Brace yourselves for the counterrevolution

  Consider the matter of Row v. Wade.

No, that’s not a misspelling. We’re talking fishing here, and the never-ending debate, raged with greatest fervor along rivers in the Rocky Mountain West, over whether the best way to catch fish is from a boat or while walking through the water.

And just what does this have to do with the re-election of President George W. Bush?

Think of it this way. As any experienced angler knows, whether rowing or wading, the three requirements for catching fish in a river are: (a) the right equipment; (b) the right technique; and (c) a river with fish in it.

And as the presidential campaign chugged to its conclusion, there were increasing reports out of the West that many anglers with Republican habits were reconsidering their options out of fear that four more years of Bush’s natural resource policies could deplete their favorite rivers of trout, salmon and steelhead. Some hunters, noting the oil and gas wells springing up amongst the elk, were having similar thoughts.

Obviously, there were not enough of these folks to make a difference. But just as obviously, the Bush campaign knew about them. Otherwise the administration would not have announced shortly before the election that it wouldn’t mess around with oil and gas exploration in Montana’s Rocky Mountain Front after all (HCN, 10/25/04: Election-year environmentalism). (Let’s see how long that lasts; these decisions are reversible.)

Still, the consequences of this election on the natural world are clear: There will be more drilling, logging, mining, grazing, snowmobiling, motorboating, and ATVing on public and private land and water in the West.

But that’s just in the short run. It’s not clear that the incremental increase in these activities will be any more than the increase over the last four years. And the thing about incremental increases is that they are incremental. Some are even reversible. Almost all can be fought one project at a time. You win some. You lose some. Sometimes you get rained out. Life goes on.

How much harm could three judges do?

But now, let’s think for a moment about the possibility of not-such-incremental change. Let’s ponder the possibility of a revolution that would render moot the debate between row and wade because there might be no fish in the river.

Here Row v. Wade intersects with Roe v. Wade, and if that sounds far-fetched, pay attention. Bush’s re-election gives him four more years to appoint judges from the district level to the Supreme Court, where at least three justices are likely to leave during the impending quadrennium.

In the Senate, and in the press, most attention will center on whether the new justices would overturn Roe, the 1973 decision guaranteeing women the right to abortion. Many of President Bush’s supporters want Roe reversed. But to some conservatives, all the attention on abortion will serve as a convenient cover for what they really want: the return of "the constitution in exile."

That was the term used by Judge Douglas Ginsberg, the conservative who President Ronald Reagan tried to put on the Supreme Court, in a 1995 article calling for a constitutional counterrevolution. He wanted to return to the pre-New Deal days, when, as he sees it, the Constitution prohibited the federal government from doing much of what it does today — regulating wages, hours, working conditions, air and water pollution, and the like.

Ginsberg, now a judge on the Court of Appeals in Washington, is hardly alone. In his 2003 book, Restoring the Lost Constitution: The Presumption of Liberty, Boston University Law Professor Randy Barnett argues that the Supreme Court has been misinterpreting the Constitution for years, reducing the protections originally granted to property owners against government intrusion, and expanding the scope of the Commerce Clause, the foundation for most government regulatory activity.

A Supreme Court majority inspired by the views of Ginsberg and Barnett could put that constitutional counterrevolution into effect. In theory at least, this could mean nullification of the Clean Air, Clean Water, and Endangered Species acts, at least as they applied to private property. In fact, the constitutionality of almost all environmental laws would be at risk. Arguments over the best methods for fishing, hunting, wildlife viewing and backpacking could become relics of a distant past.

Calling all hunters and anglers...

OK, all this is the extreme scenario, hardly about to become reality in the next few years. It won’t be easy to make it reality even over the longer haul, in the view of Bill Curtiss, one of the senior attorneys at Earthjustice.

Laws such as the Endangered Species Act have been before the Supreme Court in the recent past, Curtiss says, with no justice suggesting they were invalid. The doctrine of stare decisis ("to stand by that which is decided") and "the politics of how do you explain the last decision," act as disincentives for even the most ideological justices to overturn long-standing judgments.

A greater danger, Curtiss said, would be "nibbling away" at sections of laws that the Court has never confronted. Even this gradual approach would present "a very, very serious matter," Curtiss says, as part of "an ideological drive to rewrite the Constitution in a manner that is in no way democratic."

It was the democratically elected Congress that passed the regulatory laws, after all, asserting that it was acting pursuant to the Constitution’s Commerce Clause. And there was no public reaction against that assertion. Nor is there much evidence that anything like a majority of today’s electorate wants to roll back the government’s social, economic, and environmental regulations. Taking comfort in such evidence, some environmentalists think the Bush administration will proceed slowly in its pro-production and anti-regulation efforts.

In fact, in November, when citizens got to vote on purely environmental issues, they often leaned pro-environment (HCN, 11/22/04: Election day surprises in the schizophrenic West). And environmentalists are predicting a strong public reaction against the administration’s environmental policies.

But environmentalists have been predicting such a reaction for the last four years. They’ve been wrong. It could yet happen, but maybe not until more of those Republican-leaning anglers and hunters begin to wonder what happened to the elk and trout.

The author writes about — and teaches — politics in Vermont.