The Siegan Nomination; Rolling Back the Constitution

By Schwartz, Herman | The Nation, July 4, 1987 | Go to article overview

The Siegan Nomination; Rolling Back the Constitution


Schwartz, Herman, The Nation


THE SIEGAN NOMINATION

Rolling Back The Constitution

Once again, the Reagan Administration has comeup with a totally unsuitable candidate for a Federal Court of Appeals appointment. Last year it was Daniel Manion, a lawyer in South Bend, Indiana, who could not write a respectable legal brief and was enthusiastic about the John Birch Society. This year President Reagan has nominated Bernard Siegan to the United States Court of Appeals for the Ninth Circuit, which covers California, Washington, Oregon, Idaho, Nevada, Arizona, Alaska, Montana, Hawaii, Guam and the Northern Marianas. Siegan, a law professor at the University of San Diego and a former colleague of Attorney General Edwin Meese 3d, condemns almost everything the Supreme Court has done in the past 170 years. The Senate Judiciary Committee will soon take up the nomination.

Siegan first made his mark because of his unconventionalviews on how the Court should deal with economic regulation. Between 1897 and 1937, the Supreme Court struck down almost 200 state and Federal laws against antiunion discrimination, child labor, excessively long hours, wage regulation and other economic and social measures. The public resentment against those decisions was so strong that Franklin D. Roosevelt made them a major campaign issue in 1936, and the Court soon switched its direction. Since then, no Justice and very few legal scholars have suggested that the Court go back to second-guessing Congress and the state legislatures on economic and social regulation. But Siegan is calling for a return to the good old days.

How can an Administration purportedly committed to judicialrestraint pick so blatant a judicial activist? President Reagan, speaking to a group of United States Attorneys on October 21, 1985, said he would appoint lawyers "who understand the danger of short-circuiting the electoral process and disenfranchising the people through judicial activism.' Yet Siegan justifies court invervention on behalf of "economic civil rights,' because he thinks "many legislators do not have the knowledge, understanding, incentive, or time to create efficient and effective statutes that will not unnecessarily deprive people of their liberties.'

And what of the Administration's much-proclaimed championshipof states' rights? If Siegan's ideas were adopted, the most frequent casualties of his brand of judicial activism would be thousands of state and local laws on licensing, zoning, safety, rent control and other matters.

Siegan's new book, The Supreme Court's Constitution,which will be published this month, provides the answer: Siegan is an interventionist only when it comes to protecting the property of the "haves.' In all other respects, he is a fundamentalist who believes in judicial passivity. In just 240 pages, he manages to condemn the Supreme Court's decisions on race and sex discrimination, separation of church and state, Congressional power, libel, free speech and the issuance of paper money; he also strikes glancing blows at its rulings on the Constitution's commerce clause and criminal procedure. All those rulings, he claims, "erode the rule of law' and are worthy of impeachment.

The bizarre quality of Siegan's views is most apparent inhis discussion of the 1954 Brown v. Board of Education desegregation ruling. He draws a distinction between "civil rights' (the "natural rights' of life, liberty and property) and "political rights' (which flow from government activity). The latter include matters of education, jury service, voting and anything to do with government spending or administration. The Fourteenth Amendment, which prohibits discrimination, protects only civil rights, he says, and not political rights; thus the Brown case was decided on the wrong grounds.

The Court's repudiation of school segregation is now holywrit, however, and no politically sensitive writer dares attack that publicly, no matter what his private views. …

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