October 19, 2010
Chemerinsky: A Conservative Assault on the Constitution
Erwin Chemerinsky released his new book, The Conservative Assault on the Constitution, late last month. It's a highly accessible, often first-hand account (through his own cases, his own advocacy) of how a rightward shift in the composition of the federal courts has changed the Constitution.
Among the topics Chemerinsky examines: school segregation; executive authority; religion clauses; rights of criminal defendants; and access to the courts.
Chemerinsky identifies separation of church and state as a key issue--one that happens to be in the headlines today, after Republican and Tea Partier Christine O'Donnell seemed to argue in her debate with Chris Coons that nothing in the First Amendment compels such separation. Here's part of what Chemerinsky has to say about it:
A major concern of the right wing is the separation of church and state. For decades, it was understood that the First Amendment's prohibition on the establishment of religion meant that there was a wall separating church and state, a wall that kept American governments secular. But conservatives, especially starting with the Reagan presidency, have sought to eliminate any such notion. They argue that the government should have broad latitude to aid religion andto include religion in government activities. With the arrival of Chief Justice Roberts and Justice Alito, there now appear to be five votes for radically changing the law in this area in a manner that conservatives have advocated for decades.
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So I guess when liberals decide that a monument to the Ten Commandments which has been sitting in the public square for decades must suddenly be removed, it is conservatives that are making it an issue?
So I guess when the public school system has had daily prayer since their inception, it is conservatives who want it stopped? I don't recall it that way.
Chemerinsky is forgetting what the status quo was since our Founding. It is the liberals who upended anti-sodomitic laws with Lawrence and have been torching state laws on social issues, not the conservatives. Or am I mistaken?
I think he is just unhappy that the Supreme Court hasn't happily taken charge of the country and forced all states to support homosexuals as a protected class and erased all vestiges of religion.
Posted by: Warren Norred | Oct 20, 2010 7:13:15 AM
"It's a highly accessible, often first-hand account (through his own cases, his own advocacy) of how a rightward shift in the composition of the federal courts has changed the Constitution."
Assuming the Constitution has changed: isn’t that the risk of accepting that it is a living document? I can’t say for sure, but I am reasonably certain that I have heard Professor Chemerinsky espouse the view that the Constitution is subject to change over time.
Posted by: mahtso | Oct 21, 2010 12:31:00 PM