Erwin Chemerinsky

  • October 21, 2010
    The Conservative Assault on the Constitution
    Erwin Chemerinsky

    By Erwin Chemerinsky, founding dean of the University of California, Irvine School of Law and a preeminent scholar on constitutional law.
    Since Richard Nixon ran for President in 1968, conservatives have sought to change constitutional law in a conservative direction. To a large extent, in virtually every area of constitutional law, they have succeeded. The focus of my new book, The Conservative Assault on the Constitution, is to describe what has happened and how conservative presidents and justices have lessened constitutional protections and moved constitutional law significantly to the right.

    Between 1968 and 2009, Democratic Presidents appointed only two justices to the Supreme Court, Ruth Bader Ginsburg and Stephen Breyer, while Republican Presidents appointed a dozen justices. Many Republican-appointed justices - like Antonin Scalia and Clarence Thomas - are as conservative as any who have served on the Supreme Court. John Roberts and Samuel Alito have been everything that conservatives could have hoped for and liberals could have feared.

    That, of course, leaves Anthony Kennedy as the swing justice on the Court. But Kennedy, an appointee of President Ronald Reagan, is much more likely to side with the conservatives than with the liberals. Last year, there were 12 5-4 decisions split along ideological lines, with Roberts, Scalia, Thomas and Alito on one side, and Stevens, Ginsburg, Breyer, and Sotomayor on the other. Justice Kennedy sided with the conservatives in nine of these dozen cases and with the liberals in three. The year before, there were 16 ideologically divided 5-4 cases and Justice Kennedy sided with the conservatives in 11 of 16.

    The success of these justices in remaking constitutional law in a conservative direction must be understood as part of a larger conservative agenda. Because the Supreme Court decides cases one at a time, because not every case has come to a conservative result, and because Roe v. Wade has not been overruled, it is easy to underestimate the dramatic successes that conservatives have had.

    The focus of my book is to show what has happened across many areas of constitutional law. I examine six areas. Chapter 1 focuses on how a series of Supreme Court decisions in the 1970s, 1990s, and the last decade have led to schools that are increasingly racially separate and unequal.

  • May 11, 2010

    "Proposals like Sen. Joe Lieberman's to take away a suspect's citizenship put the nation on a dangerous path," writes UC Irvine School of Law Founding Dean Erwin Chemerinsky (pictured) in the Los Angeles Times. Chemerinksy, a frequent ACS participant, took to the pages of the Times amid persistent critiques of the federal response to an attempted bombing in Times Square, including a proposal by Sen. Lieberman to strip terrorism suspects of citizenship.

    Chemerinsky writes:

    Those who commit terrorist acts can and should be severely punished; stripping them of their citizenship and failing to inform them of their right to remain silent serve no additional purpose.

    There is no reason to believe that advising terrorism suspects of their rights obstructs effective law enforcement. Take the case of Faisal Shahzad, accused of placing the car with explosives in Times Square. He spoke to authorities before being given his Miranda warnings, and continued to speak after. In fact, police have demonstrated over decades that they can function effectively even when suspects are advised of their rights. If there is a public safety emergency, current law permits questioning without Miranda warnings. Those determined not to speak will refuse to do so whether or not they have been informed of their rights.

  • April 28, 2010

    The new Arizona law criminalizing being undocumented and permitting private citizens to sue for lax enforcement is likely to be struck down in court, according to The New York Times.

    The Times reports:

    "The law is clearly pre-empted by federal law under Supreme Court precedents," said Erwin Chemerinsky, an expert in constitutional law and the dean of the University of California, Irvine, School of Law.

    Since the 1800s, the federal government has been in charge of controlling immigration and enforcing those laws, Professor Chemerinsky noted. And that is why, he argued, Arizona's effort to enforce its own laws is destined to fail.

    But even some experts who say they are troubled by the law said it might survive challenges.

    "My view of the constitutional question is that it is unconstitutional," said Hiroshi Motomura, co-author of leading casebooks on immigration law and a professor at the University of California, Los Angeles, School of Law. "But it's a far cry from predicting empirically what a judge who actually gets this case will do."


    The tests will come soon enough. Civil rights organizations are already planning their suits, said Lucas Guttentag, director of the immigrants' rights project of the American Civil Liberties Union. The law, Mr. Guttentag said, "will increase racial profiling and discrimination against Latinos and anyone who might appear to be an immigrant."

  • January 4, 2010

    After extensive dabate, Congress seems on the verge of passing health care legislation. But courts may offer determined opponents their last avenue of attack.

    Last week, Florida Attorney General Bill McCollum suggested that his state may challenge the constitutionality of individual health insurance mandates in court. McCollum, who is running for the Florida governor's mansion this year, announced his concerns about health care reform on the heels of an ACS Issue Brief assessing its constitutionality. 

    The Issue Brief was authored by Simon Lazarus, public policy counsel at the National Senior Citizens Law Center and a former member of President Jimmy Carter's domestic policy team. Lazarus argues that individual insurance mandates are "lawful and clearly so - pursuant either to Congress' authority to ‘regulate commerce among the several states,' or to its authority to ‘lay and collect taxes to provide for the General Welfare.'" Lazarus writes that arguments against the constitutionality of individual mandates "appear unlikely to gain traction with the current Supreme Court, and, indeed, represent approaches and theories that have been repudiated by justices across the Court's ideological spectrum."

  • December 24, 2009
    The Senate overcame a raft of attempts by conservatives to kill health care reform, passing this morning on a 60-39 vote a "landmark" health care reform bill, as dubbed by The Washington Post.

    Conservative pundits and advocates, including the Heritage Foundation and the Federalist Society loudly argued that aspects of the legislation, including the mandate for individuals without health care coverage to purchase it would prove unconstitutional. But many constitutional law experts and progressive advocates countered that Congress has the constitutional authority to pass such policy. On the eve of the vote, ACS published an Issue Brief by longtime public policy advocate and Washington, D.C. attorney Simon Lazarus refuting arguments that individual health care mandates are constitutionally suspect.

    Lazarus, the public policy counsel at the National Senior Citizens Law Center (NSCLC) and the former Associate Director of President Jimmy Carter's White House Domestic Policy Staff, maintained that the mandate "is lawful and clearly so - pursuant either to Congress' authority to ‘regulate commerce among the several states,' or to its authority to ‘lay and collect taxes to provide for the General Welfare.' He concluded, in part, that arguments to the contrary "have not basis in law, neither in the grants of authority to Congress in Article I nor in limitations on that authority in the Bill of Rights, nor in the case-law interpreting these provisions."

    After the vote on health care reform, in which senators rejected arguments over the constitutionality of the mandates, President Obama hailed the Senate bill as "the most important piece of social legislation since the Social Security Act," The New York Times reported.

    See Lazarus' Issue Brief, "Mandatory Health Insurance: Is it Constitutional?" here.