Coercing Virtue (6 page)

A more general judicial legislative power has been seized in the name of the Due Process Clause when no provision of the Constitution can, even with stretching or inversion, be found to apply. The Fifth and Fourteenth amendments require, respectively, due process by the federal government and the states: “No person shall … be deprived of life, liberty, or property, without due process of law.” “Substantive due process” has been used over and over again since
Dred Scott
to strike down laws whose invalidation is not justified by any provision of the Constitution. John Hart Ely commented that “there is simply no avoiding the fact that the word that follows ‘due’ is ‘process.’ … ‘[S]ubstantive due process’ is a contradiction in terms – sort of like ‘green pastel redness.’” Once the clause was said to impose substantive requirements on statutes, there was, unfortunately, nothing to define or even to suggest what the substance of substantive due process might be. There was, and could be, only the impulse of the judge. Despite its fatal defects in law, logic, and history, however, the Court finds substantive due process too valuable a source of unconfined judicial law-making to be abandoned.

The clause’s most notorious achievement in modern times was to serve as the textual peg for the Court-invented “right of privacy.”
Griswold
v.
Connecticut
(1965) struck down a state law prohibiting the use of contraceptives. The law had been enforced, under the general accessory provision of the criminal code, only against birth control clinics that advertised contraception. The
Court’s opinion argued that various guaranteed rights related to privacy – the rights of association, freedom from the quartering of soldiers in private homes, freedom from unreasonable searches and seizures, and so on – and that, from these rights, could be constructed a general, if undefined, right of privacy. Since the use of contraception was done in private, the Connecticut statute violated the Due Process Clause. A new right to be used as the Court desired had been invented. Using identical reasoning, Justice Brennan later said that the various freedoms guaranteed by the
Bill of Rights
were about dignity, so there is a general, again undefined, right to dignity. Since the death penalty subjects the condemned person to a loss of dignity, capital punishment, though several times acknowledged to be available by the Constitution, was, in fact, unconstitutional. Reasoning of this sort assumes that those who adopted the
Bill of Rights
had an intuition of a more encompassing right they were unable to articulate, but had to settle for a list of specific guarantees. In this view, the Court must finish the drafting by discerning a meaning that the framers could not. The word “hubris” comes to mind.

The Court has used its invented privacy right exclusively to enforce sexual freedoms. The most drastic instance was the success of the pro-abortion movement in evading democratic processes to lodge its desires in the Constitution, effectively making abortion a convenient birth control technique. The majority opinion in
Roe
v.
Wade
(1973) is a curious performance: in just over fifty-one pages it contains no shred of legal reasoning (or logic
of any description), but simply announces that the right of privacy is sufficiently capacious to encompass a woman’s right to an abortion. The opinion laid down new rules more permissive than any state legislature had produced. For once, the public did not passively acquiesce. The decision polarized American politics, including the politics of confirming nominees to the Supreme Court. Almost twenty years later the bitter dispute
Roe
began has not subsided, despite an explicit warning by three Justices in
Planned Parenthood
v.
Casey
(1992) that, if the public did not accept the Court’s ruling, it would be derelict in its civic duty: “[T]he Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution. … [T]o overrule under fire in the absence of the most compelling reason … would subvert the Court’s legitimacy. … Some cost will be paid by anyone who approves or implements a constitutional decision where it is [unpopular]. An extra price will be paid by those who themselves disapprove of the decision’s results when viewed outside of constitutional terms, but who nevertheless struggle to accept it, because they respect the rule of law. To all those who will be so tested by following, the Court implicitly undertakes to remain steadfast.” It is mind-boggling that the citizenry were admonished that they should accept
Roe
because they must “respect the rule of law” when
Roe
itself, as well as
Casey
, are themselves crass violations of the rule of law, are not rooted in any conceivable interpretation of the Constitution, and have nothing to do
with “constitutional terms.” Yet it is the people who must pass the test set by the Court, reminding us of Bertolt Brecht’s jest that the people have lost the confidence of the government and a new people must be formed.

