Erwin Chemerinsky: Conservative Attacks on Constitution Have Upper Hand Now

Erwin Chemerinsky, founding Dean of University of California Law School at Irvine, is what Fox News commentators might call - in a  restrained moment - an unapologetic liberal.  Not that there is anything there to apologize for.  But polite discourse in law schools requires assuming the good faith and truth-seeking character of judges - all judges.  Effectiveness as a lawyer also requires restraint: why make an enemy of someone who might decide your client's fate.  Don't make yourself an issue - it could hurt your client.  


So it is noteworthy when someone like Chemerinsky waves the battle flag in this recent Op-Ed piece:

Young lawyers who served in the Reagan administration and were deeply committed to its conservative agenda, such as John Roberts Jr. and Samuel Alito Jr., came to be U.S. Supreme Court justices. It is a mistake to see the policies of the Bush administration or the Roberts Court in isolation from a larger conservative movement that has sought to alter basic precepts of constitutional law — and in many areas succeeded in doing so.

Looking at many different areas helps to show that the conservative assault on the Constitution is not a product of a neutral method of interpretation or a commitment to judicial restraint. Quite the contrary: Conservative justices are willing to be activist in striking down laws and overturning precedents with regard to affirmative action programs, or invalidating gun control laws, or imposing new limits on punitive damages awards to injured individuals. They espouse a need to be true to the framers' intent but are willing to abandon it when it does not support the results they want.

The conservative assault on the Constitution is driven not by methodology or interpretive philosophy but by ideology. Antonin Scalia, one of the prime architects of the Court's conservatism, finds in the Constitution no limits on government aid to parochial schools. He believes that the Constitution allows prayers in public schools. He rejects a constitutional right to abortion, but finds a right of individuals to have handguns. He wants to strictly limit the ability of federal courts to order desegregation of elementary and secondary schools, but refuses to allow colleges and universities to engage in affirmative action to remedy the great disparities in the U.S. educational system.

Scalia professes that he follows the Constitution's original meaning, but his are the views of the 2008 Republican platform, not of the framers.