Was Ann Coulter Right? Some Realism about "Minimalism"

Article excerpt

INTRODUCTION

Ever since the Warren Court rewrote much of the Bill of Rights and the Fourteenth Amendment, there has been a debate within legal academia about the legitimacy of this judicial law making. (1) Very little popular attention was paid, at least in the last several decades, to this problem. More recently, however, the issue of the legitimacy of judicial law making has begun to enter the realm of partisan popular debate. This is due to the fact that Republicans controlled the White House for six years and a majority in the Senate for almost all of that time, that they have announced, as it were, a program of picking judges committed to adjudication rather than legislation, and finally, that the Democrats have, just as vigorously, resisted Republican efforts. Cass Sunstein, a professor at the University of Chicago Law School, (2) and now a visiting professor at Harvard Law School, (3) has written a provocative book purporting to be a popular, yet scholarly critique of the sort of judges President George W. Bush has announced that he would like to appoint. Is Sunstein's effort an objective undertaking, or is it partisan politics with a thin academic veneer? If Sunstein's work (and that of others on the Left in the academy) is something more (or less) than it appears to be, can the work of an unabashedly partisan popular commentator help us to figure out what is happening in constitutional jurisprudence? In what follows, I will first review Ann Coulter's critique of "liberalism," and then I will proceed to suggest that Coulter's criticism might well be applied to Sunstein's approach to constitutional interpretation, insofar as it seems more politically partisan than objectively valid. I will conclude by suggesting that the "radicals" whom Sunstein excoriates are actually those most faithful to our constitutional tradition.

I. ANN COULTER ON LIBERALS VS. CONSERVATIVES

Ann Coulter is one of the most delightfully provocative pundits currently pontificating. She has gored more than the usual number of sacred oxen and is joyously unafraid to speak her mind in a political climate that--at least in the case of what is now called the mainstream media--is not kind to iconoclastic conservatives. Coulter is most infamous, perhaps, for her suggestion that the way to defeat what President George W. Bush now calls "Islamic fascists" (4) and what others call "Islamofascism" (5) is for the United States to "kill their leaders and convert them to Christianity," (6) and for her observation that some ostensibly grieving 9/11 widows actually seemed to be taking too much joy at the deaths of their husbands. (7) Coulter nevertheless has an extraordinary ability to unmask hypocrisy. In particular, she took aim at liberals in her 2002 book Slander (8) and suggested that their principal means of operation was to vilify conservatives rather than seriously advancing arguments to rebut conservative positions on social issues. As she put it:

      Liberals dispute slight reductions in the marginal tax rates as
   if they are trying to prevent Charles Manson from slaughtering baby
   seals. Progress cannot be made on serious issues because one side
   is making arguments and the other side is throwing eggs....
   Prevarication and denigration are the hallmarks of liberal
   argument. Logic is not their metier. Blind religious faith is.

      The liberal catechism includes a hatred of Christians, guns, the
   profit motive, and political speech and an infatuation with
   abortion, the environment, and ... "affirmative action"[]. Heresy
   on any of these subjects is, well, heresy. The most crazed
   religious fanatic argues in more calm and reasoned tones than
   liberals responding to statistics on concealed-carry permits. (9)

Or, again:

      The spirit of the First Amendment has been effectively repealed
   for conservative speech by a censorious, accusatory mob. Truth
   cannot prevail because whole categories of thought are deemed
   thought crimes. …