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The Conservative Assault on the Constitution
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The Conservative Assault on the Constitution

3.9 11
by Erwin Chemerinsky

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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


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.

Editorial Reviews

Publishers Weekly
Chemerinsky, a leading constitutional scholar, offers an impassioned critique of current Supreme Court jurisprudence, which in his view has turned in a radically conservative direction that misperceives the role of the Court within our political system by exercising too much power in the development of public policy and betrays the Founder's Constitutional protections, such as the right to a fair trial. Chemerinsky depicts the rhetoric spread across recent Republican presidencies, which fueled political support for a conservative federal judiciary. With examples of the current Court's expanding conservative stamp on questions of education, expanding presidential power, infringing on the separation of church and state as well as individual and criminal rights, he asserts that the five-Justice conservative majority has systematically distorted our constitutional landscape with their overly conservative rulings. He remains optimistic, however, about the ultimate direction of the Court and suggests strategies to reverse the trend, like undertaking a concerted effort to debunk the fiction that conservative judges are not "activist." For support, he looks to the infamous Supreme Court opinion Bush v. Gore, which he claims demonstrates the hypocrisy of "the conservative rhetoric about judicial restraint." Conservative readers will be incensed by his critique of the Court, and liberals may take heart in his sense that there will be another day. (Oct.)
From the Publisher
“Admirably lucid. . . . Chemerinsky's book is a welcome dose of real history, clear thought and genuine respect for the rule of law as a humane covenant."
—Timothy Rutten, Los Angeles Times
Library Journal
Chemerinsky (founding dean, Univ. of California-Irvine Sch. of Law) brings his constitutional law expertise to this analysis of recent trends in American jurisprudence, which he believes are tipping the legal scales too far right. He shows how historically accepted principles of American constitutional law, such as separation of church and state, have been diluted by a new conservative mentality that is political, not legal, in nature. He argues that the resulting new brand of political jurisprudence in constitutional law is more an offspring of the ballot box than the natural evolution of legal theory, thus allowing, for example, public displays of religious symbols that would have been banned by earlier courts. Chemerinsky also asserts that the implementation of the death penalty is fraught with unfair procedures exacerbated by an increasingly conservative federal judiciary and legislation enacted by a conservative Congress that makes it harder for individuals, even those wrongly convicted, to gain relief. VERDICT Writing for a scholarly audience, the author clearly makes the case that conservative ideology has diluted traditional constitutional rights and liberties. Recommended for academic, public, and law libraries.—Philip Y. Blue, New York State Supreme Court Criminal Branch Law Lib., First Judicial Dist., New York
Kirkus Reviews

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.

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Simon & Schuster
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Meet the Author

Erwin Chemerinsky is the founding dean of the University of California Irvine Law School. He is a graduate of Northwestern University and Harvard Law School. After teaching law at DePaul College of Law, he moved to the University of Southern California, where he taught from 1983 to 2004. He frequently argued cases before the U.S. Court of Appeals in various jurisdictions and occasionally before the U.S. Supreme Court. He is well known in Los Angeles, where he helped draft a new city charter (he chaired the charter commission), issued a report on the city's police department, and commented on the O.J. Simpson trial. From 2004 to 2008 he taught at Duke University School of Law, before returning to southern California to start the law school at UCI.

He is the author of Constitutional Law: Principles and Policies, a widely used law school textbook.

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The Conservative Assault on the Constitution 3.8 out of 5 based on 0 ratings. 10 reviews.
DeafSonsDad More than 1 year ago
From the beginning to the end, the text shows why the concept of original intent is not applied. The ideology of the Justices is dictating the outcome of Court decisions. It is scary to see how the Supreme Court is empowering corporations and eroding liberty in the name of the Founding Fathers. This book points out that Justice is not blind. The book is not an easy read because the details are needed to show the differences in Court decisions and the Constitution. However, it is not written as a dense law textbook. Many heartfelt cases are presented that highlight the shift to the right of Court.
Trenton1776 More than 1 year ago
What a great read by constitutional scholar Erwin Chemerinsky. This book is filled with so much legal insight and anecdotal evidence of how conservative ideology has limited certain individual rights granted under the Constitution through decisions made by preceding Supreme Courts--especially during the liberalism of the Warren Court era. Chemerinsky shows through several legal categories how the Supreme Court in the last thirty years has changed the makeup of constitutional law in unprecedented fashion. According to Chemerinsky, conservatives on the highest court have greatly limited due process rights granted to criminals by denying them their petition of habeas corpus; have attempted to knock down the wall separating church and state by narrowly reading, or ignoring all together, the Establishment and Free Exercise Clauses under the First Amendment; they have greatly expanded sovereign immunity to be applicable to the States--virtually making suit against state governments impossible even if one's constitutional rights were purposely violated by the actions of state officials; also they have shown judicial irresponsibility by showing deference to the expansion of executive power by allowing the president to exercise powers not guaranteed, or granted, under the Constitution. But the issue that appears to be one of the most disturbing is the thirty years of the conservatives' assault on desegregation and affirmative action, thus making the legacy of Brown v. Board of Education nothing more than a relic of the Warren Court. Starting with President Nixon's desire to effectively end busing laws (i.e. an effective measure needed to desegregate schools), conservatives have sought to end desegregation by allowing schools and neighborhoods to re-segregate along the lines of economic disparity. Similarly, affirmative action has been wrongfully denounced by conservatives as lending favoritism to minority groups, when in fact, affirmative action is necessary in order to give minorities a chance at professional and educational opportunities not granted to them under the majority interests in the political sphere. What I take most from this book is the display of hypocrisy often shown by judicial conservatives. Conservatives claim that they abide by judicial restraint, adhering to the intent of the Framers, and that their interpretation of the Constitution is "merely applying the law, not making law." But, as this book effectively argues, such conservative rhetoric is far from the truth. Conservatives are known for displaying judicial activism just as much as liberals. Bush v.Gore showed that the entire election of the presidency was handed to George W. Bush by the decision of the Supreme Court (by it's five conservative justices). Furthermore, conservatives tend to practice judicial activism when it comes to gun rights by expanding the Right to Bear Arms Clause to apply to individuals, yet they ignore the State Militia Clause which was the reason for the ratification of the Second Amendment. Adhering strictly to the Framers intent, and strict construction, is another part of the conservative rhetoric wholly unprecedented in American jurisprudence. The problem with this view is quite evident: it is not always clear what the Framers intended when it comes to deciding tough constitutional issues, and how to apply them to the Constitution. Regardless of whether you are liberal or conservative, this is a must read book fo
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The current political climate is perplexing if not frightening. Chemerinsky tells it like it is. A must read.
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FLYNavy More than 1 year ago
First thing I noticed is that the editors review for an obviously left wing book is ENORMOUS! hmmmm..... Makes me wonder about politics being played here as I've never seen more than a few sentences of actual review written for any conservative literature. Second; Erwin Chemerinsky is a leftist. A liberal. A constitutional/judicial activist who believes that constitution should be re-molded as we go along. He believes in gun control, truncating peoples rights (elitism), abortion, and gay marriage. All this puts him firmly in the left wing & liberal camp. Don't get me wrong, he's stood up and been counted and come in on the side of reason and what's right on more than a few occasions, but when looking at this book, you need to remember the ideological direction he's coming from, because this book is written from THAT perspective.