A sleeping green giant may yet awake

 

Consider the matter of Row v. Wade, and no, that’s not a misspelling. We’re talking fishing here, and the never-ending debate over whether the best way to catch fish is from a boat or while walking through the water.

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

As any experienced angler knows, whether rowing or wading, the three requirements for catching fish in a river are: the right equipment, the right technique and a river with fish in it.

As the presidential campaign chugged to its conclusion, there were increasing reports out of the West that anglers with Republican habits were reconsidering their options out of fear that four more years of the Bush administration could deplete their favorite rivers of trout, salmon, steelhead and other gamefish. 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 (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 ATV-ing on land and water, both public and private, in the West.

It’s not clear that the incremental increase in these activities will be any more than the increase over the last four years. Yet during that time, Row v. Wade intersects with Roe v. Wade, because 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.

In the Judiciary Committee, on the Senate floor, and in the press, most attention will center on whether the new justices would overturn Roe, the 1973 decision guaranteeing women a right to abortion. Many of President Bush’s supporters want Roe reversed. But what some conservatives really yearn for is 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.

All this is the extreme scenario. 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 Earth Justice in Oakland, Calif.

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, acts as a disincentive for even the most ideological justices to overturn long-standing judgments. A greater danger, Curtiss says, would be "nibbling away" at sections of laws that the Court had not earlier confronted.

Even this more gradual approach would present "a very, very serious matter," Curtiss says, because it would be part of "an ideological drive to reqwrite the Constitution in a manner that is in no way democratic." A democratically elected Congress enacted the regulatory laws, after all, and major tinkering can be perilous. There might just be a pro-environment backlash -- particularly if Republican-leaning anglers and hunters begin to wonder what happened to the elk and trout.

Jon Margolis is a contributor to Writers on the Range, a service of High Country News (hcn.org). A former Chicago Tribune political reporter, he covers the Capitol from his home in Vermont.

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