Something of the intellectual rigor of the joint opinion may be gleaned from its now-famous “mystery passage”: “[Our] law affords constitutional protection to … the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, [which] are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” The words are devoid of any ascertainable meaning. They could as easily be used to protect the unborn child’s right to define his or her concept of existence. Some lower court judges have, nevertheless, found that the rhetoric compels such things as a right to assisted suicide, though their decisions were quickly reversed. What justifies either the creation of that right to assisted suicide or its denial is not clear from the mystery passage.

Worse was to come. In
Stenberg
v.
Carhart
(2000) the Court majority struck down a Nebraska statute prohibiting partial birth abortions. The procedure Nebraska sought to outlaw involves delivering the body of a baby, but leaving its head inside the uterus. The abortionist forces a pair of blunt scissors into the base of the skull, spreads the scissors to enlarge the opening, removes the scissors, and thrusts a suction catheter into the hole and evacuates the skull’s contents. The skull collapses and the
dead baby is fully removed from the mother. The Court majority held the procedure constitutionally protected, saying the statute was so imprecise that other forms of abortion might be “unduly burdened.” That objection, were it accurate, would leave room for statutes more carefully drafted, but the Nebraska law was also found defective because, though it contained an exception for cases where the mother’s life would otherwise be endangered, there was no exception for adverse effects on the mother’s health. Even physicians who used the procedure said it was never necessary to preserve health, but the Court insisted on an exception that entirely swallows the rule: an abortionist will always say that this procedure is necessary to the woman’s mental or emotional well-being.

Stenberg
was by no means the end of the Court’s campaign.
Hill
v.
Colorado
(2000) upheld a Colorado statute making it criminal to approach within 8 feet of a person seeking an abortion or within 100 feet of the entrance to an abortion clinic in order to protest or persuade against abortion. Because the ban was based on the content of the message, the Court’s previous decisions showed it to be invalid. The statute would not have been countenanced for a moment had the speech been made against a war or in support of a strike. As a dissent noted, “There is apparently no end to the distortion of our First Amendment law that the Court is willing to endure to sustain this restriction upon the free speech of abortion opponents.” Yet Justice Stevens stated with satisfaction in
Stenberg
that “the central holding of
Roe
v.
Wade
… has been endorsed by all but 4 of the 17 Justices who have
addressed the issue.” Since there is no constitutional support for
Roe
, that fact is less a testimony to the merits of the decision than proof that a large majority of the Justices are willing to jettison the Constitution when their own sympathies or ideologies are in play. Abortion has become a sacred cause for the Court, before which neither the Constitution nor the Court’s previous decisions can stand. The abortion right has survived many changes in the Court’s personnel and, though it will never gain general public assent, abortion virtually on demand and for any reason seems secure for the foreseeable future. It is a central part of the New Class’s creed.

Substantive due process is only one technique of activism in the Court’s repertoire. More recently, the Fourteenth Amendment’s guarantee of equal protection of the law, designed to protect the newly freed slaves after the Civil War, has become another uncontrollable source of judicial power. Since all law makes distinctions, it is possible to say that all law denies equal protection to persons on the unfortunate side of the line that has been drawn. To invalidate all such laws would make anarchy a constitutional requirement. The Court, therefore, has chosen which interests are subject to equal protection analysis and which not. Once again, the Court, rather than the legislature, makes the law.

In the name of equal protection, the Court may be on the verge of another extra-constitutional venture – the
normalization of homosexuality. Nothing in the Constitution speaks to the question. Historically, homosexual conduct has been left to the moral decisions of the people and their elected representatives. In
Bowers
v.
Hardwick
(1986) the Court narrowly held, in keeping with the longstanding constitutional understanding, that a state may make homosexual sodomy a criminal offense. The vote was only five to four, however, and one member of the majority later publicly regretted his vote.

