USD Scholar Hews to Strict Line as Constitution Nears 200th

To hear Bernie Siegan talk, the U.S. Supreme Court is a group of wrongheaded ideologues, bent on furthering a decades-long history of allowing government to plunder the most basic liberties of the American people.

According to Siegan, the first 40 years of the 20th Century--an era that most legal scholars single out for contempt, the era that F.D.R. sought to end by packing the Supreme Court to salvage his New Deal--qualify as the court’s halcyon days, the justices’ truest sojourn on the path of judicial responsibility and constitutional respect.

Voters, legislators and government bureaucrats have done little better, Siegan contends. Citizens don’t vote--or don’t vote wisely; legislators lack expertise and succumb to influence peddling; bureaucrats rapaciously seize power, then wield it with almost unlimited sway.

Who is this guy? Some wild-eyed reactionary marching outside the halls of justice with a protest placard on his back? An anti-democratic extremist blasting from the past with a vision of a laissez faire society in which only the fittest survive?

No. This is Bernard Siegan, distinguished professor at the University of San Diego School of Law--a slight, soft-spoken scholar whose students describe him as a caring, gentle man. This is a man who calls Milton Friedman, the influential economist, and Edwin Meese III, the attorney general of the United States, his friends. This is a man who is under consideration for appointment to the U.S. 9th Circuit Court of Appeals, the preeminent federal court in the West, and says he’d love to have the job.

More to the point, Siegan, 61, is one of 23 members of the Commission on the Bicentennial of the U.S. Constitution. The generally conservative-leaning panel, chaired by Chief Justice Warren E. Burger, is charged with the task of planning for the 200th birthday party of America’s essential document of law.

The commission, formed last year, has gathered in San Diego this weekend for its fifth meeting, a 2-day event at USD.

Commissioners, including Sen. Edward M. Kennedy (D-Mass.) and Sen. Ted Stevens (R-Alaska) and author Phyllis Schlafly, will hold a closed-door business session today--a procedure authorized in November by a federal judge who rejected a plea from a Ralph Nader-founded group that all its meetings be public.

On Monday, the commission will conduct a public hearing in USD’s Camino Theatre from 8:30 a.m. to 12:30 p.m. Representatives of the television industry, the Interior Department, the Defense Department, the American Bar Assn., San Diego’s Constitution bicentennial commission and even Moeaga Lutu, the attorney general of American Samoa, are scheduled to address the commission on plans for celebrating the Constitution’s birthday.

Activities will center on Sept. 17, 1987, exactly 200 years from the day that 40 of the nation’s Founding Fathers concluded a 4-month convention in Philadelphia and signed a document crafted “to form a more perfect Union.”

“People are going to be absolutely amazed come next September when this country just explodes with bicentennial activities,” said Ron Mann, deputy director of the commission.

Plans for the celebration are advancing just as the debate over approaches to interpreting the Constitution moves from the law schools to the front page. Meese has traded words in public with Supreme Court Justices William Brennan and John Paul Stevens over the bounds of judicial activism. “Original intent” is once again a buzzword to be reckoned with.

Siegan’s fascination with the Constitution, however, is nothing new. The professor, who has taught at USD since 1973, makes a career of campaigning for a restoration of the rule of the founders’ intent in constitutional law.

“Many people look on constitutional interpretation as a baseball game,” Siegan said during an interview recently at his La Jolla home. “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?’ ”

Siegan, though, is generally a strict constructionist, a scholar who turns to the minutes of the Constitutional Convention and the records of congressional debate to divine what the Constitution’s authors had in mind.

His is a school of interpretation that has been in eclipse, more or less, for generations. Most current members of the Supreme Court, Siegan says, subscribe to the “living Constitution” school, which holds that “judges should interpret the Constitution to accommodate the events and conditions of the day.”

To Siegan, such thinking is abominable, if well-entrenched. Shrugging his shoulders, he notes sadly that Chief Justice John Marshall, a member of the Founding Fathers’ generation, wandered as early as 1819 from the path of strict construction to expand the powers of government beyond anything the Constitution’s authors intended.

