Jesse Jackson, ever vigilant for victims at home and abroad whose rights are being trampled by the forces of reaction, i.e., Republicans and their friends, has recently found a strange new candidate in need of his benevolent protection. Starving children in Africa? Victims of mob violence in South America or America’s misguided assistance in Iraq?
No, the poor downtrodden target of today’s forces of reaction (that is, Republicans and their friends), is the Congress of the United States.
According to Jackson, President Bush and his nominee, Judge Alito, are “standard bearer[s] for the new reaction, seeking a return to states’ rights and corporate rights over the rights of Congress….”
Poor Congress, consigned by Jackson to the walking wounded about to get its rights snuffed out, all because these reactionaries want to take what they regard as “the real Constitution” out of “exile” and send the country reeling back, not to 1937 but all the way back to the the Gilded Age in the 19th Century.
Someone should tell Jackson, before he embarrasses himself further, that there is rather profound inconsistency between his newfound devotion to judicial restraint and his constant invocation of Brown v. Board of Education, which refused to kowtow to precedent (Plessy), to the wishes of a number of state legislatures, or to Congress’s notable failure to exercise its authority to end segregation under powers granted to it by both the Commerce Clause and the 14th Amendment. Also, has Judge Jackson yet filed his amicus brief urging the Supremes to defer to Congress’s authority to deny funds to campuses that exclude military recruiters? If so, I’ve missed it.
That someone will not be Ralph Neas, head of People for the American Way. Speaking to the American Constitution Society, made some remarkable — even for Neas — and revealing comments:
… there really is an epic struggle between two competing and radically different judicial philosophies. And since 1937 when the first New Deal measure, after four years of trying, was validated constitutionally in the Social Security Act, we’ve really had a second American Revolution. And so many rights and liberties and legal protections have come through the courts, Congress mainly because of how the commerce clause, spending clause, Fourteenth Amendment and privacy have been interpreted.
What Scalia and Thomas would do if they had a majority is overturn those 100 precedents going back to 1937 and point to — and this is really, really important — remove the constitutional authority for progressive government maybe for decades, because they believe the Constitution has been in exile since 1937. They want to redefine commerce and spending, the Fourteenth Amendment, privacy, other provisions. That’s what’s at stake. I could not give more of a sense of urgency to it…. But basically, if someone to the right of Sandra Day O’Connor gets on that court, it will dramatically push the court to the right. In essence, that person will become a walking constitutional amendment. Many rights, freedoms and protections that we’ve taken for granted for decades could disappear overnight. [Emphasis added]
Most responses to this sort of Chicken Little hyperbole have emphasized that it’s not true, that judges like Chief Justice Roberts and Judge (with luck, soon to be Justice) Alito are not revolutionaries who will cause the constitutional sky to fall. I believe this criticism is persuasive — Roberts and Alito are not revolutionaries — but let’s put it aside for now and look at another aspect of today’s Neas-jerk liberalism: the frank admission that “so many rights and liberties and legal protections have come through the courts” and that what is most feared is that if the Court moves “to the right” it will put a brake on court-created rights. Note that this fearmongering comes from folks who also claim they want nothing more (really!) than “judicial restraint.”
One additional point: also note the fundamental distrust of, even disdain for, democracy implicit in the fear that if we dispense with court-created rights we will have no rights at all. If courts returned to a reasonable version of judicial restraint — which would not, it should be emphasized, prevent them from barring unconstitutional behavior by Congress or the states — Congress and state legislatures would remain perfectly free to implement or protect a virtually endless panoply of rights. To say that Congress’s authority under the commerce clause is limited to measures that have some appreciable relation to commerce is not to say, as the liberals seem to imply, that it would have no power at all. Congress could have chosen to base its civil rights legislation on its power to implement the provisions of the 14th Amendment, and it could cut off funds to discriminatory schools and other organizations based on its clear powers of the purse. Just as it has chosen not to fund abortions, it could choose not to fund discriminatory behavior.
And now a final point: since Neas approves of those New Deal justices whose famous “switch in time saved nine” (whose acquiescence to New Deal policies headed off the effort to enlarge the Court), he can have no objection in principle to an O’Connor replacement being “a walking constitutional amendment.” That is, since he supports “amending” the Constitution by means other than those provided for in Article V when liberals are doing the amending, his objection to a new justice being “a walking constitutional amendment” is purely partisan, not principled, and is due no more deference than political majorities typically give to political minorities on matters that Neas himself obviously views as purely political.
“Someone should tell Jackson, before he embarrasses himself further, that there is rather profound inconsistency between his newfound devotion to judicial restraint and his constant invocation of Brown v. Board of Education, which refused to kowtow to precedent (Plessy)”
And yet, was in itself a very restrained opinion. Note “all deliberate speed.” Note too that in the decade following brown, not much desegregation had been achieved.
And yet, was in itself a very restrained opinion. Note “all deliberate speed.” Note too that in the decade following brown, not much desegregation had been achieved.
No, it wasn’t (thank goodness). It was the very embodiment of judicial activism in disregarding clear precedent, clear “intent of the framers” (as the famous Alexander Bickel article showed at the time, the framers of the 14th Amendment specifically argued that it would not interfere with school segregation), the policies of numerous state legislatures, and the failure of Congress to enact anti-segregationist legislation. The only thing “restrained” about Brown was in fact the puny and belated enforcement of it, and then the enforcement went off track by going beyond what Brown had decided.
“No, it wasn’t (thank goodness). It was the very embodiment of judicial activism in disregarding clear precedent, clear “intent of the framers” (as the famous Alexander Bickel article showed at the time, the framers of the 14th Amendment specifically argued that it would not interfere with school segregation), the policies of numerous state legislatures, and the failure of Congress to enact anti-segregationist legislation”
See, I don’t think we can trust the intent of the framers when it turns out that it goes not only against the text but also against our experience of the text — separate was not equal, as experience shows. Brown was nice, but in the end, showed the limits of judicial activism: it took both the legislature and executive branches getting their ass into gear to shape up the south.