Sometimes I think my criticisms of the conservative mainstream are a little too sour. But then I read something like this and realize I don't go nearly far enough:
Conservatives need to win in the courts, and we have a much better shot at doing so by embracing the living Constitution and other legal approaches proven to be so successful for the Left.
Then there's this:
Conservatives regularly praise the system of federalism. But when push comes to shove, it's not always a particularly good system. Consider this: George W. Bush arguably ignored federalism when he went to the U.S. Supreme Court to stop the Florida Supreme Court's activism. How many conservatives think it would have been better for the nation to have had the judicial activism of the Florida Supreme Court win the day in the interest of deferring to the states?
Conservatives should not support separation of powers or federalism or any legal doctrine for its own sake.
These paragraphs are taken from a new book — Disrobed: the New Battle Plan to Break the Left's Stranglehold on the Courts — by Mark W. Smith, a practicing trial lawyer and vice president of the New York City chapter of the Fedearlist Society. Smith decorates his power play with lots of cheap talk about real rights, including the 2nd Amendment and property rights. But as his remarks on federalism suggest, what's at the bottom of his agenda is a desire to increase Republicans' political power, as well as the federal government's. Significantly, he treats the 2nd Amendment chiefly as if it were a crime-control measure; one need hardly wonder on which side of the barricades Smith would be found should the right to keep and bear arms conflict with national security.
Perhaps unsurprisingly, our conservative trial lawyer is also for liberal use of litigation in pursuit of his agenda: one chapter of the book bears the title "Affirmative Action for Conservatives" and subtitle "Suing for True Diversity." In his opening pages, Smith tells us that he was at Justice Roberts's swearing in and took part in a conference call a few days later with "the White House team defending the president's [next] pick," Harriet Miers, so he's no mere marginal nut. His pernicious doctrines are pretty close to the center of power. And why wouldn't they be? They authorize right-thinking, right-wing Republicans to do anything they damn well please with the country.
On that theme, have a look at Gene Healy and Timothy Lynch's recent CATO study of "the constitutional record of George W. Bush," aptly titled "Power Surge." As the executive summary says:
President Bush has repeatedly sought to strip out the limits the document [i.e. the Constitution] places on federal power. In its official legal briefs and public actions, the Bush administration has advanced a view of federal power that is astonishingly broad, a view that includes
- a federal government empowered to regulate core political speech—and restrict it greatly when it counts the most: in the days before a federal election;
- a president who cannot be restrained, through validly enacted statutes, from pursuing any tactic he believes to be effective in the war on terror;
- a president who has the inherent constitutional authority to designate American citizens suspected of terrorist activity as "enemy combatants," strip them of any constitutional protection, and lock them up without charges for the duration of the war on terror— in other words, perhaps forever; and
- a federal government with the power to supervise virtually every aspect of American life, from kindergarten, to marriage, to the grave.
Given that the Bushite right has an even greater fondness for coercive measures and an even more pronounced thirst for expanding presidential power than the left, there's every reason to expect that "conservative" judicial activism will be far worse than the liberal kind we already have.