Coercing Virtue (7 page)

Some state courts besides New Jersey’s are ahead of federal courts in enacting the program of the intelligentsia under state constitutions. The high courts of Hawaii and Vermont, for example, have held same-sex marriages or the equivalent to be a right guaranteed by their state constitutions. The Vermont Constitution was adopted in 1793, and it is impossible to imagine that its ratifiers intended to invalidate any law that recognized marriage as a contract between a man and a woman only. The Hawaiian public responded with an amendment to their constitution overturning the decision; Vermont’s constitution is quite difficult to amend and the legislature capitulated and enacted something called a “civil union,” which carries the same benefits as marriage. Sooner or
later the U.S. Supreme Court will be presented with the issue, and the outcome is far from clear.

Radical feminism, an increasingly powerful force across the full range of American institutions, overrode the Constitution in
United States v
.
Virginia
(1996). The Court held, seven votes to one, that the Equal Protection Clause required the Virginia Military Institute to admit women. VMI had been an all-male military college for over 150 years and had coexisted peaceably with the Equal Protection Clause for 128 of those years. VMI provided “adversative methods” of training, a program that was extremely rigorous mentally, physically, and emotionally. The admission of women is changing the nature of the institution. Minor changes in atmosphere are due to such things as the need for separate bathrooms, curtains on barrack windows, and the relaxation of discipline (so that young men who need rigorous discipline can no longer receive it at VMI). More serious is the new applicability of Title IX, the federal law dealing with sex discrimination. Sexual harassment, whether real or marginal, is now a major issue, as it is at almost all coeducational schools. Surveillance has been increased, though perhaps not sufficiently: VMI is experiencing the novelty of a pregnant cadet and is now under fire for proposing to dismiss both the woman and the man who caused the pregnancy. Not surprisingly, cadets no longer interact as before. Camaraderie has declined as young men, fearful of harassment
charges, often avoid speaking to women. Women who can do six pullups are accepted as equals by male cadets, but the large majority of women who cannot are rebuffed. Whether one views these changes as wholesome or otherwise, it is clear that the VMI decision substantially changed the nature of the institution. After the service academies at West Point and Annapolis admitted women, they too had to relax their training standards to accommodate the mixed student body.

In his dissent in
United States
v.
Virginia
, Justice Scalia destroyed the majority’s argument:

Scalia understated the anti-democratic course the Court has taken. The Justices are not inscribing smug assurances or the current preferences of our society into the Constitution; those preferences are embodied in the laws the Court declares unconstitutional. The counter-majoritarian preferences adopted by the Court, moreover, are not simply those of a law-trained elite, but those of a wider cultural elite. If only a law-trained elite were involved, the Court would lack the support necessary to enable it to revolutionize the culture.

VMI
is only one example of a feminized Court transforming the Constitution. Feminists and their allies persuaded Congress to propose for state ratification an Equal Rights Amendment requiring governments to treat men and women equally: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” There was an initial wave of state ratifications. Who could argue that women should be treated less favorably than men? But sober second thought caused people to realize that men and women cannot be treated identically in all respects. And few wanted judges to make the delicate and evolving cultural distinctions and to freeze their musings into constitutional law. The no-difference principle made eminent sense applied to different races. Black, Asian, and white persons can be treated identically by government, but men and women cannot – or at least nobody wants that
outcome. There appears to be a remarkable lack of enthusiasm for such innovations as integrated bathrooms or women on submarines.

The ERA was not ratified by the requisite number of states, even though feminists persuaded Congress to enlarge the time for ratification to make success more likely. The subject might have been thought closed, but it was not. The Supreme Court, using the Equal Protection Clause, has, case by case, effectively enacted the substance of the ERA. The Court is, in fact, cementing into place through constitutional rulings the current views of the Justices and the New Class as to the proper relationship of men and women in our culture. The
VMI
decision is only the most egregious of many such cases enacting the rejected ERA and thereby deforming the Constitution.

The evolution of the American Supreme Court over the past three-quarters of a century has matched the change in New Class interests. If we follow Kenneth Minogue in identifying the culture war as dividing those favoring and those opposing the socialist ideal or impulse, then, as he points out, the movement has been away from socialism as a guide in economic affairs to a socialism of the culture – “lifestyle” socialism. That is one useful way of marking the distinction between the Court majority under Chief Justice Earl Warren and the current Court majority.

The Warren Court was the most political and imperialistic in American history, politicizing every area of law
it touched, from antitrust and tax rulings to patent and administrative rulings and on to criminal procedures – and then, of course, to the Constitution. Constitutional or statutory text, legislative intent, precedent, considerations of the separation of powers and the justiciability of issues meant, if not nothing, then next to it. Regardless of precedent or doctrine, the observer knew that the antitrust defendant, the taxpayer, and the patentee would lose, as would a great deal of criminal law enforcement. Politics was a sure guide to outcomes; law was not.

The current Supreme Court is different. It is no longer devoted to economic equality. On subjects like antitrust and taxes, the meat and potatoes topics of the law, this Court is lawyerlike, highly skilled, and politically neutral. The Court no longer displays socialist tendencies in such areas. When a cultural or lifestyle issue is raised in a constitutional context, however, the approach changes: one bloc of four moves invariably to the cultural left and usually picks up at least a fifth vote, to drive the law in that direction. The victories for the jurisprudential conservatives tend to be narrow and defensive. They sometimes manage to keep the law from moving further left – for the time being – but do not restore the law as it was before liberal activism wrought its changes. What we call conservatism on the Court is usually a mere holding action; the liberals set the agenda and the conservatives resist, but rarely roll back prior liberal rulings or advance any agenda of their own. The result is a steady movement, occasionally delayed for the moment, of the Constitution to the cultural left.

