Courting disaster

What are some of the differences then between the liberal perfectionist and fundamentalist interpretations of the Constitution?

The liberal perfectionists are certainly faithful to the text of our Constitution. What they want to do is understand the document, the "majestic generalities" -- equal protection, due process, and cruel and unusual punishment -- and cast these generalities of our Constitution in the best possible light given our current values. If the death penalty is cruel and unusual punishment, then given our current values, we should strike down the death penalty. If bans on same-sex marriage are inconsistent with the best understanding of equal protection, then we should strike down bans on same sex marriage. So that's been a very popular view among American liberals in the last half-century. Fundamentalists think that that gives too much discretion to judges, and that it's not really faithful to the historical Constitution. They want to turn constitutional law into a series of historical questions, whereas the perfectionists want it to be a question of values where we don't go back in time machines.

And part of the fundamentalists' view of constitutional law has to do with the distinction between "original meaning" and "original intent" in their legal interpretations.

The best fundamentalists insist on this distinction. The "original intent" asks, What did the framers intend? The fundamentalists think it is very hard to know what particular people intended, and second, it doesn't matter what they intended, because the intentions of the framers of the Constitution have no authority. What matters is what the "original meaning" was to the people who ratified, or gave these phrases legal force. If today we ratified a constitutional provision that allowed Congress to ban flag burning, fundamentalists would ask what the words "ban" and "flag burning" meant. They want to ask questions about common understandings at the time, not about subjective views inside people's heads. It's a subtle distinction, but it matters. Suppose Congress passes a law today. Do we ask what Senator Kennedy and Senator Hatch intended by the law? Or do we ask, What is the natural meaning of the law, given how language works today?

President Bush constantly invokes the term "strict constructionist" when describing judges he likes or judicial philosophies he prefers. How has this phrase been used by the fundamentalist movement to make it more palatable to the public?

The use of the noble sounding "strict constructionist" phrase is a camouflage for a set of views that are quite radical. If it was "radical construction" or "extreme right-wing construction" it wouldn't be as appealing a description. Some Republican extremists have been terrific propagandists and they have been extremely good at coming up with phrases that make radical plans sound innocuous and wonderful. But I don't think the country has come close to getting an adequate picture of what it would entail. One reason is because fundamentalists are evasive when pressed about the implications about their position. When they're asked, "Doesn't this mean the national government is permitted to discriminate on the basis of race?" they change the subject or make it more complicated.

Is it just liberals who should be afraid of this radical movement? Or should conservatives be concerned, too?

One of the best developments in the last six months is that Arlen Specter gets it. He understands that conservatives have a lot to lose if the court continues on a program of reasserting limits on congressional power. The Rehnquist court has struck down more than three dozen acts of Congress, like the Religious Freedom Restoration Act -- which was mostly a conservative initiative. If the court had struck down the ban on marijuana for medical purposes -- and Justice Thomas wanted to strike down the ban -- conservatives would've been more upset than liberals. The War on Terror might be compromised in its attempts to enlist the states in the protection of national security. Some of the court's decisions raise some questions about that. There are a lot of things that conservatives would want to do through Congress that the fundamentalists won't let them do. I think Specter wants to ask Judge Roberts some questions about that.

In your book you quite plainly list the number of potential consequences should fundamentalists gain a majority on the court.

I believe fundamentalism actually means that the national government is entitled to discriminate on the basis of race and sex, and there is no equality principle applied to national government. Fundamentalists believe that there is no right to privacy. If the government wanted to disclose your medical records or bank records, there's no constitutional problem with that. They believe that state governments can discriminate on the basis of sex however they want. They believe that state governments can engage in racial segregation. And many fundamentalists think that you can't have independent regulatory agencies.

How does the rise of the religious fundamentalist movement in this country figure into all of this?

I didn't get into the religious right [in the book] because I am a law professor who hasn't studied the underlying political dynamics. But the fact that the word "fundamentalist" has an echo of religious fundamentalism didn't bother me. What bothers me about religious fundamentalists is that they think the law is much more against them than it actually is. They act as though the Supreme Court is on some sort of rampage against religion -- which is ridiculous. This Supreme Court is much more sympathetic to the claims of religion than any other court in the last 40 years. There is also a feeling that some religious fundamentalists have that religious pluralism is un-American, that ours is a Christian country, and to affirm that through our law is good and natural. Justice Scalia and Justice Thomas have gone further in the direction favored by the religious right, rather than in the best interests of a pluralistic democracy.

It seems like many of Justice Thomas' positions are quite radical. You write in the book that he would see nothing wrong allowing a state to establish an official religion for itself.

Let me say something about Justice Thomas. There's no doubt that he has an interesting mind and he's creative, but he is one of the most extreme people we've ever had on the Supreme Court. He believes the separation of church and state doesn't apply to the states; he believes commercial advertising receives the same protection as political speech; he suggests that the court should start striking down agencies on the ground because they exercise too much discretion; he takes the hardest line imaginable against campaign-finance reform without looking at the original understanding of the Constitution; and he says that affirmative action programs have to be struck down. He's treated as a Scalia partner, but Scalia is, for all his bravado, interested in precedent. Thomas doesn't seem to be interested in precedent.

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