Lies, Lies Pretty Little Lies: The Legacy of Castle Rock
Abstract
Since the US Supreme Court decision in Town of Castle Rock v Gonzales, there has been much agonizing over the majority decision but little if any productive response, either legally or politically. This article addresses the theoretical and political consequences of Castle Rock but from a different and more accurate theoretical perspective. The author asserts that the Scalia decision is a restatement of Rehnquist’s Constitutional philosophy articulated in Deshaney. Therefore, because the Court frames the Fourteenth Amendment as a negative rights provision, Gonzales could not have prevailed even if the Colorado Legislature had constructed its mandatory arrest statute as unambiguously mandatory. The author contends that the decision by the majority to imprint Rehnquist’s view of the Constitution on Castle Rock, defended the legal, political and economic status-quo; and here the author theorizes how that decision adversely impacts the exercise of power between the people and the judiciary. As the author contends, the Court’s Constitutional “yeah but” theory in rejecting Gonzales’s property interest claim is merely subterfuge in its defense of the status-quo. The author rejects the terrain structured by the Court and accepted by scholars, and asserts that the underlying theory motivating the Court can be found and is found in Justice Rehnquist’s notion of rights. The article analyzes the affect of Castle Rock on public policy and advocacy strategies by critiquing the failure of state actors and advocates to remedy the damage caused by the Scalia majority. Finally, the author proposes a workable policy and legal paradigm to blunt the harm created by Castle Rock.