Molly Ivins July 1

AUSTIN — More reasons not to write fiction:

In late May at the annual banquet of United Jewish Appeal, one of the world's largest charities, the Humanitarian of the Year Award was presented by Henry Kissinger to Rupert Murdoch. (This courtesy of The Nation magazine.)

Rep. Bud Schuster, the noted Pennsylvania porkmeister, has an understandably close relationship with lobbyist Ann Eppard, who worked as Schuster's aide for more than 20 years. Schuster has done a long string of favors for Eppard's high-dollar clients, but perhaps none so startling as this gem:

Last year, Eppard lobbied Schuster on behalf of Carnival Cruise Lines for his support of a "technical amendment" tacked on to the Coast Guard reauthorization bill that would have protected cruise companies from lawsuits by women raped aboard their ships unless the women had "also suffered substantial physical injury." (This courtesy of Washington Monthly magazine.)

Campaign financing reform took another hit recently when House Republican leaders persuaded their reform-minded freshmen to stop cooperating with Democrats on a bill to prohibit soft money. Besides the soft-money ban, the freshman plan would have required a group spending more than $25,000 on advertisements that use a candidate's name or picture to file disclosure reports.

The sources of such "issues advertisements" (having nothing to do with candidates, of course) and independent spending in the '96 campaign were frequently anonymous. The freshmen reported "enormous pressure" from the Christian Coalition and National Right to Life on this point. The groups argued that "it would limit their free speech rights." (This courtesy of The New York Times.)

Now, if all that has got you feeling sufficiently cynical, let's take a look at what the Supreme Court did to the country last week.

The basic themes of the Supremes this past session were 1) their own power and 2) states' rights.

Due to some truly atrocious reporting by the media ("Supreme Court Repeals Religious Freedom Act"), some in the religious community promptly became hysterical over a decision that had nothing to do with religious freedom. That decision was about turf. The court was explicitly saying to Congress, "Constitutional interpretation is our turf; back off, bub." In fact, there is every indication that this court is far more protective of religion than previous courts. In a separate decision, the Supremes held that a public-school teacher may provide remedial education in parochial schools — a decision that could be the wedge for school vouchers in that it crosses the line of spending public money on private schools.

Note that the decision invalidating the Religious Freedom Restoration Act (one of those PR monikers of which congressional Republicans are so fond) not only reasserted the court's right to decide the standards to be used in constitutional interpretation but also bolstered states' rights.

Justice Anthony Kennedy said the act was a congressional intrusion into the states' traditional prerogatives and general authority to regulate for the health and welfare of their residents. So if Boerne, Texas, wants to set up a historical preservation district, it can do so.

The court's decision on the Communications Decency Act (another PR moniker) was likewise a two-fer. It also overturned a bill that Congress had passed overwhelmingly and that its members knew at the time was unconstitutional. It was just one of those dumb things politicians do right before elections: "We've saved your children from smut on the Internet." So, the court was not only reclaiming turf in this decision but also striking a mighty strong blow for freedom of speech. Although the decision was officially 7-2, the dissents were only partial dissents, and freedom of speech was a big winner in all the written decisions.

The court not only reclaimed turf from Congress this session but also put some judicial restraints on executive power with two decisions affecting the Clintons personally. The first, of course, was the decision to allow Paula Jones to proceed with her suit against Bill Clinton; the second ordered Hillary Rodham Clinton to turn over notes made by a government lawyer after her grand jury appearance to independent counsel Kenneth Starr.

The general message from all these decisions is: There are three branches in this government, and don't y'all forget it.

The emphasis on states' rights was clearest in the partial repeal of the Brady law, which is also the most constitutionally questionable of the session. This 5-4 decision (written by Antonin Scalia, arguably the most right-wing of the justices) holds that Congress' power to regulate commerce, including commerce in guns, does not allow it to enlist local law enforcement to carry out background checks on those applying to buy handguns.

Even Scalia was forced to admit that there's nothing in the Constitution that forbids this, but he somehow found it implicit in "the structure of the Constitution." I think that used to be called the "penumbra" in the days when liberal justices were finding things others couldn't in the Constitution. Let's just say this was not a strict-constructionist decision.

Alexander Hamilton and James Madison both wrote about the feds using state law-enforcement folk to enforce federal laws. Justice John Paul Stevens had a good dissent, pointing to several such usages. But Scalia, undeterred by law and fact, wanted to reinforce states' rights, bringing up the interesting contention that the South has finally won the Civil War. (You recall that the legal basis for the war was the South's claim of pre-eminent states' rights.)

My problem with states' rights as a constitutional doctrine is that I am intimately acquainted with state legislatures, especially that of Texas. And in the words of the old hymn, it causes me to tremble, tremble, tremble.

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Molly Ivins is a columnist for the Fort Worth Star-Telegram.

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