The Conservative Assault on the Constitutionby Erwin Chemerinsky
Over the last few decades, the Supreme Court and the federal appellate courts have undergone a dramatic shift to the right, the result of a determined effort by right-wing lawmakers and presidents to reinterpret the Constitution by reshaping the judiciary. Conservative activist justices have narrowed the scope of the Constitution, denying its protections to… See more details below
Over the last few decades, the Supreme Court and the federal appellate courts have undergone a dramatic shift to the right, the result of a determined effort by right-wing lawmakers and presidents to reinterpret the Constitution by reshaping the judiciary. Conservative activist justices have narrowed the scope of the Constitution, denying its protections to millions of Americans, exactly as the lawmakers who appointed and confirmed these jurists intended. Basic long-standing principles of constitutional law have been overturned by the Rehnquist and Roberts courts. As distinguished law professor and constitutional expert Erwin Chemerinsky demonstrates in this invaluable book, these changes affect the lives of every American.
As a result of political pressure from conservatives and a series of Supreme Court decisions, our public schools are increasingly separate and unequal, to the great disadvantage of poor and minority students. Right-wing politicians and justices are dismantling the wall separating church and state, allowing ever greater government support for religion. With the blessing of the Supreme Court, absurdly harsh sentences are being handed down to criminal defendants, such as life sentences for shoplifting and other petty offenses. Even in death penalty cases, defendants are being denied the right to competent counsel at trial, and as a result innocent people have been convicted and sentenced to death. Right-wing politicians complain that government is too big and intrusive while at the same time they are only too happy to insert the government into the most intimate aspects of the private lives of citizens when doing so conforms to conservative morality. Conservative activist judges say that the Constitution gives people an inherent right to own firearms but not to make their own medical decisions. In some states it is easier to buy an assault rifle than to obtain an abortion.
Nowhere has the conservative assault on the Constitution been more visible or more successful than in redefining the role of the president. From Richard Nixon to George W. Bush, conservatives have sought to significantly increase presidential power. The result in recent years has been unprecedented abuses, including indefinite detentions, illegal surveillance, and torture of innocent people.
Finally, access to the courts is being restricted by new rulings that deny legal protections to ordinary Americans. Fewer lawsuits alleging discrimination in employment are heard; fewer people are able to sue corporations or governments for injuries they have suffered; and even when these cases do go to trial, new restrictions limit damages that plaintiffs can collect.
The first step in reclaiming the protections of the Constitution, says Chemerinsky, is to recognize that right-wing justices are imposing their personal prejudices, not making neutral decisions about the scope of the Constitution, as they claim, or following the "original meaning" of the Constitution. Only then do we stand a chance of reclaiming our constitutional liberties from a rigid ideological campaign that has transformed our courts and our laws. Only then can we return to a constitutional law that advances freedom and equality.
A constitutional lawyer argues that since the Republican platform of 1964, the conservative movement has succeeded in altering basic precepts of constitutional law, not just through the policies of Presidents Nixon, Ford, Reagan and the two Bushes, but through Supreme Court decisions.
Chemerinsky, the founding dean of the University of California Irvine Law School and author of multiple legal texts (Enhancing Government: Federalism for the 21st Century, 2008, etc.), pulls no punches in charging that the conservative justices on the Supreme Court are activists driven by ideology in such matters as public education, affirmative action, presidential power, separation of church and state, individual liberties, rights to punitive damages, access to the courts and the rights of criminal defendants. To demonstrate how this shift affects individual lives, the author cites cases in each of these areas, many of which he participated in and lost as a pro bono lawyer in federal courts of appeal and before the Supreme Court. The cases include ordinary citizens in extraordinary circumstances: a man serving a life sentence for stealing videotapes from a store under California's "three strikes" law; a man seeking punitive damages after his family was destroyed in the rollover of a Ford Bronco; a man seeking an injunction against police chokeholds after he was injured by one. Chemerinsky was also involved in more prominent cases, including the suit in the Florida courts following the disputed 2000 presidential election and the Valerie Plame case. While acknowledging that the Court's shift to the right is likely to continue for decades, given the life tenure of justices, he believes that the pendulum will eventually swing back. The author contends that to bring about change in the composition of the Court it is essential to recognize that justices are not umpires but makers of value judgments and that the judicial confirmation process must include questions that reveal a nominee's ideology and values and denies confirmation to those who do not answer such questions.
A hard-hitting polemic from the left, timed to coincide with the opening of the Court's next term.
—Timothy Rutten, Los Angeles Times
- Simon & Schuster
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