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LAW JANUARY 2, 2011

One Side Now

The Conservative Assault on the Constitution
by Erwin Chemerinsky
Simon & Schuster, 336 pp., $18.50

The conservative assault on the Constitution began with the election of Richard Nixon, who promised to appoint Supreme Court justices to reverse Warren Court precedents of the previous fifteen years. Under the leadership of Chief Justice Warren, the Court had desegregated schools, strengthened the rights of criminal defendants, advanced the right of privacy, and limited the role of religion in public life. These decisions pleased liberals and other constituents of the Democratic Party, but displeased a great swathe of people—white Southerners, ordinary people fearful of crime, religious folk—whose votes Nixon sought. Nixon’s justices began rolling back the Warren Court precedents. This took time: the 1970s saw more Supreme Court decisions that conservatives deplored. But justices appointed by subsequent Republican presidents created a solid conservative majority.

Erwin Chemerinsky usefully tells the story. The Supreme Court had ordered the desegregation of public schools in Brown v. Board of Education, decided in 1954, but the process had stalled by the 1970s. Whites fled inner cities and set up all-white schools in suburbs; deprived of their tax base, municipalities shrank inner-city school funding. Nixon’s Supreme Court overturned legal efforts to broaden the reach of desegregation orders, so that they crossed district lines, and to equalize financing of schools. In recent years, the conservative majority has also blocked voluntary efforts by cities and states to desegregate the schools.

The conservative-dominated Court has also punched holes in the wall separating church and state. It has cut back on earlier opinions that restricted efforts to contract out governmental functions to religious organizations, while at the same time reducing the power of religious minorities to challenge general laws that burden religious practice. The Court has placed hurdles before criminal defendants seeking to argue ineffective assistance of counsel, to petition for the writ of habeas corpus, to challenge the death penalty despite evidence that it is applied in a racially biased way, to obtain the exclusion of tainted evidence, and to challenge searches under the Fourth Amendment. It has declined to recognize a right to physician-assisted suicide; it has cut back on the right to abortion recognized by Roe v. Wade; it has refused to recognize a right to government protection from harm caused by private individuals. It has not gone far enough in recognizing the rights of gays and lesbians, but it has gone too far in recognizing a right to possess guns. 

Republican presidents have participated in the assault on the Constitution—not only by appointing conservatives to the bench, but also by asserting broad executive powers culminating in the Bush administration’s claim to legally detain, torture, and eavesdrop without explicit congressional authorization and even in defiance of statute. And Republican-dominated Congresses have done their bit by reducing access to courts.

Chemerinsky’s depiction of the last forty years of the jurisprudence of the Supreme Court is basically correct, with some exceptions. The legacy of the Warren Court is more complex than he lets on. As William Stuntz has argued, the criminal procedure revolution seems to have caused legislatures to respond by enacting incredibly harsh criminal sanctions; defendants waive their newly recognized rights in return for the shorter sentences that they would have gotten in the old days. After its denunciation of segregation in Brown, the Court ordered states to take their time fashioning a remedy, which they did. And the Court’s religion opinions have been flouted by ordinary people and public officials around the country, who have found it easy to evade judicial detection.

Meanwhile, the conservatives have failed to grasp their holy grail—the overturning of Roe v. Wade—and efforts to restrict Congress’ power to engage in economic regulation petered out. Gays and lesbians made progress during the era of conservative ascendancy; the death penalty has experienced setbacks. And the Bush administration’s assertion of executive power was received unenthusiastically both by the Supreme Court and the general public.

The jurisprudential reaction to the Warren Court that Chemerinsky describes did not come out of thin air. Conservatives believe that Chemerinsky’s beloved Warren Court staged a liberal assault on the Constitution, which the Rehnquist and Roberts Courts have only begun to repair. The Warren Court sent the Constitution into exile, and only today is the Court in the process of escorting it home. These conservatives point out that the Constitution, as it was originally understood, never recognized a right to abortion, a right to use contraception, a right to attend a desegregated school. The various protections in the Bill of Rights did not apply to the states; the Warren Court invented the idea that states had to comply with the Bill of Rights, and so all the criminal protections it recognized are tainted as well. Some conservatives go further, arguing that New Deal-era opinions expanding the power of the national government to regulate the economy violate the original understanding of the Constitution. Far from assaulting the Constitution, conservative justices are rehabilitating a wounded document that has been distorted by liberal justices who have implemented their ideological preferences.

Chemerinsky will have none of it. The Constitution is too vague to have a meaningful original understanding, he says. It is written in broad strokes, by intelligent but not clairvoyant people, who disagreed among themselves and had no notion that the rules they laid down should govern the distant future. Even when a constitutional meaning might be discerned, conservative justices have violated it in order to advance their ideological goals—striking down affirmative action programs that would not have bothered the drafters of the Fourteenth Amendment, and campaign finance laws that do not violate the original understanding of the First Amendment. In Bush v. Gore, the decision that gave George W. Bush the presidency in 2000, the conservative justices temporarily suspended their bromides about judicial restraint and original understanding in order to ensure that a Republican would become president.

Chemerinsky has a point. The philosophy of original understanding has never received a persuasive theoretical defense—it owes its current prominence to an unhappy mixture of political opportunism and intellectual confusion. But when Chemerinsky tries to explain what the Court should have done—respect Warren Court precedents; invent a new right to education and equalize school financing; strengthen desegregation and promote affirmative action; recognize a new right to protection from the government; restrain executive power; banish religion from the public sphere; strengthen the rights of gays and lesbians; and increase access to the courts—he gets into trouble.

