August 27, 2008

As Tom Woods and I demonstrate in our new book, Who Killed the Constitution?  The Fate of American Liberty from World War I to George W. Bush, there is a bipartisan consensus in all three branches of the federal government that the U.S. Government can do whatever it wants.

Joe Biden is one of the chief proponents of this view.

It was Biden, remember, who gave us the Violence Against Women Act of 1994. Among other things, that law created a federal civil claim for rape. The Supreme Court struck that provision down in the 2000 case of United States v. Morrison. There, then-Chief Justice William Rehnquist noted that the Commerce Clause did not give Congress power to penalize rape.

Note what Biden had done in the Violence Against Women Act: he had followed the decades-old tendency of federal officials to grab more power. While the Constitution reserved most power to the states, Congress has found a ready mechanism for getting around that in the Commerce Clause.

The Commerce Clause says, “€œThe Congress shall have Power … to regulate Commerce … among the several States.”€ The Supreme Court over the last 70 years has let Congress have very wide discretion (too much discretion) in deciding what “€œCommerce … among the several States”€ is. Finally, in United States v. Morrison, the Court decided what was not interstate commerce:  rape wasn”€™t.

Joe Biden cannot actually have believed that rape was commerce, let alone interstate commerce. What was really going on in the adoption of the Violence Against Women Act was that Sen. Biden was demonstrating his contempt for the Constitution’s limitations on the powers of Congress. The Tenth Amendment, which reserves to the states the powers not granted to Congress by the Constitution, is a dead letter to Biden.

Biden also has a very peculiar understanding of the Ninth Amendment. In the 1987 hearings on the confirmation of Judge Robert Bork to the Supreme Court, Biden got into a dispute with the nominee about that amendment. Famously, Bork said that he could not give it any content. It was, said Bork, an “€œinkblot”€ and should be treated as if it did not exist.

Biden had fun with Bork over this. How could the ballyhooed advocate of originalism say that one of James Madison’s amendments had no meaning”€”especially when the record of the ratification debates made clear that the point of the Ninth Amendment was to ensure that the federal government would not be free to trample on unenumerated rights?

Bork was wrong. But so was Biden.

How? While Bork would have ignored the Ninth Amendment completely, Biden would have done something even worse.

Since the early 1960s, some anti-constitutionalists on the Supreme Court have pointed to the Ninth Amendment in justification of their judicial legislation. While the Ninth Amendment, like the rest of the Bill of Rights, was intended to limit federal power, these judges have used that amendment to justify their increasingly innovative vetoes of state policies”€”including policies related to sex”€”that they disliked.

In other words, certain justices over the past half-century have converted an amendment that was intended to limit federal power into a source of federal power. They have pointed to it in justification of their decisions invalidating myriad state laws.

Biden approves of this behavior from federal judges. In fact, he has been quite proud of his role in defeating Bork’s nomination, and his boasts in this regard often center on Bork’s attitude toward the Court’s historically unjustified sex-related rulings.

Had Bork been on the Court, Biden says, the Court’s rulings in that general area”€”the area of contraception, sodomy, and abortion”€”might not have come out as they did.

In other words, Biden claims that had Bork been confirmed, control over those subjects would have remained in state legislatures, where the Fournding Fathers left it. Let us accept Biden’s analysis.

While Barack Obama is a newcomer to federal politics, Joe Biden has been a member of the Senate Judiciary Committee for a long time. He has a record. Because of that record, people interested in the fate of constitutional government in America should not be pleased with the prospect of a Biden vice presidency.


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