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Thursday, March 20, 2003
Steven Reinhardt, the great liberal judge of the Ninth Circuit Court of Appeals, authored a 2-1 majority opinion today that holds that any federal statute that bars possession of non-commercial child pornography for personal use is unconstitutional under the Commerce Clause (that is the grant of power in the Constitution to Congress to regulate interstate commerce). I don't really feel strongly one way or the other about the correct interpretation of the Commerce Clause, or more accurately, perhaps I feel strongly in both directions. (On the one hand, I do think that 21st Century America demands a much larger federal government to solve national problems than 18th Century America did, and enforcing a strictly restrictive Commerce Clause would prevent the federal government from regulating national problems. On the other hand, some attempts to expand the reach of the Commerce Clause, such as the case where the Supreme Court held that a farmer's growing of wheat for his own personal consumption could be restricted by the federal government, on the ground that such conduct "affects" commerce, seem to me to be completely contrived and indefensible.)

But you can't help but smirk at what Reinhardt has done. Chief Justice Rehnquist and other conservatives have made it a pet project to reinvigorate the Commerce Clause as a substantive limit on Congress' powers. (While they haven't revisited the silly FDR-era farming decision, Wickard v. Filburn, they have ruled that Congress lacks the power to regulate gun possession around schools and violence against women, holding that these are purely local issues.) It's easy to see why they have done this-- an effective Commerce Clause can stand as a barrier to effective federal regulation in such areas as civil and women's rights, firearms, and other areas where liberals might want to impose regulations. What Reinhardt did today is point out that the same narrow interpretation of the Commerce Clause can stand as a barrier to effective federal regulation in areas where conservatives might support federal regulations as well. (I am sure John Ashcroft is fuming at this ruling.) At the risk of making a silly pun out of the Wickard case, you reap what you sow.

I might note there are some good practical reasons for Reinhardt's decision. The international market for kiddie-porn is a huge problem, and those who traffic in it deserve the harshest punishments. But some Wal-Mart one-hour photo clerks have turned into deputies of the government, turning over relatively innocent photos of nude family activities, that were not taken with or intended to be used for any sexual purpose, to the authorities. If the government cannot prove that the particular sort of child pornography that is the subject of the prosecution is actually connected to the interstate and international trade, the case for federal regulation is relatively weak. (Remember, federal regulation means mandatory prison sentences, whereas state regulation might just mean mandatory counseling for the families.) Reinhardt's position is backed up by the fact that, especially with respect to issues like child porn (where the statutes always pass the Legislature 99-1), giddy lawmakers who want to show how tough they are against some of the most vile people in society do not tend to make proper distinctions, or indeed any distinctions, between the most vile and the merely misguided. While a local-interstate distinction might not approximate this divide perfectly, it will at least be a reasonable fit, separating the folks who really are part of the international child porn trade from those who aren't.

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