Yes, this is a good thing, I suppose:
The Senate seldom says it's sorry, although it is now ready to officially express its remorse over the failure to outlaw lynching in the United States.
A resolution that the chamber was likely to take up Monday voices regret for the Senate's unwillingness for years to pass a law stopping a crime that cost the lives of over 4,700 people, mostly blacks, between 1882 and 1968....
But please remember this: The same Senate that's about to pass this resolution regularly approves judges who, if they'd been on the bench at the time, would have declared such a law unconstitutional.
I'm talking about judges who agree with the reasoning the Supreme Court used when it struck down a somewhat similar law in 2000:
A sharply divided Supreme Court struck down part of a law crafted to help survivors of rape and domestic violence, ruling 5-4 yesterday that Congress overstepped its power when it gave women a right to sue their attackers.
The decision lifts a portion of the Violence Against Women Act that was meant to guarantee that victims of sexual assaults would not be dependent on the decisions of local prosecutors and could themselves sue assailants in federal court.
"Every law enacted by Congress must be based on one or more of its powers enumerated in the Constitution," Chief Justice William H. Rehnquist wrote, emphasizing that "gender-motivated crimes of violence are not, in any sense of the phrase, economic activity." He was joined by Justices Sandra Day O'Connor, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas....
Congress adopted the 1994 law after determining in four years of hearings that violent crimes against women were a pervasive problem but that states were failing to treat these offenses as seriously as other crimes. The law made rape and domestic abuse a federal crime if the assailants crossed state lines to attack their victims and provided hundreds of millions of dollars for local governments to enforce their own sexual assault laws....
But the court said that, in the end, "gender-motivated" crimes are not the kind of economic activity covered by Congress's power to regulate interstate commerce. "If Congress may regulate gender-motivated violence, it would be able to regulate murder or any other type of violence," Rehnquist wrote...
This happened despite despite Congress's attempt to address such an objection in advance:
...Martha F. Davis, ... of the NOW Legal Defense and Education Fund, said she was most concerned by the court's rejection of Congress's findings about the harmful effects that rape and domestic violence have on employment and other interstate commerce.
And lo and behold, here's newly approved federal judge William Pryor telling the Atlanta chapter of the Federalist Society (back in 2001, when he was Alabama's attorney general) that that decision, and a few others following similar logic, were just swell:
... in 1995, ... the Court defined, for the first time in a half-century, the limits of the power of Congress to regulate commerce. In United States v. Lopez, 514 U.S. 549 (1995), the Court held that the Gun-Free School Zones Act exceeded the authority of Congress to regulate commerce.... Last year the Court proved the seriousness of the Lopez decision when the Court declared unconstitutional the civil remedy for sexual assault in the Violence Against Women Act in United States v. Morrison, 120 S.Ct. 1740 (2000). The Court also unanimously avoided a further exposition of the limits of the commerce clause by holding, in Jones v. United States, 120 S.Ct. 1904 (2000), that a federal arson law did not cover the bombing of a personal residence. The Court invoked the kind of clear statement principle enunciated in Gregory rather than federalize a traditional area of state criminal law. This year, in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, the Court determined that the Corps lacked the authority to regulate intrastate waters because they provide a habitat for migratory birds.
All leading up to this boast:
In both this case and Morrison, I have been the only state attorney general to file a friend of the court brief in support of federalism.
That's the Senate's idea of a great federal judge -- someone who would have rejected an anti-lynching law because it was hostile to (let's use plain words here) states' rights.
So today's Senate vote is rather a hollow gesture.
Also, I'm suspicious of the Senate's timing. Am I crazy to think that this is an attempt to make Republicans look like the pro-black party right before Rehnquist resigns and Bush nominates Clarence Thomas to replace him as Chief Justice -- which is meant to make Democrats look like the anti-black party?
Julia at Sisyphus Shrugged has some thoughts about lynching, filibusters, and Jesse Helms.