Notes From Babel

Assaults on the Constitution

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After reading Erwin Chemerinsky’s The Conservative Assault on the Constitution recently, I’ve come to understand just how policy driven his approach to the Constitution is.  I plan to write up a review of his book, but I thought it was noteworthy that not even Bill Maher defends the Democrats’ shameful politicization of the judicial confirmation hearings of Robert Bork in 1987, and yet Dean Chemerinsky hales it as a victory for the Progressive view that a right to abortion, among other things, ought to be judicially amended to the Constitution.  To understand his book, one need only slightly recast its title:  call it “The Conservative Assault on the Unwritten constitution”—as in, the unwritten, judicially rendered constitution—and you start to get the picture.  Nearly every case Chemerinsky surveys involves conservatives chipping away at Progressive decisional law, not U.S. Constitutional law.  Supreme Court decisions rolling back affirmative action and arcane forced desegregation programs, permitting crèches and Ten Commandments displays on state or local government property, paring down the prophylactic exclusionary rule of criminal evidence for the benefit of good faith law enforcement, and so on.  The fact is, without the improper judicial contortions of the Constitution of the past 80 years, there would be no cause for the “assault” Chemerinsky is railing about.

Yet, Chemerinsky does not even hint at the Progressive assault on the Constitution that began in the 1930s.  Instead, Chemerinsky rebuffs the argument that the text of the written Constitution ought to be supreme, since this would ignore subsequent decisional law that regards that text as unimportant.  To insist on adherence to the Constitution’s text, Chemerinsky argues, “urges a radical change in constitutional law.”

Thus, it is the unwritten, post-1930s “constitution” that concerns Chemerinsky.  And he calls the pre-1947 interpretation of the Establishment Clause—which applies only to “Congress,” and not state and local governments—“radical,” and expresses relief that Clarence Thomas is the only Supreme Court Justice who would faithfully apply the actual text of the First Amendment.

In this regard, Chemerinsky is absolutely right that this fraudulent “constitution,” conjured by Progressive activists, is under assault.

Chemerinsky’s results-oriented constitutionalism was nicely demonstrated in an interview yesterday on Hugh Hewitt’s show.  Juxtaposed were two recent issues involving the exercise of federal power:  the individual health care mandate, and WikiLeaks.  When asked whether Congress could force individuals to buy health insurance, Chemerinsky characterized Congress’s authority to conscript Americans into economic activity as all but unquestionable, and the personal right not to engage in certain economic activity as simply nonexistent in the constitution:

I think that the real argument you’re making is that we should have some personal right to not purchase health care if we don’t want to purchase health care.  I don’t think there’s any doubt that the health care industry is a huge part of the economy and what Congress is doing is regulating interstate commerce in terms of something that has a tremendous economic effect.  I think the real objection is people say, ‘the government shouldn’t be able to force me to buy health care if I don’t want to.’  But that’s a very weak constitutional argument.  There’s no such right in the constitution.  And in fact, I think under post 1937 constitutional law, the Court would say, it’s reasonable for the government to believe that everyone’s going to need health care at some point in his or her life, vaccinations for children, people with communicable diseases have to be treated….”

I won’t get into the arguments why he’s wrong here, but it should be clear to anyone that Congress’s power to “regulate” commerce does not come with the power to mandate participation in commerce.  That’s not a regulation of commerce—it’s a regulation of people.  We would expect a constitution that allowed government control over even minute economic decisions of private individuals to look much different than the one we actually have.

But when asked whether this same government—and its broad, unquestionable power to regulate people’s activity for their own good and the good of the nation—could shut down WikiLeaks in the interest of national security, Chemerinsky suddenly changed his tune:

I don’t know what the outcome would be, but obviously that would raise huge First Amendment questions, and I think the burden would be on the government to show that there was material there that would cause great harm to national security.  And I don’t know the answer to that question, but I think the reason why the Obama Administration has not gone down that path is enormous concern over the First Amendment.

How do we decide that when it comes to this issue, the government has the burden (and I agree that it does), but when it comes to regulating individuals’ decisions whether and how to engage in commerce, the government is not just authorized, there’s “not even a credible constitutional argument,” as Chemerinsky said, against its authorization?

It is extremely troubling how highly intelligent and effective liberal lawyers like Chemerinsky are able to move effortlessly between the written Constitution of 1787 and the written Bill of Rights of 1791, on the one hand, and the unwritten constitution of the 1930s and beyond, on the other.  Following the Progressive Assault on the Constitution of the past 80 years, liberals and Progressives have devised a handy arsenal for themselves, giving them Constitutional language when it suits them, or case law when it doesn’t, in order to arrive at literally any outcome they desire.


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