News Scrapbook 1986

U D h9lar Hews to Strict Line as Constitution Nears 200t v q r -:, ByJl · 'HA HT ,1 ,TmesStuffWnter placard on his back? An anti-democratic extremist <'VentatUSD. bla tmg from the past w1lh a v1 ion of a laissez faire Commissioners, including Sen. Edward M. Kenne- iety m which only lhe f1tt~ t survive? dy (D Mass l and Sen. Ted Stevens (R-Alaska) and o. This 1s Bernard S1egan, distinguished profes ·or author Phyllis Schlafly, will hold a closed door al the University of_fuln.J)iego School of Law-a busln ss sess10n today-a procedure auth rized m light soft-spoken scholar whose students describe •'ovember by a federal Judge who reJP.Cted a plea him a~ a canng, gentle man. This is a man who calls from a Ralph Nader-founded group that all its Milton Friedman, the mfluenttal economist, and meetings be public. Edwm Meese III. the attorney general of the United On Monday, the commission will conduct a public States, his friends. This 1~ a man who 1s under hearmg in USD's Camino Theatre from 8,30 a.m. to con derat1on for appointment to the US. 9th Circuit 12,30p.m. Representatives of the telev1s10n industry, Court of Appeals, the preeminent federal court m the the lnter10r Department, the Defense Department, West, and says he'd love to have the job. the American Bar Assn., San Diego's Constitution More to the pomt, Siegan, 61, is one of 23 members bicentennial comm1ss1on and even Moeaga Lulu, the of the Commission on the Bicentennial of the U.S. alter ey general of American Samoa, are scheduled Cor>stttution. The generally con~ervative-Jeaning to address the commission on plans for celebrating panel, chaired by Chief Justice Warren E. Burger, is the Constitution's birthday. charged with the task of planning for the 200th Ac vittes will center on Sept. 17, 1987, exactly 200 birthday party of America's essential document of year from the day that 40 of the nation's Founding aw. Fathers concluded a 4-month convention in Ph1la-

VJt,CECOMPAG () E / Loo AngtlcsTlme1 Bernard Siegan is one of a 23-member panel planning the Constitution's 200ttt birthday. I

delpl'1a and signed a document crafted "to form a Please see SCHOLAR, Page 10

The comm1s ion, formed last year. has gathered in • an Diego th1 weekend for its fifth meeting, a 2-day

Los Angeles, CA (Los Angeles Co) Times (San Diego Ed.) (Cir. D 50,010) (Cir. S 55,573)

tHtfiAR: Old School / pproach to Constitution

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Constitution might never have been rat1f1ed." Siegan came early to a fixation on politics and law The precocious child of lower-class parents, he grew up m Chicago, serving as the mayor of his grammar school and president of his high school class. He says he was a liberal until he enrolled in the University of Chica- go Law School. There, he butted heads with the free-market philos- ophy of the Chicago economists- Friedman and others, especially Aaron Director, a law professor who "asked questions my liberal thmkmg couldn't answer," Siegan said. The leftist moved rightward to almost libertarian politics, launch- ing a practice m land-use law underpinned by a conviction that government was stnpping citizens of their property rights and eco- nomic freedoms through zoning restrictions and excessive regula- tion. In the early 1970s, he studied the effects on land use of the absence of zomng in Houston, Tex. Where others found a clogged, ill-devel- oped city, Siegan concluded that development m Houston was more re ponsive to consumer demand and that rental prices were kept low as a result of the city's unusual pollct . His ideas are crystallized in a 1980 book, "Economic Liberties and the Constitution." In it, S1egan argues that for much of its history, the Supreme Court has contradict- ed the Founders' intent by judging economic freedom as somehow less protected than such rights as free- dom of speech, religion and the press. He calls for the court to give government action that infringes on economic rights the same strin- gent review it gives impairments of civil liberties, contending that such seminal American thinkers as Al- exander Hamilton and James Madi- son held economic freedom as es- sential to political freedom. Except for the penod from 1897 to 1937, when the high court regularly struck down impositions on economic rights, the justices often have let government tram- mel such freedoms, Siegan says. The results have been economic me!ficiency and injustice, he claims-results that continue as the court holds to its misguided path, despite public support for deregulation in the last decade. "Almost complete deference is given to the legislative branch, either Congress or the state legis- latures, so the court makes almost no effort to enforce the liberties of the individual when those liberties have been denied or deprived" Siegan said. ' His stance places hun at an extreme of American legal scholar- ship. "It's a fairly crankish posi- tion," said Mark Kelman, liberal Please see SCHOLA age 11

