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Posted at 1:30 PM ET, 12/23/2010

How rights and freedoms erode

By Erwin Chemerinsky
Guest Blogger

About this blog: Resistance to Civil Rights reforms in the 1960s launched what Erwin Chemerinsky sees as a conservative move to alter basic constitutional freedoms. In “The Conservative Assault on the Constitution,” recently released by Simon & Schuster, Chemerinsky shows how an increasingly conservative Supreme Court has chipped away at constitutional principles that protect our rights and foster equality. Chemerinsky, a Harvard Law grad and the founding dean of the University of California, Irvine Law School, demonstrates that decisions by a conservative court over the past 40 years have affected many aspects of American life, including privacy, marriage, free speech, religion and treatment under criminal law. Here, he outlines the history of the conservative ascendancy and its effects.

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Since Richard Nixon ran for president in 1968, every Republican president has sought to remake constitutional law in a conservative direction. To a large extent, conservatives have succeeded.

Between 1968 and 2009, Republican presidents appointed 12 justices to the Supreme Court, while Democratic presidents appointed only two new justices. These Republican appointees include Antonin Scalia, Clarence Thomas, John Roberts and Samuel Alito, who are among the most conservative justices to serve on the Supreme Court in the past 75 years.

The extent of the conservatives’ success in remaking constitutional law is often underestimated. The cases come down one at a time and not every decision is a conservative victory.

Roe v. Wade has never been overruled. Yet, there is no doubt that conservatives have succeeded in overturning long-standing principles of constitutional law and lessening both freedom and equality in American society.

Perhaps the area of the greatest change is in the rights of criminal defendants. In recent years, the Supreme Court has lessened all of our protection from illegal police searches and arrests by holding that violations of the Fourth Amendment do not require exclusion of evidence so long as the police acted in good faith or were only negligent in their misconduct.

Congress and the Supreme Court have both greatly restricted access to the federal courts by those who claim to have been unconstitutionally convicted and file petitions for habeas corpus. The result is undoubtedly that innocent people will remain unjustly incarcerated and perhaps even put to death.

The Court has dramatically cut back on the protections of the First Amendment. Government actions that significantly burden religion no longer can be challenged as violating the “free exercise” of religion unless it can be shown that that was the government’s intent. The conservative majority on the Court has greatly lessened, and may soon eliminate, the notion of a wall separating church and state.

In a series of decisions, the Court has sharply decreased the Constitution’s protection for free speech, such as in holding that there is no First Amendment protection for the speech of government employees on the job in the scope of their duties.

Similarly, the Court has fostered public schools that are increasingly separate and unequal; by every measure, each year, American public schools are more racially segregated and far more is spent in predominately white suburban schools than in inner-city schools that are overwhelmingly comprised of students of color. The Supreme Court has held that even great disparities in school funding do not violate the Constitution, and it has made it very difficult for courts or school boards to take actions to successfully desegregate public schools.

All of these decisions have been 5-4, divided along ideological lines, and with the conservatives in the majority. Ironically, the areas of greatest expansion of rights in recent years have been the Court’s creation of a First Amendment right for corporations to spend unlimited amounts of money in election campaigns and the Court’s recognition for the first time in American history of a Second Amendment right of individuals to possess firearms for personal security.

The Court’s conservative majority can be understood far more by reading the 2008 Republican platform than by studying The Federalist Papers.

The Constitution affects all of us, often in the most intimate and important aspects of our lives. The Court’s conservative majority has lessened all of our liberties and created significant barriers to having a more equal and just society.

By Erwin Chemerinsky  | December 23, 2010; 1:30 PM ET
Categories:  Guest Blogger  | Tags:  erosion of rights and freedoms; conservative supreme court  
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Comments

And how is the Supreme Court's recognition of the 2nd Amendment intent for the individual freedom to keep and bear arms an 'erosion' of our freedoms?

Answer; It isn't... Going in a conservative direction, to include the advocacy of smaller, less intrusive government actually adds to our freedoms and constitutional rights, rather than eroding them.

Posted by: honorswar26 | December 23, 2010 2:37 PM | Report abuse

"Going in a conservative direction, to include the advocacy of smaller, less intrusive government actually adds to our freedoms and constitutional rights, rather than eroding them." You and I see a different world. How is the increasing Defense fraction (military/industrial) small and less intrusive? How is "Homeland Security" different than "defense of the fatherland"?
Pal, your words are as hollow as the Cheney/Bush/Obama permanent war machine propaganda. Question Authority.

Posted by: citizen625 | December 23, 2010 5:24 PM | Report abuse

...not to mention Huckabee's stated seditious intent to overthrow the Constitution for his twisted, Leviticus cherry-picked version of "God's Standards"...

Posted by: areyousaying | December 23, 2010 6:10 PM | Report abuse

And we are to believe the left is for freedom? Roe vs Wade takes away a human's right to live because this human is unwanted by another human.

