An interesting and very revealing article, and I can hear Sunstein's back cracking audibly from the brave effort to appear balanced in his views--his approval of Ashcroft's nomination process will probably get his windows broken back on campus--but it is painfully obvious that he would be a lot less concerned about a court that tilted left than he would a conservative court.

I can think of dozens of ways a liberal court has crushed individual and state rights over the years, shoving ever more power into the Federal government. And what, according to Sunstein, has the conservative court done? His list:

-The Rehnquist Court has reinvigorated the commerce clause as a serious limitation on congressional power, for the first time since the New Deal itself. As a result, a number of existing federal statutes have been thrown into constitutional doubt.



-The Rehnquist Court has sharply limited congressional authority under section 5 of the fourteenth amendment, in the process striking down key provisions of the America is With Disabilities Act, the Religious Freedom Restoration Act, and the Violence Against Women Act, all of which received bipartisan support. In fact section 5 of the Fourteenth Amendment has a narrower reach than at any time in the nation's history, because of the Rehnquist Court's decisions.

-The Rehnquist Court has imposed serious barriers to campaign finance legislation — with Justices Scalia and Thomas suggesting that they would be prepared to strike down almost all legislation limiting campaign contributions and expenditures. Many people do not believe that campaign finance legislation is a good idea. But many of those who would question it in principle (as I do) also believe that this is not a subject to be settled by federal judges.

-The Rehnquist Court has thrown affirmative action programs into extremely serious doubt, raising the possibility that public employers, public schools, and public universities will not be able to operate such programs. Many people reasonably doubt the sense, wisdom, and fairness of affirmative action programs. But those who have these doubts usually do not believe that the issue should be resolved by federal judges, as it now threatens to be. The Rehnquist Court has given heightened protection to commercial advertising, to the point where advertising does not have much less constitutional protection than political dissent.

- In many cases, the Rehnquist Court has interpreted regulatory statutes extremely narrowly, choosing the interpretation that gives as little as possible to victims of discrimination, pollution, and other misconduct.



I originally was going to comment on each of these, then figured, why waste my wrists? Suffice it to say that the crimes of the Rehnquist Court all involve rolling back the near-totalitarian power of the Federal Government to control the lives of American citizens. Conservatives and libertarians will look at the list above and see exactly what I mean. Liberals wouldn't get it anyway.

...There can be no doubt that the transformation in the federal judiciary, produced over the last twenty years, has been a product of political forces, and in particular of a self-conscious effort, by Republicans in the White House and the Senate, to ensure a judiciary of a certain stripe. This effort to transform the federal judiciary has been quite successful - in part because President Clinton, to his credit, generally made centrist appointments, on the Supreme Court and on the lower courts. In fact it is hard to think of any non-centrist appointment by President Clinton within his eight years in the White House.

This is another example of the odd syndrome which has been commented on by myself, Goldberg in "Bias," and many others. A leftist almost universally believes himself to be in the moderate "center," with only the extreme right on one side, and on the other side....here a mental blank out settles over his mind. I have called this the "Mobius" version of the political spectrum, which possesses a center and only one side. I have no doubt at all that Sunstein honestly believes his own views are smack down the center, and this is projected onto other liberals which he sees.

Sunstein finishes off with a list of the horrors of decentralization which could follow more conservative appointments:

- strike down affirmative action programs, perhaps eliminating such programs entirely; strike down campaign finance reform;



- invalidate portions of the Endangered Species Act and the Clean Water Act;

- reinvigorate a controversial

[!!!!] understanding of the Second Amendment, so as to disable Congress and the states from enacting gun control legislation;



- elevate commercial advertising to the same basic status as political speech, thus preventing controls on commercials by tobacco companies (among others);

- further reduce congressional power under the commerce clause;

- generally limit democratic efforts to prevent disabled people, women and the elderly from various forms of discrimination;

- significantly extend the reach of the "takings" clause, thus limiting environmental and other regulatory legislation;

- ban Congress from allowing citizens to sue to ensure enforcement of the law;

- and much more.



Do I really have to say any more here? Again, for conservatives and libertarians the meaning of this list lamenting the possible snapping of Federal chains is obvious*. Hell for liberals, indeed. Why, who knows how much power could be leeched from the Federal government? Good God, what if the Constitution started being interpreted literally?

Again, I am no Constitutional lawyer or scholar, but I know one thing for sure:

The purpose of the Constitution and in particular the Bill of Rights, was to place massive, rigid restrictions on the power of the government. NOT on the powers of the people. It was also intended to place certain principles beyond the tyranny of a pure democracy.

Go ahead. Look through it. Nothing in the Bill of Rights says that "the people shall not..." The Tenth Amendment--"The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people"--was specifically included as an added emphasis on this concept by men who knew exactly how easy it was for a government to increase its own power. Roughly translated: The government shall do no damn thing that is not specifically outlined in this document. Naturally, this Amendment is more or less toilet paper now.

When Sunstein laments the loss of Congressional power by the invocation of the Constitution by judges, he does not seem to realize that this is EXACTLY what the Constitution is supposed to do. Under current leftist political thought, there should be no limits at all on what people should be able to vote onto the backs of their fellow citizens, and I can understand how frustrating a Supreme Court that actually believes in the Constitution's literal purpose could be.

From the constitutional point of view, what would be most troublesome about such a future would not be the results. It would be the large transfer of power from democratic branches to the federal judiciary. For people of varying political commitments, this transfer of power should be quite troublesome. The conservative attack on "liberal judicial activism" is now out of date, but it had a great deal of merit. Conservative judicial activism is not better.

Oddly, although he pays lip service several times to a concern about historical "liberal judicial activism," he seems to be just fine with the previously-quoted laundry list of Federal impositions that were the result of such activism, and mourns their possible loss. Nice try, Professor.

Thanks, Mary Anne, for a most educational reference.

*Don't bother posting trying to defend all these liberal sacred cows one by one. You probably know what I'm going to say, and I sure as heck know what you're going to say. Save it.