Justice on Furlough?

What’s at Stake with a Bush Supreme Court

Perhaps the most dramatic way in which the new Bush administration will affect the lives of Americans is through appointees to the Supreme Court. The reason is that, on a scale unparalleled in American history, the Court now adjudicates issues that govern the daily rhythm of people’s existence, from public questions such as schools and taxation to private and intimate questions such as sexuality and raising children.

Most citizens are understandably perplexed over the arcane discussion about “original intent jurisprudence,” “interpretivism versus non-interpretivism,” “judicial activism” and “judicial restraint.” What is the debate really about? During the Bork hearings high erudition was on public exhibit, but for many Senators and witnesses it all seemed to come down to a series of unsubstantiated, but alarming, accusations about Judge Bork’s abiding animus toward blacks, women, and the handicapped.

Actually the issue is both clear and urgent. The Reagan administration argued that judges should not make law, they should interpret the law. The reason for this is that we live in a democracy. By the very definition of democracy, it is the people who determine the rules under which they live. They don’t do this directly, as in ancient Athens, but rather through elected representatives who are supposed to reflect their principles and translate them into policy.

How is it consistent with democracy for unelected judges to make rules? They are irresponsible in the literal sense that they are not directly accountable. By design, they are insulated from the political process. The reason the founders did this was because they envisioned judges as impartial interpreters of the will of the people, both the transient consensus as manifested in legislation, as well as the enduring social compact manifested in the U.S. Constitution.

The best way to understand this is to think of the role of the judge as analogous to that of a referee or umpire in a baseball game. The umpire does not make the rules. The umpire simply applies the rules that are given to him in particular situations. No one says that this is an easy task. Obviously there will be close calls, ambiguous situations, contingencies not envisioned by the original drafters of the rules.

In such circumstances what does the umpire do? He may inquire about the surrounding circumstances in which the rule in question was passed, in other words, go from the text to the context. He may try to resolve the issue by examining the purpose for which this particular rule, or set of rules, was enacted — the objective may illuminate the application.

This is no different from a judge, in a similar bind, consulting the “original intent” of the framers of the Constitution or relevant legislation. Intent is primarily expressed in the text, of course, but if the text is unclear it could help to excavate the historical ambience.

According to the Reagan administration, Judge Bork, and their school of thought, judges should, as far as is humanly possible, adhere to their responsibility objectively to understand and apply the law. Mostly this means giving the greatest importance to what the law actually says. Justice John Marshall in the famous Dartmouth College case put it well when he said judges should stick to the words of the law “unless there is something in the literal construction so obviously absurd, or mischievous, or repugnant to the general spirit of the instrument, as to justify those who expound the Constitution in making an exception.”

Today, however, Marshall’s formulation would be considered little short of a joke. The mainstream view in the law schools, shared by several justices of the Supreme Court, is that constitutional and statutory meaning change elastically with the judicially perceived needs of the time. “For the genius of the Constitution resides not in any static meaning that it had in a world that is dead and gone,” remarks Justice William Brennan, “but in the adaptability of its great principles to cope with the problems of a developing America.”

This school of thought concedes that in a democracy people should make rules. It challenges the notion, however, that citizens who live in the late twentieth century should be bound by the specific and literal strictures of the Constitution — an expression of minds of the late eighteenth century. In this view, judges should continuously update the Constitution to bring it into harmony with contemporary views, with the way people today want to live. In practice this often means transforming the constitutional meaning through the camouflage of interpretation.

Ronald Dworkin of Harvard argues in Taking Rights Seriously that courts “should work out principles of legality and equality, revise those principles from time to time in light of what seems to the Court fresh moral insight, and judge the acts of Congress, the states, and the President accordingly.” Bruce Ackerman of Columbia maintains that now is the time for courts “to reconstruct legal doctrine on a systematic foundation of activist legal principles . . . and help our fellow citizens build a world that is more just and more free.”

In practice this approach has generated a number of “rights” which are judicial inventions, the most notable being the “right to privacy” invoked to justify abortion on demand. Where does this right, that overpowers democratically elected state legislatures and their prerogative to regulate abortion, derive from? Read the Constitution and no such right emerges, either explicitly or by reasonable inference.

Justice William Douglas said the right to privacy was contained in the First, Third, Fourth, Fifth, and Ninth Amendments. Justice Blackmun thought he saw something in the “due process” clause of the Fourteenth Amendment. Justice Brennan preferred the “equal protection” clause of the Fourteenth Amendment. Obviously these judges were less concerned with where the right came from than with the fact that it had to be in there some place. Finally Justice Douglas broke down and admitted that the right was nowhere in the text — rather, it came from “penumbras, formed by emanations” from the words themselves.