Marshall authored the 1819 decision, M’Culloch vs. Maryland--studied in schools as a turning point in early American history--that said Congress had the power to establish a Bank of the United States, though the Constitution made no provision for such an institution.

His opinion “generally gave the benefit of the doubt to the assumption of power by Congress rather than the limitation of the power of Congress,” Siegan said. “It is my opinion that if the public thought that the national government was being given the kind of powers John Marshall gave it in 1819, the Constitution might never have been ratified.”

Siegan came early to a fixation on politics and law. The precocious child of lower-class parents, he grew up in 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 Chicago Law School. There, he butted heads with the free-market philosophy of the Chicago economists--Friedman and others, especially Aaron Director, a law professor who “asked questions my liberal thinking couldn’t answer,” Siegan said.

The leftist moved rightward to almost libertarian politics, launching a practice in land-use law underpinned by a conviction that government was stripping citizens of their property rights and economic freedoms through zoning restrictions and excessive regulation.

In the early 1970s, he studied the effects on land use of the absence of zoning in Houston, Tex. Where others found a clogged, ill-developed city, Siegan concluded that development in Houston was more responsive to consumer demand and that rental prices were kept low as a result of the city’s unusual policies.

His ideas are crystallized in a 1980 book, “Economic Liberties and the Constitution.” In it, Siegan argues that for much of its history, the Supreme Court has contradicted the Founders’ intent by judging economic freedom as somehow less protected than such rights as freedom of speech, religion and the press.

He calls for the court to give government action that infringes on economic rights the same stringent review it gives impairments of civil liberties, contending that such seminal American thinkers as Alexander Hamilton and James Madison held economic freedom as essential to political freedom.

Except for the period from 1897 to 1937, when the high court regularly struck down impositions on economic rights, the justices often have let government trammel such freedoms, Siegan says. The results have been economic inefficiency 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 legislatures, 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 him at an extreme of American legal scholarship. “It’s a fairly crankish position,” said Mark Kelman, a liberal professor at Stanford Law School who spoke at a seminar on Siegan’s book in 1983. “To a degree, it’s taken seriously because it resonates with the new right-wing mood in the country. It is not taken seriously for being well-argued legal reasoning.”

Other critics note that the early 20th-Century justices whom Siegan would vault into the judicial pantheon struck down such basic social legislation as child-labor laws and the regulation of sweat shops. Until they were derailed by more popular figures, such as Justices Oliver Wendell Holmes and Louis Brandeis, the “Old Court” judges went so far as to establish laissez faire economics, not the Constitution, as the supreme law of the land, many scholars say.

Yet Meese, a former colleague at USD Law School, gave Siegan’s text an enthusiastic endorsement when it was published. And in November, the attorney general and his top policy-making aides in the Justice Department had lunch with Siegan in Washington, engaging him in a 2-hour discussion of his approach to constitutional interpretation.

Terry Eastland, Meese’s spokesman in Washington, downplayed the meeting. “Nothing came of the lunch, nor will anything,” he said last week.

Some of the students in Siegan’s constitutional law class, however, believe their professor deserves a promotion. “His in-depth knowledge 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, Siegan is open to questions in class and to challenge in debate.

“He’s a very good listener,” said Paul Wohlmuth, a liberal USD law professor who has had more than a few friendly disagreements with Siegan. “I wouldn’t classify him as a dogmatic or even narrow-minded, ideological-type of conservative. He’s presumptively a conservative.”

Sheldon Krantz, dean of the USD School of Law, said Siegan’s fatherly demeanor belies the intensity of his beliefs.

“He gets his points across without being provocative,” Krantz said. “He’s just so charming, so people don’t get angry at him.”

In class last week, Russ Primeaux was one of the second-year law students whom Siegan drew into a discussion about a zoning case. Afterward, Primeaux, a lieutenant in the Marine Corps, said Siegan 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 nonpartisan civics lesson he conducts twice a week in a USD lecture hall will gain a nationwide stage in the months leading up to the Constitution’s bicentennial.

“Even people who are completely apathetic will suddenly find we’re celebrating something, that a whole day is being given to the study 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.”