The dissent by Justice Blackmun, which had come within a hair of being the majority opinion, stated with startling boldness and clarity that the informing principle of the Constitution is radical individual autonomy. Chastising the majority for arguing that prior privacy right cases related to the protection of the family, Justice Blackmun stated: “We protect those rights [associated with the family] not because they contribute in some direct and material way, to the general public welfare, but because they form so central a part of an individual’s life. ‘[T]he concept of privacy embodies the “moral fact that a person belongs to himself and not others nor to society as a whole.”’” No greater endorsement of radical individual autonomy or of sentiment more disintegrative of society has ever before been articulated in a constitutional opinion. The family has no value beyond its importance to the individuals in it, which means, if it means anything, that neither the husband nor the wife need stay in the relationship if greater personal gratification is to be found elsewhere, whether through abandonment, adultery, or, if one is finicky, divorce. If the individual belongs only to
himself, moreover, there is no moral obligation to obey the law or to take part in national defense; there is no obligation to family, neighbors, nation, society, or to anything outside one’s own skin.

Ten years later the
Bowers
majority opinion was abandoned in
Romer
v.
Evans
(1996). A few cities in Colorado, reflecting the new political and cultural power of homosexuals, enacted ordinances prohibiting discrimination on grounds of sexual orientation as well as on grounds of race and sex. Even private persons who believe strongly that homosexual conduct is immoral or prohibited by religion were forbidden to act on those beliefs. In a statewide referendum, Coloradans adopted a constitutional provision that precluded local governments from making homosexuals a favored class. The Supreme Court, however, held that this denial of special status to homosexuals violated the Equal Protection Clause of the Fourteenth Amendment. The theory was that homosexuals were impermissibly burdened if they had to secure special protection, equivalent to that afforded racial minorities, at the state rather than the local level. The law could be explained, the Court said, only by animosity toward homosexuals. The opinion closed with the preposterous assertion that the amendment “classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else.”

To the contrary, every constitutional or statutory provision at the state or the federal level does what the Colorado amendment did – it removes from some groups the capacity to alter the law at the local level. If
one took the Court’s majority’s assertions seriously, as a dissent noted, state constitutional provisions prohibiting polygamy would violate the equal protection principle. Since certain states were admitted to the Union only on condition that they have such prohibitions that could not be revoked without the consent of the United States, would-be polygamists would have to persuade the entire nation, and not simply the voters of a single state. Matters are even worse than that, however. Under what appears to be the majority’s rationale, it is difficult to see how any state or federal statute could be constitutional. They all remove discretion from localities. Since the Court has now held that the denial of special status to homosexuals is unconstitutional,
Bowers
probably must be taken to have been silently overruled.

The Court paused in its normalization of homosexuality in
Boy Scouts of America
v.
Dale
(2000). By the narrowest of margins the Court held that the Boy Scouts, which it called an “expressive association,” have the right under the Speech Clause of the First Amendment to bar an open and activist homosexual from serving as an assistant scout master. Homosexuality was viewed as inconsistent with the morality the Scouts sought to inculcate. The Court overturned the judgment of the New Jersey Supreme Court which required, by strained reasoning, the retention of an assistant scoutmaster under a state law banning discrimination on the basis of sexual orientation in places of public accommodation. The author of the dissenting opinion, Justice Stevens, offered one argument disavowed by the other three dissenters. He called the
popular disapproval of homosexuals “atavistic” and “nourished by sectarian doctrine;” the Boy Scouts’ policy was “the product of habitual ways of thinking about strangers;” and, he concluded: “If we would guide by the light of reason, we must let our minds be bold.” The other dissenters rightly observed: “Whether the group [whose policy is challenged] appears to be in the vanguard or rearguard of social thinking is irrelevant to the group’s rights.” Correct as that proposition undoubtedly is, it is difficult to reconcile with the Court’s general practice where “vanguard” – New Class – social thinking is involved. It is tempting to think that the Court majority believed that opening the Boy Scouts to an adult homosexual activist would frame a general rule courting seduction and pederasty in other cases, a possibility the public would not accept.