Judicial activism – the ordering of results not supported by any reasonable interpretation of the Constitution – may be rampant, but it is completely insupportable. Numerous attempts at justification have been made by academic lawyers and by left-wing activist groups such as the American Civil Liberties Union and, more recently, by heated statements from leaders of the American Bar Association. That swing should not be surprising. Some people will always rally around a center of power, particularly if it is the center most accessible to them and it produces the results they want. They are what the Canadian analysts F.L. Morton and Rainer Knopff refer to in their country as the “Court Party.”

The defenses of activism are, despite their pedigree, remarkably simplistic. Departures from the actual Constitution are justified on several grounds: we are so far removed from the framers that the words they used either cannot be understood or have little relevance to us today; there is no reason why the present generation should be governed by men long dead; and we have a “living Constitution” that must be kept abreast of our evolving morality. None of these justifications has any merit whatever.

If it were true that we cannot understand the meaning of the Constitution, the only conclusion that follows is that judges should not exercise any power of judicial review. There would then be no basis for any statement that a statute did not comport with the Constitution, which, according to this argument, is incomprehensible.
The judge who nevertheless finds a statute invalid has no basis for that conclusion – unless his unsupported preferences are sufficient. Nobody takes the argument that far. In any event, it is not true that the Constitution has no meaning available to us. Aside from the words of the text, there are the records of the Philadelphia Convention, the state ratifying conventions, and the voluminous written exchanges between the Federalists who favored adoption and the anti-Federalists who opposed it.

As to the second contention, we are not governed by men long dead unless we desire to shrink or abandon the liberties they specified in the
Bill of Rights
. If we want additional liberties, that may be accomplished by constitutional amendment or by statute. Nothing in the Constitution prevents today’s citizens from enacting statutes that specify additional liberties. Most of our guaranteed freedoms are statutory rather than constitutional. One need think only of the statutes governing civil rights, nondiscrimination, labor relations, the rights of the disabled, and so on, to see that point.

The “living Constitution” argument usually proceeds from the observation that society’s morality is evolving and that the Constitution should be interpreted by the courts to reflect that fact. The argument is disingenuous. When a court invalidates a statute, it invalidates the best evidence available of what the society’s morality entails. The evolving morality rationale, which the Supreme Court has used a number of times, is actually no more than a statement that the Court believes the morality it prefers should be enforced. The society is not evolving, only the Court is.

Nobody advances such spurious arguments to justify the Supreme Court in changing the meaning of a statute. These arguments are advanced only with respect to the Constitution, because a constitutional ruling cannot be overturned by the legislature. That fact reveals the antidemocratic animus, the socialist impulse, that lies behind each of these arguments for a Court that is not bound by the original understanding of the Constitution’s principles.

It is not apparent what, if anything, can be done to bring the American judiciary back to legitimacy in a polity whose basic character and assumptions are democratic. There appear to be four possible routes, none of them encouraging at present, though they differ in the degree to which they offer long-run hope.

There are, first, two structural solutions that have drawn support from time to time. One is the proposal to resort to Article III, section 2, which provides that “the Supreme Court shall have appellate Jurisdiction … with such Exceptions, and under such Regulations as the Congress shall make.” (There is no doubt that Congress may limit the jurisdiction of the lower federal courts.) The power to make exceptions to the Court’s jurisdiction, however, is not a means to reassert democratic control, and it can hardly have been designed for that purpose. If the Supreme Court’s jurisdiction were removed from a category of cases, jurisdiction would remain in the various state courts under Article VI’s
provision that the judges in every state shall be bound by the Constitution. Neither Congress nor the state legislatures, therefore, have the authority to remove constitutional cases from state courts. Removing all federal jurisdiction over, say, abortion cases would accomplish little or nothing. To do so would create the possibility of fifty different constitutional laws on the topic, and experience shows that many state courts are even more activist than their federal counterparts.

A second structural solution would require a constitutional amendment to permit the overruling of Supreme Court decisions by the full Congress or by the Senate. Suggestions of this sort have been made from time to time, but are never taken very seriously. Canada’s
Charter of Rights and Freedoms
has a similar provision, as will be seen, but so far it has not proved effective in curbing its Supreme Court. Perversely, it may even encourage activism by allowing Canadian judges to claim increased freedom to innovate precisely on the grounds that they are subject to democratic revision if they are seen to go too far. Canadian legislatures only rarely use their power to override.

There remain two other possible cures for judicial encroachment on democratic prerogatives. One lies in the appointment of judges who will apply the Constitution according to the original understanding of its principles. So far this strategy has not been successful. Once on the Court, appointees often display unsuspected liberal activist tendencies or they gradually move in that direction because of the influence of the media and the academic world on judicial reputations. Moreover, federal
court, and particularly Supreme Court, confirmations have become a major battleground in the culture war. The Democratic Party is now the ally of the New Class, so that, in a closely divided or a Democratic Senate, nominees suspected of adhering to the judicial philosophy of original understanding are unlikely to win confirmation. Nevertheless, the attempt to change views about proper judging and to confirm candidates with those views, unsuccessful though it has been and bleak as are its prospects in the immediate future, may be the only chance to divert the Court from antidemocratic activism in the service of liberal cultural aggression.