The Conservative Assault on the Constitution (Simon N Schuster, $27) argues that beginning with Richard Nixon
and continuing through to George W. Bush, conservative presidents and their supporters have tried to change basic
constitutional principles through their policies and appointments
to the U.S. Supreme Court.
And the book's author–founding UC Irvine School of Law dean Erwin Chemerinsky–concludes the conservatives have succeeded.
Chemerinsky labels justices such as William Rehnquist, Antonin Scalia, Clarence Thomas, John Roberts and
Samuel Alito activist judges who have lessened individual freedom, altered long-standing constitutional understandings and imposed their own set of values. The activist judge rap also rings in the ears of judicial watchers who have heard the exact same claims leveled at liberal justices.
Millions of Americans have been denied justice while the court has swung so radically to the Right, says Chemerinsky, who traces the conservative ascendance back to the 1960s, when resistance was mounted against desegregation and the
Civil Rights reforms.
“Nowhere has the conservative assault on the Constitution . . . been
more apparent or more important than in its re-creation of separate
and unequal schools,” he writes.
When a landmark Supreme Court
decision in 1973 ruled that education was not a constitutional right,
states understood that they could close their schools rather than open
them to children of all races, he notes. That has led to our current system where minority-dominated schools receive disproportional funding, Chemerinsky argues.
He chastises the conservative judicial view on privacy rights, “three strikes” laws, same-sex marriage, the rights of criminal
defendants and the
long-recognized wall separating church and state. Conservative jurists, Chemerinsky maintains, have endorsed
broad expansions of presidential power, which he characterizes as a dangerous
breach of the checks and balances that have served this country for two
“Our Constitution depends on the courts to keep it alive; we all depend on Erwin Chemerinsky
to remind us why that is so important,” blurbs Susan N. Herman, president of the American Civil Liberties Union, about The Conservative Assault on the Constitution. “This book is essential reading
for anyone who cares about preserving our constitutional birthright.”
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“Erwin Chemerinsky knows the Constitution as a legal scholar and the Supreme Court as a
lawyer who represents clients there,” adds Linda Greenhouse, a Yale Law School lecturer and former New York Times Supreme Court correspondent. “It's a rare and powerful
combination that makes him uniquely qualified to write this disturbing
and persuasive book about the impact of the current Supreme Court's
approach to constitutional interpretation.”
Chemerinsky has authored six previous books, more than 100 law-review
articles and, whether he writes or speaks, is used to stirring up controversy. Even his 2007 arrival at UCI was fractious, with Chancellor Michael Drake hiring, un-hiring and ultimately re-hiring the maverick legal scholar.
A graduate of Northwestern University and Harvard Law School,
he has argued several cases before the Supreme Court and
various circuits of the United States Court of Appeals.