Tuesday, April 19, 2005

Professor No-Name's Extravagant Claims

Years ago I had lunch with an academic friend who'd recently put out a book. He gave me a copy and said I probably wouldn't agree with it. I said it's okay, I wasn't planning on reviewing it.

Now this same academic has written an editorial. I'm going to publicly disagree, but to keep up with the principle above, I'll withhold his name. (Is that the principle above?)

He states there's been three different stages of conservative criticism of the federal courts in the last fifty years. Already I can see his views are more nuanced than mine, since, as far as I can tell, there's been a fairly steady drumbeat of criticism for decades, with ebbs and flows. (Is that ebbs and floes? Okay, no more questions in parantheses.) He believes the latest criticisms represent the worst attack yet. I don't know--seems to me the high point of the fight was when leading Republicans were planning to impeach Justice Douglas decades ago.

Anyway, he considers the latest criticism the most serious of all. Why? Well, here's his parade of horribles if they get their way:
"[The conservatives feel] federal judges should strike down affirmative action programs, protect commerical advertising, invalidate environmental regulations, allow the president to do whatever he likes in the war on terrorism, use the Constitution to produce tort reform, invalidate gun control regulation, [and] invalidate campaign finance laws and much more--regardless of whether they can find solid justification for these steps in our founding document."
Hmm. If I were a federal judge, I'd certainly strike down many affirmative action programs. "Solid" is too light a word for the legal justification--affirmative action as generally practiced has been forced on an unwilling public, especially by judges who wrote decisions that flew in the face of clearly written laws.

Commercial advertising would get more protection, and the constitutional justification seems clear cut to me.

As for environmental, or indeed, any other widespread regulations, it would depend on the law. The Constitution, without question, contains limits on the powers of Congress, and just because the courts started pretending it didn't in the late 30s doesn't mean we should continue to ignore our founding text. (Even if we judged the regulations' alleged rational justifications a bit more clearly, we might still find many to strike down.)

As far as the president's powers in the war on terror, this is a highly tricky Constitutional question. There's certainly clear textual support that the president, once he's operating in a war, has tremendous leeway. Once again, I'd have to see the particular set of facts. (By the way, limiting the president's power, along with allowing affirmative action programs, strike me as both very anti-democratic.)

Tort reform? Haven't really heard the argument being made, so I don't know how to respond.

As to invalidating gun control regulation, it will come as a shock to many lay people that the Second Amendment has rarely been invoked by the courts. (Many state constitutions also have their version of the Second Amendment, by the way). But it's still there. If the high court actually wants to start interpreting it, rather than ignoring it, I can't say they're obviously wrong.

As to one of the most egregious anti-free speech opinions ever (that allowed POLITICIANS TO REGULATE POLITICAL SPEECH DURING ELECTIONS), the faster anti-First Amendment campaign laws are invalidated, the better.

Professor No-Name believes such decisions would represent "a fundamental challenge to the rule of law itself." This is hysteria. It's simply a collection of different legal interpretations he doesn't approve of.

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