, an acquaintance) of mine. And Sam Alito is no John Roberts.

What is the difference? Roberts respects Congress and its constitutional primacy; Alito shows serious signs that he does not. Some time ago, Jeffrey Rosen, a superb legal scholar, pointed out Alito’s dissent in a 1996 decision upholding the constitutionality of a law that banned the possession of machine guns. We are not talking handguns, rifles or even assault weapons. We’re talking machine guns.

Congress had passed the law in a reasonable and deliberate fashion. A genuine practitioner of judicial restraint would have allowed them a wide enough berth to do so. Alito’s colleagues did just that. But Alito used his own logic to call for its overturn, arguing that the possession of machine guns by private individuals had no economic activity associated with it, and that no real evidence existed that private possession of guns increased crime in a way that affected commerce — and thus Congress had no right to regulate it. That kind of judicial reasoning often is referred to as reflecting the “Constitution in Exile.”

Whatever it is, it’s not judicial restraint.

… Too many judges, including some of the brightest, talk a good game of judicial restraint, but somehow find that deference is due Congress only when it passes laws they like. The smart ones find some rationale for overturning laws they don’t like, preserving a patina of consistency, but not more than that. (A few, including Clarence Thomas, don’t even pay lip service to the principle when voting to overturn legislative acts.)

Now Ornstein’s writing from the perspective of a Congress scholar who wants to preserve Congress’s role and prerogatives. But he has a very serious point. If Alito has aligned himself, as he “seems to have”:, with a highly restrictive view of Congress’s powers to regulate interstate commerce, he’s bad news for the left.

Update: the complete column is “here”:,filter.all/pub_detail.asp (thanks to schwa in comments).


by Henry Farrell on November 2, 2005

While we’re on the subject of Google Map and Google Earth overlays, “Kathryn Cramer”: and her friends have been doing some interesting and important work on importing satellite data as overlays, and using this as a means to disseminate information about, and focus attention, on natural disasters. This information can be used to discover hill carvings of knights and dragons; but it can also (and this is Kathryn’s main point) bring home what’s happening in disaster zones such as the earthquake region in Pakistan.

Keep on adding

by Chris Bertram on November 2, 2005

I see that the left sidebar now has a permanent link to Eszter’s “Frappr Map of Crooked Timber”: readers (scroll down: under Frenzy of Renown). Add yourselves (if you want to and you haven’t already – especially if you come from Africa, South America, Eastern Europe or Antarctica).