Consider the matter of Row v. Wade.
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
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.
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.)
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
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
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
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
Calling all hunters and
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
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
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
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.
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.