“Liberals are the true conservatives of this generation,” a growingly popular line of argument goes, “because liberals are the guardians of the new American tradition—the New Deal tradition—against the reactionary onslaught of the fake, revanchist ‘conservatives.’ True constitutional conservatism,” the argument continues, “would defend Supreme Court decisions of the past 70 years that approved centralized administrative rule, and would recognize that those decisions comprise the operative constitution of the new American order.” As my friend and former Chapman law professor John Eastman put it in his recent review of UC Irvine law school dean Erwin Chemerinsky’s book The Conservative Assault on the Constitution, “the Constitution began in the 1930s when the Supreme Court finally acceded to the radical expansion in federal power pushed by President Franklin Roosevelt and his New Deal, and has remained a one-way ratchet ever since.” According to liberal constitutional conservatism, then, any effort to pare back the advancements of the centralized administrative state by pointing to limits described in the original Constitution is therefore “not an ‘assault’ on the New Deal but on the Constitution itself.”
The approach brings to mind a passage from Gulliver’s Travels. As Jonathan Swift put it,
It is a maxim among these lawyers that whatever has been done before, may legally be done again: and therefore they take special care to record all the decisions formerly made against common justice, and the general reason of mankind. These, under the name of precedents, they produce as authorities to justify the most iniquitous opinions; and the judges never fail of directing accordingly.
The “assault” Dean Chemerinsky derides, then, is not on the big-“C”-Constitution but the small-“c”-constitution as judicially amended and legislatively subverted by New Deal and post-New Deal thinking—that is, the constitution that says “The federal government, yes, can do most anything in this country.” Prof. Eastman describes this “clever” approach taken by Dean Chemerinsky and his liberal colleagues as follows:
[E]ach leftward evolution of the Constitution’s meaning becomes a new fixed baseline of constitutional law, and any move to return to the original meaning amounts to a repudiation not of the wayward interpretation but of the Constitution itself.
. . . .
According to his methodology, every precedent, however short-lived, that pushes the Constitution’s meaning in the preferred direction, i.e., leftward, becomes the new benchmark for what the Constitution itself says, while any precedent to the contrary is simply an “assault.”
As for the particulars of his argument, Dean Chemerinsky offers little that anyone other than friends of the hard left can agree on. For example, not even Bill Maher defends the Democrats’ shameful politicization of the “advice and consent” process to
freeze [block] Robert Bork’s confirmation to the Supreme Court. Yet Dean Chemerinsky hales it as a victory that ensured the longevity of liberal judicial amendments to the constitution, abortion being chief among them. On that topic, Dean Chemerinsky says the key question is “who would decide whether the fetus before viability is a human person: each woman for herself or the state legislature.” To this, Prof. Eastman responds:
I have never seen the Left’s position on abortion phrased quite so starkly, but it should put to rest the myth that the “progressive” view in support of a “living Constitution” is designed to advance human dignity. That anyone, individual or legislature, gets to determine the human personhood of another human being is a notion that I had thought we had buried in the ashes of the Civil War. It bears an uncanny resemblance to the claim made by slave-owners that it was their moral prerogative to determine whether blacks should be treated as property or as human beings. If “the conservative assault on the Constitution” is an assault on that proposition, then count me among the assaulters in chief.
Moving beyond the abortion issue, nearly every other case analyzed by Chemerinsky involves conservatives chipping away at Progressive decisional law, not U.S. Constitutional law. Supreme Court decisions rolling back affirmative action and arcane forced desegregation programs, permitting crèches and Ten Commandments displays on state or local government property, paring down the admittedly prophylactic exclusionary rule of criminal evidence in aid of good faith law enforcement, and so on. Thus, as Prof. Eastman puts it:
The ability to manipulate the Constitution’s text to arrive at new and radically different conclusions than originally intended is the hallmark of the “living constitution” enterprise. Opposition to the enterprise may be an “assault” on the living constitution enterprise, but hardly one on the Constitution, as the author claims.
In other words, it is only the post-1930s “constitution” that concerns Dean Chemerinsky. He calls the pre-1947 interpretation of the Establishment Clause—which, according to the First Amendment’s text, applies only to “Congress” and not state and local governments—a “radical” one; he expresses relief that Clarence Thomas is the only Supreme Court Justice who expresses support for the actual words in the Constitution. Whatever constitution Dean Chemerinsky thinks conservatives are “assaulting,” then, it’s not the document preserved under glass in Washington.