In the Summer edition of the Claremont Review of Books, John C. Eastman reviews Erwin Chemerinsky's The Conservative Assault on the Constitution and finds it lacking, to say the least. Chemerinsky, who serves as Dean of the University California, Irvine, School of Law and is an ardent believer in living constitutionalism, takes conservatives to task for supposedly shredding the Constitution of the Framers and ratifiers.
Chemerinsky's argument is that the Founders had intended living constitutionalism all along, and it was FDR's Supreme Court picks along with the Warren Court that were faithful to the Founders' original vision. This is how he is able to argue that conservatives--and Ronald Reagan in particular--are guilty of assaulting the Constitution, because they are continuing to reverse the precedents set by those courts. But as Eastman notes, Chemerinsky's "tactic is clever: each 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." It quickly becomes clear that Chemerinsky's constitution is simply a series of preferred liberal policy proposals and is therefore a clear rejection of the Founders' original intent.
Among Chemerinsky's more egregious errors is his claim "that Bush ignored the basic constitutional premise that two branches should be involved in all major governmental actions." Eastman points out that Chemerinsky is simply "forgetting (or worse) that Congress authorized the use of "all necessary force" against the terrorists who attacked us on 9/11." Also he, along with the Democrats, applauded when the Supreme Court took the unprecedented step of granting unlawful enemy combatants the rights of U.S. citizens under the Constitution. Throughout the history of Western civilization, dating back to the Romans, there has always been a distinction between lawful and unlawful combatants. And as Eastman notes "American law dating to the Civil War, and international law dating at least to the Hague Convention of 1907 and repeated in the Geneva Convention of 1949, spell out the distinctions between combatants (lawful and unlawful) and civilians."
Chemerinsky repeats the error of Justices Harry Blackmun and William Brennan when he claims that the Eighth Amendment's prohibition of "cruel and unusual punishment" forbids capital punishment. A quick look at the text of the Fifth Amendment disputes this charge. The Fifth Amendment recognizes "capital" crimes and implies that with due process, one can be convicted and sentenced to the punishment generally meted out for conviction of a capital crime: capital punishment.
At it's core, Chemerinsky's constitutionalism is nothing more than a rejection of the Founder's Constitution and the idea of written law in general. More damaging than his straight rejection of the written text of the Constitution is his disregard of the political philosophy of the Constitution. Chemerinsky's jurisprudence rejects the natural rights framework of the Declaration of Independence, which the Constitution presupposes. It does so because, far be it a modern invention, living constitutionalism in another age was considered the very definition of lawlessness. English Kings, who ruled by divine right, issued and revoked laws as they saw fit with no real consent of Parliament (at least no meaningful consent until the Glorious Revolution in 1688).
The Founders viewed that just government was instituted by social compact, or the unanimous agreement of the those to be governed. The purpose of government was to protect the natural rights of the governed which, in a state of nature, are insecure. It is only by setting that unanimous agreement on the basis that all men are created equal--that no man is by nature the ruler of any other man without that other man's consent--that government can be called just (and perfect liberty be realized). For the Founders, rights were derived from duties; natural rights were derived from natural law. By recognizing the co-equal authority of reason and revelation (the Laws of Nature and Nature's God), the Founders instituted the first regime in human history where all people would be able to realize both religious and civil liberty more perfectly than at any previous time. These principles are of course immutable and are not bound by the time in which they were thought or written; they apply the same today as they did in 1776. By asserting the natural rights basis for American republicanism in the Declaration of Independence, the Founders made the clearest repudiation of divine right monarchy--and living constitutionalism--that one can make.
In the current day, it is of the utmost importance that we return to the Founders' understanding of politics and philosophy not even simply because they are the Founders but because theirs was an understanding that is good and just.
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