A Key Question for Judge Souter

`JUDGE Souter, would you share with us your understanding of Article I, Section 8 of the Constitution?'' This is certainly not a made-for-TV question. It is deadly boring compared to the ``hot'' topic of the moment - abortion. Moreover, today's special interest groups have not rallied around one or another meaning of the Commerce Clause.

Conventional wisdom is dead wrong in all of this. In the constitutional, political, and economic scheme of things, few questions are more important than an Article I, Section 8 Commerce Clause one. It is this question the Senate Judiciary Committee should put to President Bush's Supreme Court nominee, David Souter.

Simply stated, Article I grants specific powers to Congress. Absent such clear authorization, Congress is without the legal power to act. Thus, for example, Congress cannot grant pardons (an executive function) or adjudicate cases (a judicial function). It can, however, collect taxes, declare war, and create lower courts and post offices, among other things. History has shown that the lion's share of its constitutional power lies with its right to ``regulate commerce ... among the several states.''

By pressing Judge Souter for his views on the Commerce Clause, senators could learn much about the unknown jurist's grasp of constitutional history, the role of the courts, the power of Congress, the rights of states, and the deference given to precedent. In fact, this inquiry could even reveal something about Souter's views on Congress's power to legislate abortion, in restrictive or permissive ways.

When interpreted broadly, the power to ``regulate commerce'' means that Congress has almost unfettered authority to manage everything from business practices to civil rights. Thus, it can establish minimum wages and dictate labor policies for state and local employees. Similarly, Congress can tap its commerce powers to structure state utility rates. It can regulate the amount of wheat produced by farmers for their own consumption. And with the blessing of the Warren Court, Congress invoked its commerce powers to combat race discrimination in public accommodations.

Today, there is virtually no limit on Congress' authority to regulate many state matters so long as national lawmakers paint with the brush of the Commerce Clause. But the history of the clause has fluctuated. In 1824, Chief Justice John Marshall gave the clause a very expansive reading, one that was restricted in 1895 and confined even more in between 1918 and 1936.

Ever since the FDR New Deal court, however, a majority of the justices has typically granted Congress free rein in passing many progressive laws.

But with Justice William Brennan's retirement, the Commerce Clause battle front could change considerably. Brennan was the crucial vote in a string of recent 5-4 cases further extending Congress' lawmaking powers. In one of those rulings, a 1985 case challenging Congress's power to set minimum-wage and overtime laws affecting state employees, then Justice William Rehnquist took pointed exception. The conservative jurist, who now sits as chief justice, predicted that in time his view would ``again command the support of a majority of [the] Court.''

Rehnquist's prediction may soon be realized since Justices Antonin Scalia, Anthony Kennedy, and Sandra Day O'Connor are likely to form a conservative phalanx hostile to any generous interpretation of Congress's lawmaking powers under the Commerce Clause. That leaves the tie-breaking vote to David Souter.

Would Judge Souter break with the Brennan liberal precedents? How deferential does he think the court should be when it comes to Congress's Article I powers? Conversely, how much constitutional latitude would he give the states in bucking the will of national lawmakers?

As with other topical issues, the New Hampshire judge's record is more obscure than revealing. What little we do know comes partly from some April 13, 1990, statements he made in a criminal sentencing case. During oral argument in the state Supreme Court, Justice Souter pushed counsel squarely to identify the state constitutional source of government authority. Said Souter, ``The question is, where do they get the power....?''

Of course, it is senseless to make too much of such fragments of a man's thought. Still, these statements do reveal that Judge Souter does have something to say on the general matter.

Liberals nourished on the constitutional milk of the Warren Court forget that over the long historical haul, Congress, not the court, has been their truest ally. Since at least the turn of the century, liberals have fought to keep the court off Congress's back in matters of economy, environment, and the general welfare.

It would be a nightmare world for liberals if a Rehnquist majority denied them redress in both the Supreme Court and Congress. Similarly, such threats to the edifice of large central government, combined with the corresponding revival of states rights, would send ideological conservatives dancing into the streets.

A showdown could come soon. For example, the Freedom of Choice Act, with some 130 co-sponsors in the House and 25 in the Senate, seeks to codify the abortion law of the controversial 1973 Roe v. Wade precedent.

Question: Does Congress have the authority under Article I (or the 14th Amendment) to impose any national abortion law on the states? Of course, the same could be asked of Congress's powers to pass a variety of other laws affecting state powers.

Congress has a vested interest in pressing Judge Souter to speak long and hard on this constitutional principle. If the senators can see beyond the abortion issue, perhaps they will ask the fundamental question.

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