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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