Monday, August 22, 2005

Chemerinsky Misleads in Criticism of Thomas

Los Angeles Daily Journal, August 19, 2005, at 7

Professor Erwin Chemerinsky again, in his zeal for advancing the liberal agenda, and possibly derailing the John Roberts nomination, misleads the readers. (“Thomas, Unbridled, Would Gut 200 Years of Precedent,” Aug. 5 Daily Journal)

First, he asks, “whether Roberts will be a mainstream conservative in the mold of Sandra Day O’Connor or another vote for Thomas’ more-extreme views.” Roberts could fall somewhere in between, such as a Rehnquist or a Scalia. Or, God-forbid, he could turn out to be another Souter.

Next, Chemerinsky asserts, “Thomas believes that the Establishment Clause was meant solely to keep the federal government from creating churches that would rival existing state churches.” Thomas is right on this point. Early on, in Barron v. Baltimore, 32 U.S. 243 (1833), the Supreme Court announced that the Bill of Rights applied only to the federal government.

In the words of Chief Justice Marshall, “[t]hese amendments demanded security against the apprehended encroachments of the general government – not against those of the local governments.”

Not until after the Civil War did the Supreme Court, through the doctrine of selective incorporation, started reading most of the protections of the Bill of Rights into the Due Process Clause of the 14th Amendment. I think scholars will disagree forever on whether that was the intent of the Framers of the Civil War Amendments.

Chemerinsky, however, is not addressing the validity of these arguments for the Establishment Clause. He simply makes an adverse-possession argument, claiming that this so-called wall of separation was made applicable to the states so long ago (almost 60 years ago) and it was done so in such a hostile, open and notorious matter that to question its validity now would be radical. And he tends to make this argument about every issue that Thomas may want revisited.

Adverse-possession arguments belong in discussions of property, not constitutional law.