Tuesday, 8 February 2011


I've been reading an interesting, though disturbing book, by Erwin Chemerinsky, called "The Conservative Assault on the Constitution". His thesis is that in the USA, Conservative judges have undermined constitutional freedoms (to privacy; to 'habeas corpus'; to protection against abuses by the Government and the (in this case inappropriately named) forces of law and order) - weakened rights arising from the 1st & 8th amendments - given a wholly new meaning to the 2nd Amendment - all for ideological reasons. It's a challenging book - and all American Law students ought to consider and debate its assertions.

For British law students - it highlights the fact that merely having a "Constitution" doesn't protect anything (the Soviet Constitutions are good examples of that). Rights must be enforceable in the courts (which requires access to justice) and enforced by the Judges. This book highlights the myth that judges are merely neutral umpires - their approach will be determined by their own ideology.

Chemerinsky makes some points worth reflecting upon. He says

"Most constitutional issues never occured to the framers. And even when there was discussion of such a question in 1787, there often was a sharp difference of opinion. [he gives the example of disputes between Madison and Hamilton - two of the key authors and defenders of the Constitution]"

"A second problem with trying to follow the original intent of the framers is that the world of 1787, or of 1868 when the Fourteenth Amendment [Equal Protection - amongst other things] was adopted, is so vastly different from our own that it often would be unthinkable to be bound by the original understandings of the earlier time."

Much material for thought, discussion...and essays on the advantages/disadvantages of a written constitution here!