Track these penumbras and you will find that they closely parallel all the progressive orthodoxies that have been neglected by the constitutional framers. By contrast, explicit constitutional provisions such as the right to bear arms or the right not to have properly taken with “just compensation” are not only without penumbras, but for many judges they are without relevance and can be safely ignored.

In Torcaso v. Watkins the Court determined that the “free exercise” of religion clause extends to the right to free exercise of atheism — entirely negating the meaning of a clause that gives special protection to religion. At various times “equal protection” has meant different things to the Court: first it permitted racial segregation (Plessy v. Ferguson, 1896); then it mandated a color blind approach to law (Brown v. Board of Education, 1954); now it means favoritism for selected ethnic groups. Justice Harry Blackmun has elevated jurisprudence to the level of literary paradox: “In order to get beyond racism, we must first take account of race. In order to treat some persons equally, we must treat them differently.”

It should be clear by now that this approach, which treats laws not as authoritative but convenient, permits virtually unlimited judicial trespass on the fenced grounds of democracy. If judges can, at their discretion and whim, strike down constitutional and legislative provisions, in what sense do people still retain control over the process of making rules under which they live? Have we not gone from a government of laws to a government of men?

How, then, to answer the legitimate argument that people today do not wish to be shacked to antiquated rules; that Madison and Hamilton, however inspired, could not possibly foresee the future; that rules must be malleable to changing values and needs?

In Plato’s Laws we read that such change is totally unnecessary. Insofar as the true good never changes, and the law expresses the philosopher’s vision of the true good, “any change in the laws can only be for the worse.” We don’t live under philosopher-kings, however, and as Cardinal Newman points out in his Essay on the Development of Christian Doctrine: “In a higher world it may be otherwise, but here below, to live is to change, and to be perfect is to have changed often.”

The founders, aware that they were not omniscient, provided two specific mechanisms for adapting the Constitution to the needs of the present. The first is the process of amendment. If you don’t like what the Constitution says, it tells you how to change it. The procedure is arduous, to insulate against alteration that is hot-headed or effected by small pressure groups. A deliberate public consensus, however, can modify the Constitution, and indeed the document has been amended numerous times.

The political left, frustrated in its effort to prosecute its agenda through presidential elections, has also found it difficult to assemble the widespread support necessary to amend the Constitution. Only recently, for example, so central a progressive passion as the Equal Rights Amendment was rudely rejected by state legislatures. Because the amendment process has proved inhospitable to the specific political agenda espoused by many in the legal community, this group has sought simply to read its favored social vision into the Constitution, pretending that it was always there but previously latent.

The second mechanism for change over time is the legislative process itself. The issue is not whether the country changes, but according to what criteria? The framers believed that elected representatives should be the catalysts for social change because it was reasonable to believe that they would most closely approximate the views of their constituents. Judges, by contrast, are drawn from a very small enclave of society. They hail from basically the same socioeconomic backgrounds; most come out of a handful of law schools. Can anyone believe that they, more than elected officials, embody or reflect the zeitgeist, the rules under which today’s citizens want to live?

In the 1970s, the Supreme Court invalidated most death penalty laws on “cruel and unusual punishment” grounds. It is true that standards of cruelty have changed over the past couple of centuries: ear-cropping, flogging, and burning at the stake are now decidedly out of fashion. Nevertheless it is wrong to imagine that most people today regard the death penalty as cruel and unusual punishment; on the contrary, support for capital punishment, which was declining in the previous decade, began to rise during the 1970s to its current level — virtually overwhelming public sanction for the death penalty.

At first the Supreme Court pretended that its rulings did reflect community sentiment. “It is the community’s interpretation that is sought.” Later Justice Brennan said that “I hope to embody a community striving for human dignity for all, although perhaps not yet arrived.” Justice Thurgood Marshall came entirely out of the closet when he wrote: “The American people are largely unaware of information critical to a judgment on the morality of the death penalty. If they were better informed, they would consider it shocking, unjust, and unacceptable.”

In the next few years this country will face difficult social issues, from abortion to pornography to violent crime to euthanasia. Precisely because these issues are confusing, divisive, polarizing, it is essential that they be resolved — through debate and persuasion and compromise — by the very people who are going to have to live under those decisions. To allow judges to make decisions for us to undermine our rights as citizens of a democracy, to abdicate moral responsibility for our lives, and to undermine the very foundation of fair play by sanctioning verdicts not by impartial umpires, but by players who have a declared stake in the outcome.

  • Dinesh D'Souza

    Dinesh D'Souza is an American conservative political commentator, author, and former college president.

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