ROSCOE AND ROBERTS

Silent screams. Night sweats. Quiet desperation. The whispered dread of impending doom. Liberals are suffering all of these anxieties over soon-to-be Justice John Roberts – at least the smart ones are who know the stakes.

Those stakes go far beyond Roe v. Wade. Smart liberals know the entire gigantic edifice of Federal bureaucratic control over our lives, which they have been painstakingly building since the 1930s, has as its foundation one thin reed of six Constitutional words tortured beyond recognition. Invest those words with normal recognizable meaning, and thousands of Federal laws and regulations are defunct.

This is the conservatives’ and the libertarians’ dream, and the liberals’ nightmare. What keeps making the liberals sit bolt upright in bed is knowing there is nothing they can do to prevent their nightmare from coming true. John Roberts is so vanilla ice cream nice, so Disneyland non-threatening, he’s impossible to demonize.

What compounds the liberals’ torment is knowing Bush chose Roberts for all these reasons on clear purpose. They know Bush knew exactly what he was doing in nominating a Stealth Revolutionary for the Supreme Court.

To understand why, we need to talk about a farmer named Roscoe Filburn from Montgomery County, Ohio, who grew 23 acres of wheat back in the 1930s. Even though Roscoe used most all of his wheat himself – feeding it to his poultry and cattle or milling it into flour to feed his family – this was 12 more acres than he was allowed under the recently-passed Agricultural Adjustment Act as part of Roosevelt’s New Deal.

When Agriculture Secretary Claude Wickard sued him in 1941 for violating the act’s production quotas, Roscoe argued that the Constitution did not give the federal government the authority to tell him how much wheat he could grow on his own land for his own use. The Supreme Court, in Wickard v. Filburn , found Roscoe Filburn guilty.

Article I, Section 8, Clause 3 of the Constitution is known as the Commerce Clause, empowering Congress to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” That portion of it, the authority to “regulate Commerce among the several States,” is called the Interstate Commerce Clause. These six words have been the primary means used by liberals to grow Federal Governmental power – starting with Wickard v. Filburn.

The Court, believe it or not, found that Filburn’s growing wheat for his own farm’s consumption (what if everybody did that? the Justices asked) could have “a substantial effect on interstate commerce.”

For over half a century after this straightforwardly fascist decision, not once did the Supreme Court find that any regulatory activity of the Federal Government was restricted by the Interstate Commerce Clause. Finally, in United States v. Lopez , the Rehnquist Court – to liberal’s amazement – placed limits on the authority of the Feds to regulate our lives.

Rehnquist wrote the decision himself. If there is one thing anyone who has clerked for him will tell you, he is passionate about restricting the overreach of the Commerce Clause. This passion is drilled into their heads. John Roberts was one of those clerks.

At last there seemed the possibility of reeling the Federal Juggernaut in – but no such luck. Last month in Gonzales v. Raich , Antonin Scalia joined the Dark Side in agreeing that the Commerce Clause entitled the Feds to prosecute a woman for raising six marijuana plants to use for her medical condition – which her doctor testified she might die of, and which California law permits.

In his opinion, Scalia repeatedly relied on the 1942 Wickard decision. Rehnquist, along with Clarence Thomas and Sandra Day O’Connor, strongly dissented.

Whatever emotions regarding marijuana use that drove Scalia to depart from his judicial philosophy of strict interpretation of the Constitution rather than fascist New Deal precedents, they will be overcome by Roberts’ superior intellectual rigor and firepower.

In his dissent in Rancho Viejo v. Norton while on the DC Circuit Court of Appeals, Roberts denied that the Commerce Clause permits the Federal Government to apply its sacred Endangered Species Act to a critter – the Arroyo Toad in this case – that lives wholly within a single state.

Roberts’ dry sense of humor was on display when he ridiculed the notion that: “Regulating the taking of a hapless toad which, for reasons of its own, lives its entire life in California constitutes regulating ‘Commerce … among the several States.’”

Since the habitat of most “endangered species” is entirely within a single state, the Endangered Species Act would be gutted by a Supreme Court decision with this legal reasoning.

This is why the Washington Post, in a July 25 editorial, criticized Roberts’ “too narrow view of Congress’ power to regulate interstate commerce.” The liberals’ tyrannical secret is that any limit on this power is too narrow for them.

But then the WaPo let the cat out of the bag – for it went on to describe the Interstate Commerce Clause as: “The constitutional backbone of the modern regulatory state.”

In other words, the Commerce Clause as interpreted since Wickard is the critical vulnerability of the liberal Washington bureaucracy and the liberal interest groups that support it.

Thus the liberals are terrified, and paralyzed with frustration – because you can’t ramp protestors into a frenzy over the Commerce Clause like you can over abortion. They know that Roberts’ confirmation is baked into the cake by chef GW who prepared the recipe.

Of course they are desperately trying to find something to whip people up into a mouth-frothing frenzy. But in the end, they know Roberts is too smart and too smooth for them to derail him.

So get set folks, as we head off into an Era of Constitutionality. It won’t be a ride in a rocket ship. Roberts will be a Fabian Constitutionalist. He will apply the actual words and literal meaning of the Constitution incrementally. His will be a slow progression, a steady dismantlement of liberal perversions of our Constitution. He is a revolutionary who will take his time to complete the task – but hopefully not all of those 30 years he is predicted to be a Justice.

(Yes, the exception will be Roe v. Wade: the power of his intellect will cause a court majority to dispense with it in fairly short order.)

His will be a legacy of Constitutional government and increased prosperity (by getting the government and its regulations out of the way) for our children and grandchildren. One of the great advantages conservatives have over liberals is all we need is a straightforward interpretation of the actual meaning of the Constitution. Liberals need penumbras and emanations and invented distortions.

All we need is someone who respects the Constitution enough to adjudicate on the basis of what it actually says. We have that in John Roberts. We can now dance by the light of the moon. For liberals, there’s a bad moon on the rise.