What's really at stake regarding Supreme Court Justice selection-Part 4

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Here is Part 4 of the speech that I have been posting each day. Have you figured out who the author is?

"While many people, many, many people, smart, educated people, assume that the personal privacy protections in the Constitution are inviolable and will always be in existence, the Constitution in Exile crowd doesn't. They believe not just that privacy rights should be diminished; its members believe that there should be none. I repeat that -- no general right of privacy whatsoever in the Constitution.

So what does that mean? First, the government, whether state, federal, or local, could forbid couples, as they had in the past, from using contraception.

The government could also constitutionally impose restrictions on the number of children you could have. Such restrictions exist in other countries; and God only knows what happens here in two, five, 10, 20, 30 years. This may seem an unlikely outcome; but remember, this is the same crew that brought you Schiavo.

Moreover, the next 20 years will be marked by great developments in medical and informational technology. Will individuals be able to take advantage of stem cell research with its enormous promise? Or will legislators enact their moral opposition, and will a conservative Supreme Court refuse to step in to protect those individual rights?

Will the government have unlimited power to monitor individuals -- what they say, where they go, whom they meet with, who they associate with? Will originalist judges tell us their historical investigations of the Constitution convince them the Framers would have been comfortable with this? Will our justices protect our medical records, information regarding genetic propensities for diseases, financial data?

This and more is at stake over privacy. It goes well beyond Roe v. Wade.

And for as long as the Radical Right has been trying to reverse our constitutional understanding of privacy, they have also been trying to reverse a consensus that no one is talking much about -- except some of you in this room -- a consensus going back to the days of the Great Depression that government can act as a shield to protect Americans from the abuse of powerful interests.

Can we protect the air we breathe? Can we keep arsenic out of our drinking water? Can we keep tobacco companies from targeting our kids? Can we establish minimum national standards to provide equal opportunity and human dignity for society's most vulnerable members -- our elderly, our disabled, women victimized by violence? That is all at stake.

There are instances when our democracy has to step in to alleviate inequities; to recognize human dignity and to lift people up by ensuring equal opportunity. Others, however, disagree with this consensus.

Michael Greve of the American Enterprise Institute puts it straightforwardly: "I think what is really needed here is a fundamental intellectual assault on the entire New Deal edifice. We want to withdraw judicial support for the entire modern welfare state." That's what this is about. This is not a debate about the solvency of Social Security, for example. It's about the legitimacy of Social Security.

Listen to the debates going on underneath these constitutional issues. It's about devolution of government. It's about withdrawing, withdrawing as a matter of law, the right of the federal government to do much of anything other than provide the national defense.

And lest you think they don't mean it, I'm the guy that wrote the crime bill, 100,000 new cops on the streets. The other side votes against it, even though they love it. Not a joke. They love it. They can't say a negative thing about it. But they vote against it because it is contrary to the paradigm of devolution of government -- the federal government should not be involved in aiding local government. That's the legislative way they're trying to change the court judicially.

This is the agenda, folks. And the Court already has such acolytes. Justice Thomas has voted to strike down over 65 percent of the federal laws that have been reviewed by the Court. What would happen if we had five Justice Thomases? Thousands of laws -- environmental, criminal, civil rights -- could be declared unconstitutional.

Justice Thomas wrote in one of his opinions recently, "If anything, the wrong turn was the Court's dramatic departure in the 1930s." What I describe as a "healthy consensus," Judge Thomas and others call "a wrong turn."

What's at risk if this view of the Constitution ever gained full ascendancy? The Clean Air Act, the Safe Drinking Water Act, the Clean Water Act, and the Endangered Species Act, all rely on the Congress's Commerce Clause power.

The Radical Right is determined to elevate private property at the expense of protecting our safety, well-being, and communities. Under their reading of the appropriate language in the Constitution -- the Takings Clause of the Fifth Amendment -- the only way to keep a chemical plant out of your neighborhood would be to pay off the chemical plant to not build because you are taking their property.

Our bedrock civil rights laws are also based on post-1937 constitutional interpretations.

There also could be no federal minimum wage and no maximum hour laws. We wouldn't be having a debate about increasing the minimum wage because there wouldn't be one.

And lest you think this is hyperbole, look at what the debates taking place in local elections are about. Look at the debates that are taking place in the chamber in which I work. I was joking with four of my new colleagues as we were having coffee and doughnuts before going into a committee meeting. I said, "I have a great idea how to deal with the plight of the elderly." And they all looked and said, well, what you got in mind? It's a true story. I won't name the four Senators. And I said, "You know, we should pass a law mandating that every employer has to take six or seven percent of their revenues and put it into a fund and mandate that every single American, no matter where they work, has to take a similar amount and put it into a fund."

One of the new Senators, I swear to God, said, "That's confiscatory." One of the brighter ones said, "You're not getting me to go there, Joe." Let me ask you this rhetorical question. Honest to God, take off your centrist or moderate or liberal, wherever you fall in the spectrum, hat. Do you believe if we did not have a Social Security law now, do you believe one could be passed today in the House of Representatives? Honest to God, what do you think? I don't think there's any possibility.

So this is what's at stake, folks. This is the proportion of the potential consequences of the turning of the Court.

Under something called the nondelegation doctrine, the Court may have to strike down the Occupational Health and Safety Administration (OSHA), which is tasked to make sure American workers are safe.

The problem under the nondelegation doctrine is that many of today's modern federal agencies are just like OSHA. They exercise broad rule-making powers and enforcement powers that are unconstitutional according to many.

This is a doctrine -- the nondelegation doctrine -- that wisely gave way a long time ago to the reality of our complex modern age. Congress simply can't legislate every particular rule in detail, so it empowers agencies to do so, with Congress retaining the power to come in and oversee what that agency is doing. This system makes sense. It has some abuses that can be corrected through the legislative process, but it is at the very heart of what allows our government to function in this complicated society we live in.

And it's not only OSHA that is at risk if the nondelegation doctrine and other doctrines favored by the Constitution in Exile crowd -- such as a requirement that agency members must be removable by the President at will -- are accepted by the Supreme Court. The Federal Communications Commission, the Federal Reserve Board, the Securities & Exchange Commission, just to name a few, would hang in the balance. And there would result a fundamental shift in power from the powerful to the extremely powerful.

So what's the common theme here? It is to prevent, in my view, "We the People" from being able to protect ourselves from abuse at the hands of society's already powerful and growing even more powerful. The Radical Right's agenda would give enormous power to the already powerful and eliminate the ability of the less powerful to use the democratic branches of government to rebalance the playing field.

But why are the courts so important to the Radical Right? And they are. In 1988 a Reagan Justice Department document stated, "There are few factors that are more critical to determining the course of the nation and yet are more often overlooked than the values and philosophies of the men and women who populate the third co-equal branch of the government, the federal judiciary." If there was ever anything the Reagan Administration wrote that was accurate, that is it."

Tomorrow I will post the final portion of the speech and name the author. Stay tuned! In my view this is one of the most important speeches of our time. I hope you have been reading it each day.