Or how about mountains of regulations and confiscatory taxes on business.

Or the right to self defense.

The left even wants thought crime. Once it is a crime to have a thought while committing a crime, how long before the thought is illegal?

Or how about that when GWB was in office wiretapping certain phone conversations was an assault on our liberties. Now Obama does the same and almost no one on the left complains.

So get off your high horse Erwin. The left doesn't care about freedom.

Posted by: Activist45 | December 24, 2010 9:38 AM | Report abuse

The trashing of Constitutional rights by the Federal Government has indeed been appalling. But it started further back than 75 years.

Abraham Lincoln's War of Northern Aggression was the first major assault on American freedom, slaughtering as he did, more Americans than have died in any other war - not to stop slavery - but to preserve and expand federal power, enslaving the South as customers of Northern industrial production.

The next major attack on the Constitution was under FDR, who threatened the Supreme Court with "court packing" if the Court did not rule as he directed. From that era came "Wickard v. Filburn" - a notoriously inane decision that effectively says almost everything is subject to Federal Control (even growing wheat on your own farm for your own use.).

Since Wickard, the Federal Government has metastasized into an oozing cancer on the American People. For the past 40 years, the Federal Government has been sucking the life blood of generations not yet born, spending money like an out-of-control drunk.

Only in the past two years have we begun to see the cost of too much government. But anyone who thinks the worst is behind us does not understand the gravity or the depth of the Federal Government's corruption and fraud.

In the final analysis, voters have only themselves to blame for being too disinterested... or too stupid... to see what was being done to them. As arbiters at the gates of freedom, the Supremes bear a great deal of blame for infringements on civil rights: Including Bush's "Free Speech Zones", The "PATRIOT" Act, warrantless searches, Illegal wiretaps, bans on reimportation of American-made firearms, TSA and DHS abuses.. There seems to be no end to the unconstitutional acts the Supreme Court has sanctioned in the name of expanding government power.

But it's not a "conservative versus liberal" dynamic. Does anyone think for a moment that the liberals won't support Obama's sweeping expansion of Federal power in support of the "Health Care" bill?

The strip searches conducted in the name of "security" at airports portray our future if the power of the Federal Government is not checked.

Can we depend on the Supreme Court to do this?

Liberal or Conservative, the answer is "no". The power (and the paychecks) of the Supreme Court come from the Federal Government. It has long been owned by those who would create a new Police State.

Reread "1984" by George Orwell. Recognize that Orwell's biggest mis-prognostication was the date. Titled, "2010", he would have been recognized not only as an author, but as a seer.

Posted by: bambiB | December 24, 2010 10:25 AM | Report abuse

The trashing of Constitutional rights by the Federal Government has indeed been appalling. But it started further back than 75 years.

Abraham Lincoln's War of Northern Aggression was the first major assault on American freedom, slaughtering as he did, more Americans than have died in any other war - not to stop slavery - but to preserve and expand federal power, enslaving the South as customers of Northern industrial production.

The next major attack on the Constitution was under FDR, who threatened the Supreme Court with "court packing" if the Court did not rule as he directed. From that era came "Wickard v. Filburn" - a notoriously inane decision that effectively says almost everything is subject to Federal Control (even growing wheat on your own farm for your own use.).

Since Wickard, the Federal Government has metastasized into an oozing cancer on the American People. For the past 40 years, the Federal Government has been sucking the life blood of generations not yet born, spending money like an out-of-control drunk.

Only in the past two years have we begun to see the cost of too much government. But anyone who thinks the worst is behind us does not understand the gravity or the depth of the Federal Government's corruption and fraud.

In the final analysis, voters have only themselves to blame for being too disinterested... or too stupid... to see what was being done to them. As arbiters at the gates of freedom, the Supremes bear a great deal of blame for infringements on civil rights: Including Bush's "Free Speech Zones", The "PATRIOT" Act, warrantless searches, Illegal wiretaps, bans on reimportation of American-made firearms, TSA and DHS abuses.. There seems to be no end to the unconstitutional acts the Supreme Court has sanctioned in the name of expanding government power.

But it's not a "conservative versus liberal" dynamic. Does anyone think for a moment that the liberals won't support Obama's sweeping expansion of Federal power in support of the "Health Care" bill?

The strip searches conducted in the name of "security" at airports portray our future if the power of the Federal Government is not checked.

Can we depend on the Supreme Court to do this?

Liberal or Conservative, the answer is "no". The power (and the paychecks) of the Supreme Court come from the Federal Government. It has long been owned by those who would create a new Police State.

Reread "1984" by George Orwell. Recognize that Orwell's biggest mis-prognostication was the date. Titled, "2010", he would have been recognized not only as an author, but as a seer.

Posted by: bambiB | December 24, 2010 10:25 AM | Report abuse

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