C ontlnu d from Page 1 m r p rlectlnon "P opl are gomg to b absolute- ly maz d com next eptember wh n this country Just explode with bt ntenmal ct1v1t1es," said Hon M nn. d puty director or the c mm1 10n Plan for th c lebrat1on are advancing Ju t as the debate over approarh to interpr ling the Con t1tuuon mov from the law chool to the front page. Mees h trad d words in public with upr me Court Ju tic Wilham Bren an and John Paul Stevens over the bounds of Jud1c1al act1v. 1 m "Or1gmal intent" I one agam buzzword to be reckoned with. 1egun' fasc111ation with the C nst tut1on, however, 1s nothing n w 'l h prof or, who has taught t U D Sine 1973, makes a career of campa1gnmg for a restoration of th rule of the found rs' mtent in con Utullonal Jaw Many people look on const1tu- 1on I Int rpr tat1on as a baseball g ne, ' 1egan said dunng an mter- v,ew recently at his La Jolla home. "They're not concerned as to whether 1t correct decision or an incorrect deci on It's 'Did we wm? or 'Did we ose?"' S1i-gan, though, ts generally a str1c construct1omst, a cholar who tu- to he. mm•1te of the Co 1tut1onal Convenuon and the records of congre s1o{Ull debate to vine what the Constitution's au- thor had mmmd. lh 1s a school of mterpretalion that has been m echpse, more or 1 • for generatrons. Most current member of the Supreme Court, legan says. subscribe to the "liv- ing Corsl!tut1on" school. whjch hOlds that "Judges should interpret th Constitution to accommodate th events and cond1l1ons of the d y." To S1egan, such thinking is abominable, 1f well-entrenched. hruggmg his shoulders, he notes sadly that Chief Justice John Mar- shall. a member of the Founding Fathers· generaton, wandered as early as !SHI from the path of strict construction to expand the powers of gov mment beyond anything the Constitution's authors intend- ed. arshall authored the 1819 deci- sion, M'Culloch vs. Maryland- tudied m ehools as a turrung pomt tn early American history-that said Congress had the power to e tabh h a Bank of the United States, though the Constitution mark no prov1s1on for such an m titutton. H1 opinion "generally gave the benefit of the doubt to the assump- llorl of power by Congress rather than the hm1tatlon of the power of Congress," Slegan said. "It is my opmlon that 1f the public thought that the national government was bcmg given the kmd of powers John Marshall gave it m 1819, the

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ernar 1egan, a leading conservative scholar on the Constitution, teaches a class at the University of San Diego School of Law. OLAR: Constitution's·Bicente nial Nears Continued from Page 10 Siegan 1s open to questions in cla s and to challenge in debate said. "He's just so charming, so people don't get angry at him."

approach to constitutional inter- pretation. Terry Eastland, Meese's spokes- man in Washington, downplayed the meeting. • Nothing came of the lunch, nor wtll anything," he said last week.

In class last week, Russ Pri- meaux was one of the second-year Jaw students whom Siegan drew into a discussion about a zoning case. Afterward, Primeaux, a lieu- tenant in the Marine Corps, said S1egan was a tough man to quarrel with. ''He'll let you determine on what ground you want to argue. He'll concede that," Primeaux said."And then he'll beat you on your ground anyway." Siegan hopes the sort of nonpar- tisan civics lesson he conducts twice a week in a USD lecture hall will gain a nationwide stage in the months leading up to the Conl!ltitu- tion's bicentennial. "Even people who are complete- ly apathetic will suddenly find we're celebrating something, that a whole day is being given to the ~tudy of something," Siegan said. And the idea will permeate that that something is a very important document. . "And I would think curiosity and interest will raise the level of concern about the document-and I hope a whole lot."

professor at Stanford Law School ho

"He's a very good listener," said Paul Wohlmuth, a liberal USD law professor who has had more than u few friendly disagreements with Siegan. "I wouldn't classify him as

'Many people look on constitutional interpretation as a baseball game. They're not concerned as to whether it's a correct decision or an incorrect decision. It's "Did we win?" or "Did we lose?"'

Bemard Slegan Professor, USO School of Law

a dogmatic or even narrow-mind- ed, ideological-type of conserva- tive. He's presumptively a conser- vative." Sheldon Krantz, dean of the USO School of Law, said Siegan's fa. therly demeanor belies the intensi- ty of his beliefs. "He gets his points across with- out being provocative," Krantz

Some of the students in Siegan's constitutional law class, however, believe their professor deserves a promotion. "His in-depth knowl- edge and familiarity of the area is unequalled," one wrote on an end- of-the-year evaluation. "This man should be on the Supreme Court." Students and colleagues at USD say that despite his strong opinions,