Stephen Breyer is a disgrace

From a fawning profile of Justice Stephen Breyer in The New Yorker:

In his book, he cites several recent Supreme Court opinions to illustrate his thesis. In the 2003 case McConnell v. Federal Election Commission, the Court had to assess the constitutionality of the 2002 McCain-Feingold campaign-finance law, and consider whether caps on campaign contributions, and restrictions on advertising, constituted infringements on the right to free speech, which is guaranteed by the First Amendment. Breyer (along with a majority of his colleagues) upheld most of the law’s provisions.

“To understand the First Amendment as seeking in significant part to protect active liberty, ‘participatory self-government,’ is to understand it as protecting more than the individual’s modern freedom,” he writes. “It is to understand the Amendment as seeking to facilitate a conversation among ordinary citizens that will encourage their informed participation in the electoral process.”

This is just mind-boggling. According to this non-logic, the Constitution essentially means whatever Breyer wants it to mean. The first amendment doesn't really mean what is actually says, instead it was somehow meant to "facilitate a conversation among ordinary citizens that will encourage their informed participation in the electoral process." Nevermind that there is absolutely no evidence to support this theory. Honestly, with this kind of attitude what's the point of even having a Constitution?

To review, this is what the first amendment actually says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Got that? "Congress shall make no law...abridging the freedom of speech, or of the press..." It's really simple. Now, given that CFR legislation restricts speech, it is blatantly unconstitutional. Unless of course you are Stephen Breyer, our unelected philosopher-king.

Moving on:

For more than fifty years, starting with the New Deal, the Supreme Court gave Congress considerable leeway to pass laws, under the authority granted to it by the Constitution to regulate interstate commerce. In the nineteen-nineties, however, the Court—led by the conservative Justices Rehnquist, Scalia, and Thomas—began to challenge congressional statutes in an effort to limit the power of the federal government.

In 1995, in United States v. Lopez, a five-Justice majority ruled that Congress lacked the authority to pass a federal law banning the possession of guns in a school zone. On similar grounds, in 2000, the Court struck down, in another five-to-four vote, a provision of the federal Violence Against Women Act which gave victims of sex-related violence the right to sue their attackers in federal court.

Breyer dissented in both cases, arguing, in his opinion in Lopez, that “the statute falls well within the scope of the commerce power as this Court has understood that power over the last half-century.” The cases exemplify the conflict between originalism and the more pragmatic approach advocated by Breyer, and the outcome of this conflict has enormous implications for American government.

Scalia and Thomas would like to see the federal government’s role in regulating citizens’ lives reduced to the modest one that they believe the framers envisaged. As Thomas put it in his concurring opinion in Lopez, “The Founding Fathers confirmed that most areas of life (even many matters that would have substantial effects on commerce) would remain outside the reach of the Federal Government.” Breyer believes that, whenever possible, the Court should stay out of Congress’s way.

Ah, yes, the interstate commerce clause. For those of you who don't know, the interstate commerce clause says the following:

The Congress shall have Power...To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.

Now, to a non-Supreme Court Justice, that's pretty straightforward. Congress can regulate commerce between states. To Stephen Breyer and other liberals, however, that's basically a carte blanche for Congress to do anything. Think about it. Kids go to school to learn so they can be productive citizens and engage in commerce -- therefore Congress can pass laws governing schools. Women engage in interstate commerce and so if they are beaten that gives Congress authority to pass related laws. The possibilities are endless.

And as for Breyer's belief that "whenever possible, the Court should stay out of Congress’s way" -- are you kidding me? In case Breyer has forgotten, the Supreme Court was conceived in large part as a check on Congress's power. Getting in Congress's way from passing unconstitutional legislation is the whole point!

You know, I don't think it's asking for a lot to want a Supreme Court composed of justices who base their decisions on what the Constitution actually says than what they wish it said.