Dispatches from the Creation Wars

Balkin on Roberts

Jack Balkin has a commentary on John Roberts’ nomination for the court in Newsday. He predicts that Roe v Wade will remain intact, but that many state restrictions such as waiting periods, parental notification and bans on late term abortions will be upheld in court. I agree with him on that, and I would also note that this would be right in line with public opinion pretty much all the way. He also writes this very prescient paragraph:

Some conservatives hope (and some liberals fear) that Roberts will help bring back the so-called Constitution in Exile that would overturn the New Deal. That’s not going to happen. Bush’s party likes big government; it wants to grant favors to business interests through selective regulation, tax breaks and subsidies. Shifting tax burdens away from corporations and the rich, national tort reform, relaxing environmental and fair labor standards, and partial privatization of Social Security – all require federal regulatory power both robust and selective. Roberts is unlikely to get in the Republicans’ way.

Quite right. The Republicans have no interest in doing away with the vast corporate welfare and regulatory state. Sure, they’ll tinker here and there to gain an advantage for their corporate donors, just as the Democrats do, but Balkin is correct – doing such tinkering and paying such favors back requires that there be such a state of affairs in the first place. Someone like Janice Rogers Brown might be interested in tearing down the regulatory state that allows such payoffs; John Roberts isn’t at all likely to agree with her.

Comments

  1. #1 Matthew
    July 21, 2005

    I’m against corporate welfare too, but you view it as a constitutional question? How do you read it? Are you basing this off of an agreement with Madison’s view of the necessary and proper clause or what exactly?

  2. #2 Ed Brayton
    July 22, 2005

    Matthew wrote:

    I’m against corporate welfare too, but you view it as a constitutional question? How do you read it? Are you basing this off of an agreement with Madison’s view of the necessary and proper clause or what exactly?

    I think it involves many constitutional questions. For instance, almost the entire Federal regulatory state is based upon a reading of the interstate commerce clause that is so abstract that the actual text means nothing at all. The core of constitutional interpretation is the question of how and when and in what manner to abstract both the rights and authorities provided for in the Constitution and we have abstracted those authorities beyond all recognition. The Raich and Kelo decisions are compelling proof of that.

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