Despite his contempt for originalism, Chemerinsky makes originalist arguments himself. Wherever convenient, he cites the Constitution and the views of the founding generation. He does this because he thinks that Americans bound themselves to the Constitution so that they would not be tempted later on to persecute minorities, just as Ulysses ordered his men to bind him to the mast so that he would not succumb to the Sirens. But Ulysses did not bind future generations to the mast; constitutionalism is different from self-binding, and indeed Chemerinsky implicitly recognizes this point when he criticizes originalists for trying to bind American policy to out-dated constitutional values.

The confusion does not stop here. Chemerinsky’s claim that judges should tie Americans to the mast of the Constitution contradicts his assertion that originalism fails because the text of the Constitution is vague.

Chemerinsky also argues that the purpose of the Constitution was to protect minorities from majorities. The Warren Court honored this spirit by discovering (that is, inventing) a bevy of new constitutional rights for the civil rights era. However, another purpose of the Constitution was to establish democratic rule. These two purposes are in tension. To explain why the Court should recognize some particular right, it is not adequate to say the Constitution is anti-majoritarian, as Chemerinsky does in the course of defending his constitutional agenda. He must explain why in this instance majoritarian concerns should be set aside.

Chemerinsky criticizes conservative justices for violating precedent, but it does not bother him that the Warren Court violated precedent. He criticizes fellow liberals for relying on the general principles underlying constitutional provisions, correctly noting that they can be used to justify anything—but he does the same thing himself (“the Court should be guided by the underlying goal of creating a more perfect union, of upholding the decency of every individual, and of advancing liberty and equality in society,” among other hokum). Sometimes he argues for particular outcomes by relying on existing doctrine; at other times he argues that existing doctrine is wrong and should be revised. He criticizes conservatives for believing that judges can decide cases in a value-free way, but his own arguments appeal to transcendent legal norms like precedent and legal text.

Or he just makes unsupported assertions. Consider Chemerinsky’s defense of Roe v. Wade. Women have a compelling interest in their reproductive freedom, he says, so there must be a right to an abortion. He acknowledges that other people might care about fetal life, but he believes the state’s interest in fetal life kicks in only after viability. He argues that the reason that viability is the dividing line is that any view that fetal life matters before viability must be religious, and religious views do not count in politics. But in fact some secular people do care about fetal life before viability, and the vast majority of Americans are religious and allow their religious values to influence their views on the law—how could they not? Chemerinsky shares the well-loved conceit among secular intellectuals that only non-religious values may inform public debate. It is a philosopher’s fantasy that has never been true, in this country or in any other.

Finally, Chemerinsky argues that all the conservative case outcomes harm people without providing any benefits. The exclusionary rule and other protections for criminal defendants do not increase crime. Desegregation always improves educational outcomes. Enhanced executive power does not increase safety. But Chemerinsky cites the social science selectively. In fact, for all the issues he discusses, the social science is ambiguous (as he notes when he shoots down the incautious arguments of conservatives). The inconsistencies in Chemerinsky’s argument can be traced to a larger problem. He lacks a coherent theoretical stance on constitutional interpretation, one that could discipline his various claims based on constitutional text, precedent, principle, and policy. He takes a sort of lawyer’s approach that involves throwing everything at a target in the hope that something will stick.

Meanwhile Chemerinsky ignores the major challenges to Warren Court-style jurisprudence. One is whether the Court can lead, as the Warren Court assumed, or is ultimately constrained by popular opinion operating through democratic institutions. Many scholars have argued that the Court usually hews to public opinion because it fears that it will lose public support if it does not; when it does depart from public opinion, it whips up political maelstroms. Chemerinsky ignores this large literature even while inadvertently reproducing its own pessimistic conclusions about the potential of Court-led social change. For Chemerinsky claims that the conservative assault on the Constitution resulted from a political backlash to the Warren Court. He says nothing about what this backlash implies about the political viability of Warren Court-style jurisprudence in the first place.

The other big debate concerns the tension between judicial review and democracy. Chemerinsky largely ignores recent writing by liberals and conservatives who fret that when courts too freely overturn legislation, they stifle public deliberation, infantilize the people, and play a legislative role to which they are not suited. These writings have not won a judicial constituency, but they do express a general uneasiness with “living constitution”-style arguments that courts should constrain democratic decisionmaking on the basis of public values that change with the times. Good arguments are not lacking on behalf of this variety of judicial decision-making. Indeed, it is all that is left standing if originalism is wrong. But Chemerinsky offers no new arguments to advance his cause. He simply equates constitutional evolution with (more or less) the platform of the Democratic Party.

Like a good brief, Chemerinsky’s book is brisk and impassioned, and he enlivens the argument with stories of his own clients’ entanglement in constitutional litigation. He has good fun with fatuous conservative rhetoric and the political blather of Republican presidents, and he makes telling points about the psychological burdens of “neutral” judicial interpretation. But he skimps on real scholarship. Instead he caricatures those he disagrees with, presenting cartoon versions of their arguments that can be easily dismissed.

Chemerinsky never addresses the obvious possibility that the liberal justices whom he champions are as ideologically motivated as the conservative justices whom he deplores, despite a massive political science literature that provides considerable evidence of outcome-oriented voting by all justices on the Supreme Court. Disagreements among conservatives, including the conservative justices, are rarely mentioned, as are their agreements with the liberal justices in a range of business cases; attention to these fissures and convergences would undermine his depiction of the conservatives as undifferentiated figures in a wicked political monolith. His clients are noble; the conservatives are evil; his fellow lawyers heroic. Chemerinsky dips into the advocate’s bag of tricks too many times: he seems like the stereotypical lawyer who will say anything to win his case and does not care about the truth. The artifice of his presentation robs his argument of its force.

Eric Posner is a professor at the University of Chicago Law School.

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