This excerpt originally appeared on Progressive Book Club. The following is excerpted from Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America by Cass Sunstein.
Suppose the Supreme Court of the United States suddenly adopted <judicial> fundamentalism, and understood the Constitution in accordance with specific views of those who ratified its provisions. What would happen? The consequences would be extremely radical. For example:
1) Discrimination by states on the basis of sex would be entirely acceptable. If a state chose to forbid women to be lawyers or doctors or engineers, the Constitution would not stand in the way.
2) The national government would be permitted to discriminate on the basis of race. The Equal Protection Clause of the Fourteenth Amendment is the Constitution’s prohibition on racial discrimination—and by its clear language, it applies only to state governments, not to the federal one. Honest fundamentalist have to admit that according to their method, the national government can segregate the armed forces, the public schools, or anything it chooses. In fact, the national government could discriminate against African-Americans, Hispanics, and Asian-Americans whenever it wanted.
3) The national government could certainly discriminate against women. If it wanted to ban women from the U.S. Civil Service, or to restrict them to clerical positions, the Constitution would not be offended.
4) State governments would probably be permitted to impose racial segregation. If Brown v. Board of Education is right, it is either because perfectionism deserves to have its day(s), or because minimalism justified the Court’s decision.
5) State governments would be permitted to impose poll taxes on state and local elections; they could also violate the one-person, one-vote principles. On fundamentalist grounds, these interferences with the right to vote would be entirely acceptable. In fact state governments could do a great deal to give some people more political power than others.
6) The entire Bill of Rights might apply only to the national government, not the states. Very possibly, states could censor speech of what they disapproved, impose cruel and unusual punishment, or search people’s homes without a warrant. There is a reasonable argument that on fundamentalist grounds, the Court has been wrong to read the Fourteenth Amendment to apply the Bill of Rights to state governments.
7) Almost certainly, states could establish official churches.
8) The Constitution would provide far less protection than it now does to free speech. There is a plausible argument that on the original understanding, the federal government could punish speech that is deemed dangerous or unacceptable, so long as it did not ban such speech in advance, even if this view is not extreme, as I believe that it is, there is a legitimate argument that on the original understanding, the government could regulate libelous speech, blasphemous speech, and commercial advertising.
9) Compulsory sterilization of criminals would not offend the Constitution. The government could ban contraceptives or sodomy. There would be no right of privacy.
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