Liberal Prof Gets Conservative About Supreme Court

THERE WAS a time, and it wasn’t so long ago, when liberals exuded confidence and panache. They proposed sweeping legislation and their pals on the U.S. Supreme Court confidently used the research results of social scientists to justify sweeping decisions to outlaw race-based education (in Brown v. Board of Education) or to mandate race-based busing of children (in Swann v. Charlotte-Mecklenburg Board of Education). Liberal pundits confidently sneered at conservatives as necessary but laughable “standpatters” without the stomach for bold, persistent experimentation.

How times change. Last week the very liberal Professor Erwin Chemerinsky of Duke Law School was worrying aloud to radio host Hugh Hewitt about Justice Clarence Thomas, no doubt in an effort to scotch any attempt to elevate him to become Chief Justice of the Supreme Court of the United States of America.

What, you ask, was the brilliant professor worried about? He was worried about Justice Thomas’s radicalism. He explained, in the practiced tone of patient condescension he must use in explaining elementary points of law to first year law students, that Justice Thomas

says, for example, that the provision of the First Amendment, that prevents establishment of religion, shouldn’t apply to state and local governments at all. No other Justice has taken that position in sixty years. He takes the position that Congress should not be able to regulate [interstate] activities… [but] only be able to regulate [interstate] economic transactions. What that means then is every federal environmental law would be unconstitutional, and many federal criminal laws would be unconstitutional.

What’s not to like? But Chemerinsky’s distaste for the radical Thomas is almost Burkean. What could have turned a left-liberal like Prof. Chemerinsky into an instinctive, not to say reactionary, conservative, desperate to hold the line on fifty years of liberal Supreme Court jurisprudence?

To answer this question we must take a bold step. We must deploy the analytical tools of postmodernism to try to understand the Curious Case of the Cautious Left-wing Professor. It is true that postmodernism is a highly corrosive solvent that comes with a government warning label: Danger! Highly Toxic! Not to be used on Liberals! But sometimes you have to take calculated risks to save lives.

Postmodernism says, of course, that it’s all about power. It says that the conservatism of Edmund Burke was merely the self-serving apology of a member of the ruling class. When Burke wrote in his Reflections on the Revolution in France of the “uniform policy of our constitution” to express rights as an orderly inheritance of “privileges, franchises, and liberties, from a long line of ancestors,” he rather slid over the fact that the politics of seventeenth century England had been a bloody struggle for power. He neglected to mention that the Whig revolution of 1688 turned upon a power play that sent the Catholic James II packing and flat-out changed the royal succession to the foreign (but Protestant) Princess Sophia as the “stock and root of inheritance to our kings.” The Whigs had the power to change the rules of royal inheritance and they used it.

Like Burke our American liberals look back with nostalgia to the golden years of their revolution, the perilous times of the hungry 1930s and the adolescent 1960s when they were the advocates, with FDR, of “bold, persistent experimentation,” or were, with President Johnson, “in favor of a lot of things… and against mighty few.” But now they rail against the Federalist Society as Burke railed against the Revolution Society. They are anxious to defend the “privileges, franchises, and liberties, from a long line” of liberal legislation and Supreme Court decisions as the “stock and root” of an inherited liberal tradition. Postmodernism teaches us that if the Democrats of olden times were in favor of a lot of experimentation, it was because they reckoned that change would enhance their power. And if today they have become standpatters that shrink from experimentation and political and economic change, they must reckon that change would reduce their power.

If postmodernism thinks that, it would be right. Today, change means building the good society with consistent, stable laws instead of vacillating Supreme Court ukases.

It means changing to a smaller government that keeps tax rates low and expenditures under control instead of feeding the liberal beast.

It means creating a vast ownership society of private institutions: businesses, churches, associations, unions, families, schools, in which ordinary people can practice the skills of self-government instead of depending a megastructure staffed by all-powerful liberal experts.

It means a Supreme Court that is so dull and boring that the nomination of a new justice fails to divert radical left-wing law professors from the important work of defending terrorist detainees.

It is not too much to ask.

Christopher Chantrill blogs at www.roadtothemiddleclass.com. His Road to the Middle Class is forthcoming.

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