RADICALS IN ROBES

Attempting to support his alarmist view of how life would degrade under the sway of extreme right-wing judges, Sunstein (The Second Bill of Rights, 2004, etc.) nevertheless presents a surprisingly balanced history of constitutional law.

Sunstein (Jurisprudence/Univ. of Chicago Law School) warns that legal fundamentalists, who interpret the Constitution according to the “original understanding,” that is, how the framers and ratifiers conceived it, would deprive us of many of the freedoms and protections that we now take for granted. Fundamentalist courts would, for example, overturn Roe v. Wade on the basis that the Constitution does not protect privacy, strike as unconstitutional key provisions of anti-discrimination laws such as the Civil Rights Act and environmental safeguards such as the Clean Air Act, permit states to bar women from practicing as doctors or lawyers, declare even modest gun control laws invalid, scale back the rights of the accused, shield commercial advertising from government regulation and poke giant doorways in the wall that separates church and state. In fact, states could establish official religions. Sunstein’s most compelling argument against fundamentalism is that the framers and ratifiers were only human, so the Constitution can’t be perfect. Sunstein, however, does not establish a strong one-to-one correspondence between fundamentalism and extreme right-wing politics, other than to say that Justice Antonin Scalia, the most conservative member of the U.S. Supreme Court, is a fundamentalist. Not until near the end does he state, without much support, “The constitutional judgments of fundamentalists are eerily close to the political judgments of conservative politicians.” His evidence that courts are generally shifting to the extreme right is also weak. Sunstein promotes a minimalist approach to constitutional law, which allows that it’s okay to nudge the law carefully in one direction or another (right or left) with incremental decisions, rather than overreach, as he believes the Supreme Court did in Roe v. Wade.

Not entirely the partisan screed that you’d expect, not especially provocative, but enlightening and in some places fascinating.