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.

High Country News Classifieds
  • EXECUTIVE DIRECTOR
    Forever Our Rivers Foundation is searching for a driven and creative leader to build a movement, conserving and restoring America's rivers by helping customers find...
  • DEPUTY DIRECTOR
    Friends of Cedar Mesa is hiring a Deputy Director/COO who will have the overall responsibilities of general program management, staff management, financial & budget management,...
  • CUSTOMER SERVICE ASSISTANT - (PART-TIME)
    High Country News, an award-winning media organization covering the communities and environment of the Western United States, seeks a part-time Customer Service Assistant, based at...
  • RURAL ACREAGE OUTSIDE SILVER CITY, NM
    Country living just minutes from town! 20 acres with great views makes a perfect spot for your custom home. Nice oaks and juniper. Cassie Carver,...
  • COMMUNICATIONS AND OUTREACH ASSOCIATE
    Communications and Outreach Associate Position Opening: www.westernlaw.org/communications-outreach-associate ************************************************* Location: Western U.S., ideally in one of WELC's existing office locations (Santa Fe or Taos, NM, Helena,...
  • OFFICE ADMINISTRATOR AND BOOKKEEPER
    Posted: July 19, 2021 Application deadline: August 27 or until position is filled. Western Colorado Alliance for Community Action is seeking a fulltime Office Administrator...
  • COMMUNITY ORGANIZER
    Posted: July 15, 2021 Application deadline: August 21, 2021 or until position is filled Western Colorado Alliance for Community Action is seeking three full time...
  • A FIVE STAR FOREST SETTING WITH SECLUSION AND SEPARATENESS
    This home is for a discerning buyer in search of a forest setting of premier seclusion & separateness. Surrounded on all sides by USFS land...
  • CARPENTER WANTED
    CARPENTER WANTED. Come to Ketchikan and check out the Rainforest on the coast, HIke the shorelines, hug the big trees, watch deer in the muskeg...
  • AUDIENCE ENGAGEMENT EDITOR
    High Country News (HCN) seeks an audience editor to attract and acquire new audiences and deepen engagement with them - in our newsletters, on our...
  • COMMUNITY MARKETER
    High Country News (HCN) is looking for a Community Marketer to build and strengthen relationships between HCN and other organizations and individuals, with the aim...
  • FINANCE & OPERATIONS MANAGER
    Job Announcement: Finance and Operations Manager Announcement date: July 16, 2021 Applications will be reviewed on an ongoing basis and first review will begin: August...
  • DEVELOPMENT DIRECTOR
    Job Announcement: Development Director Announcement date: July 16, 2021 Applications will be reviewed on an ongoing basis and first review will begin: August 9, 2021...
  • HECHO POLICY AND ADVOCACY MANAGER
    Hispanics Enjoying Camping, Hunting, and the Outdoors (HECHO) was created in 2013 to help fulfill our duty to conserve and protect our public lands for...
  • HECHO NEW MEXICO SENIOR FIELD COORDINATOR
    Hispanics Enjoying Camping, Hunting, and the Outdoors (HECHO) was created in 2013 to help fulfill our duty to conserve and protect our public lands for...
  • IDAHO STATE DIRECTOR
    The Wilderness Society is seeking a full time Idaho State Director who will preferably be based in Boise, Idaho. This position is part of our...
  • CAUCASIAN OVCHARKA PUPPIES
    Strong loyal companions. Ready to protect your family and property. Proven against wolves and grizzlies. Imported bloodlines. Well socialized.
  • DEPUTY DIRECTOR
    The Nature Conservancy in Alaska is dedicated to saving the lands and waters on which all life depends. For more than 30 years, TNC has...
  • STAFF ATTORNEY, CLIMATE AND ENERGY PROGRAM
    STAFF ATTORNEY POSITION OPENING https://westernlaw.org/career-opportunity-climate-energy-staff-attorney/ ************************************************** Position Title: Climate and Energy Program Staff Attorney Reports to: Climate and Energy Program Director Location: Helena, Montana; other...
  • STAFF ATTORNEY, WILDLANDS AND WILDLIFE PROGRAM
    STAFF ATTORNEY POSITION OPENING https://westernlaw.org/career-opportunity-wildlands-staff-attorney/ ************************************************** Position Title: Wildlands and Wildlife Program Staff Attorney Reports to: Wildlands and Wildlife Program Director Location: Portland or Eugene,...