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Saturday, August 20, 2005

Brave Old World 

The September Harper's contains, among other treats, a long and fascinating article by Cass R. Sunstein, "Fighting for the Supreme Court: How Right-Wing Judges Are Transforming the Constitution." (To read the entire text you will have to visit your newsstand and purchase a copy, because the article is not, alas, online.) Sunstein charts the ascendency of "movement judges," who disdain traditional conservative principles such as judicial restraint and respect for the political will of the people in favor of an explicitly retro political agenda. These new activists, who claim to be committed to interpreting the Constitution according to the views of those who ratified the document, describe themselves as "originalists." Sunstein suggests a more accurate term: judicial fundamentalists.
Fundamentalists are entirely aware that current constitutional law does not reflect their own approach. They know that for many decades the Court has not been willing to freeze the Constitution in the mold of the eighteenth and nineteenth centuries. For this reason fundamentalists have radical inclinations; they seek to make large-scale changes in constitutional law. Some fundamentalists, like Justice Scalia, believe in respecting precedent and hence do not want to make all these changes at once; but they hope to make them sooner rather than later. Other fundamentalists, including Justice Clarence Thomas, are entirely willing to abandon precedent in order to return to the original understanding.
What sort of success have the movement activists enjoyed so far? "In terms of sheer numbers of invalidations of acts of Congress," Sunstein writes, "the Rehnquist Court qualifies as the all-time champion":
  • The Rehnquist Court has thrown most affirmative-action programs into extremely serious doubt, suggesting that public employers will rarely be able to operate such programs and that affirmative action will be acceptable only in narrow circumstances.

  • The Rehnquist Court has used the First Amendment to invalidate many forms of campaign-finance legislation, with Justices Scalia and Thomas suggesting that they would strike down almost all legislation limiting campaign contributions and expenditures.

  • For the first time since the New Deal, the Rehnquist Court has struck down congressional enactments under the Commerce Clause. As a result of the Court's invalidation of the Violence Against Women Act, a large number of laws have been thrown into constitutional doubt. Several environmental statutes, including the Endangered Species Act, are in trouble.

  • Departing from its own precedents, the Rehnquist Court has sharply limited congressional authority to enforce the Fourteenth Amendment. In the process, the Court has struck down key provisions of the Americans with Disabilities Act, the Religious Freedom Restoration Act, and the Violence Against Women Act -- all of which received overwhelming bipartisan support in Congress.

  • The Rehnquist Court has used the idea of state sovereign immunity to strike down a number of congressional enactments, including parts of the Age Discrimination in Employment Act and the Americans with Disabilities Act.

  • For the first time in the nation's history, the Rehnquist Court has ruled that Congress lacks the power to give citizens and taxpayers the right to sue to ensure enforcement of environmental laws.
Even so, Sunstein argues, the Rehnquist Court has not been "truly radical." But over the last two decades the federal courts -- following the example of political discourse in general -- have taken a hard swing to the right. "The center has become the left. The right is now the center. The left no longer exists." With two or more appointments in the Scalia/Thomas mold, Bush might be able to push the court in the "immoderate direction" of fundamentalism, and the constitutional revolution would be underway. And if the Constitution were to be interpreted according to the specific views of its 18th-century architects, what might we expect to happen?
  • Discrimination on the basis of sex would become entirely acceptable. If a state chose to forbid women to be lawyers or doctors or engineers, the Constitution would not stand in the way. The national government could certainly discriminate against women. If it wanted to ban women from the U.S. Civil Service, or to restrict them to clerical positions, the Constitution would not be offended.

  • The national government would be permitted to discriminate on the basis of race. The Equal Protection Clause of the Fourteenth Amendment is the Constitution's prohibition on racial discrimination -- and by its clear language, it applies only to state governments, not to the national one. Honest fundamentalists have to admit that according to their method, the national government can segregate the armed forces, the Washington, D.C., public schools, or anything it chooses. In face, the national government could exclude African Americans, Hispanics, Asian Americans, whenever it liked.

  • State governments would probably be permitted to impose racial segregation. As a matter of history, the Fourteenth Amendment was not understood to ban segregation on the basis of race. Of course, the Supreme Court struck down racial segregation in its 1954 decision in Brown v. Board of Education. But this decision was probably wrong on fundamentalist grounds.

  • State governments would be permitted to impose poll taxes on state and local elections; they could also violate the one-person, one-vote principle. On fundamentalist grounds, these interferences with the right to vote, and many more, would be entirely acceptable. In fact, state governments could do a great deal to give some people more political power than others. According to most fundamentalists, there simply is no "right to vote."

  • The entire Bill of Rights might apply only to national government, not to the states. Very possibly, states could censor speech of which they disapproved, impose cruel and unusual punishment, or search people's homes without a warrant. There is a reasonable argument that on fundamentalist grounds, the Court has been wrong to read the Fourteenth Amendment as applying the Bill of Rights to state governments.

  • States might well be permitted to establish official churches. Justice Clarence Thomas has specifically argued that they can.

  • The Constitution would provide much less protection to free speech than it now does. Some historians have suggested that on the original understanding, the federal government could punish speech that it deemed dangerous or unacceptable, so long as it did not ban such speech in advance.

  • Compulsory sterilization of criminals would not offend the Constitution. The government could ban contraceptives or sodomy. There would be no right of privacy . . . .
Much of the time, the emphasis on "original understanding" turns out to be a sham -- a rhetorical smoke screen for an aggressive political agenda that would never survive the scrutiny of the political process. Writing in the midst of World War II, Learned Hand, the great court of appeals judge, wrote that the "spirit of liberty is the spirit which is not too sure that it is right." Claiming their own neutrality, fundamentalists are all too willing to engage in partisan politics under the guise of constitutional law; in so doing, they defy liberty's spirit.

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