Poor Judgment

Until Bernard Siegan was nominated early last year to the U.S. Court of Appeals for the 9th Circuit, he was a rather obscure University of San Diego law professor whose provocative views on the evils of government regulation won him a modest following in libertarian circles. In the 13 months since then, as the Senate Judiciary Committee has sat on the nomination, we have had a chance to review Prof. Siegan’s writings and professional experience. What we have learned is so troubling that we urge the Judiciary Committee and ultimately the Senate to reject his nomination.

Like his friend and patron, Atty. Gen. Edwin Meese III, Siegan believes that, in interpreting the Constitution, judges should rely heavily on the “original intent” of the Founding Fathers. Never mind that the United States, in 1988, scarcely resembles the simple land of yeoman farmers that Thomas Jefferson envisioned. Never mind that the framers of the Constitution did not have to worry about drugs, organized crime, pollution or other 20th-Century ills that end up in federal courts today. Just follow the Constitution’s “original intent,” Siegan says.

That philosophy already has led Siegan into some very odd byways. Siegan believes, for example, that the Constitution gave Congress only the authority to mint coins, not to print money. He contends that the 14th Amendment guarantees only “natural rights” such as life, liberty and property, not “political rights” such as voting, jury service and education, a distinction that would leave blacks and women vulnerable to discrimination. Siegan also interprets the establishment clause of the First Amendment literally, to apply only to Congress and not to the state governments; Congress may not proclaim a national religion, he says, but the states may prescribe school prayers and subsidize parochial schools and aid religion in other ways.

The centerpiece of Siegan’s thought is a reverence for economic rights so deep that, in his view, most government regulation since the New Deal has been misguided and is probably unconstitutional. Zoning ordinances, environmental controls, even minimum wage laws infringe on the “natural right” to use one’s property as one wishes, he says. He urges courts to strike down such statutes as an unconstitutional taking of private property unless government authorities can prove they are absolutely necessary.

Siegan’s views on regulation, if implemented, would overturn 50 years of jurisprudence. And, in his latest book, “The Supreme Court’s Constitution,” he finds fault with even older legal precedents, including McCulloch vs. Maryland, the 1819 Supreme Court decision that upheld the national bank and established the principle of broad congressional powers, a cornerstone of the federal system.

All this could be dismissed as a harmless intellectual exercise, the stuff of academic seminars, if the Reagan Administration hadn’t proposed to put Siegan on a court that affects the lives of all of us in the West. Siegan insists his scholarly views are “totally irrelevant” to the work of the 9th Circuit because, that as a lower court judge, he would subordinate his own beliefs and apply Supreme Court precedent even if he disagreed with it.

If only judicial interpretation were that simple. We have no reason to doubt Siegan’s sincerity or integrity, but, as every lawyer knows, the Supreme Court does not provide a complete road map through all the legal thickets. Lower court judges must find their own way, filling in the unmapped areas, sometimes breaking new ground themselves. Inevitably, if Prof. Siegan becomes Judge Siegan, cases will arise in which there is no precedent, and he will have to fall back on his own legal philosophy. And that philosophy seems to us so far out of the mainstream of American jurisprudence, so contorted and bizarre, that we conclude that Siegan does not belong on the bench.