Politically Incorrect Guide To The Constitution (Politically Incorrect Guides) (36 page)

But it was not to be. The Court not only failed to overturn Roe, but it
also delivered a breathtakingly silly statement of constitutional philoso phy: where the Court "calls the contending sides of a national controversy to end their national division by accepting a common mandate
rooted in the Constitution," its decision has a special "dimension." The
Court claimed to have done this only twice: in Brown and in Roe. This
conveniently overlooked the Court's pro-slavery Dred Scott decision,
which settled-until it was reversed by an enormous war and the Thirteenth, Fourteenth, Fifteenth Amendments-a "national controversy" by
repealing the Missouri Compromise and declaring that blacks could not
be citizens.

Legal Latinisms

De jure: Fully compliant with the law. It's
often, in common parlance, contrasted
with de facto, meaning existing in fact,
but not necessarily in law.

The Court ignored this unfortunate history and said it could not
reverse its decision of a controversial case. "So to overrule under fire in
the absence of the most compelling reason to reexamine a watershed
decision would subvert the Court's legitimacy beyond any serious question."

Justice Sandra Day O'Connor added that Roe had been "in conformance with the Constitution." What part of the Constitution? Why, the
Due Process Clause, of course. The one that guaranteed the recently freed
slaves that they would not be punished without a hearing, the right to
counsel, the right to call witnesses, the right to cross-examine, and so on.

You can be forgiven for asking, in Professor Lino Graglia's words,
whether the right to an abortion was included in the word "due" or in the
word "process."

O'Connor opined that the Court was the chief expositor of America's
constitutional "ideals," and that continued enforcement of unconstitutional "constitutional" decisions such as Roe was a necessary attribute of
the "rule of law." Of course, it really is just the opposite. The Court has
overturned the right of the people of the states to govern themselves, overturned the Tenth Amendment, and thus overturned the Constitution-and
called it the "rule of law."

One of O'Connor's fellows in this exercise, justice Anthony Kennedy,
delivered himself of this pearl: "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." These are among the
many rights not enumerated in the Constitution, and best left, as the Constitution
leaves them, to the determination of the
people and the states, not to an unaccountable Supreme Court majority of five
justices.

Not stopping at contraception and abortion, the Court used the Griswold precedent to establish a right to engage in
homosexual sodomy. In Bowers v. Hardwick (1986), the Court ruled with four dissents (including the "evolving standards
of decency" trio of Brennan, Thurgood Marshall, and Roe author Harry
Blackmun) that there was no fundamental right to engage in homosexual
sodomy. In light of the long-standing tradition in the English-speaking
world of punishing such sodomy severely (including by castration, burning at the stake, and-if Thomas Jefferson had had his way-boring holes
in noses), the Court could hardly have ruled to the contrary. Except that
four justices would have, and one of the majority justices, Lewis Powell,
later said that he regretted his vote.

Of course, the American people have never amended the Constitution
to create a right to homosexual sodomy. But the Supreme Court soon did
that for them. The Court simply decided there should be such a right,
and, as usual, trotted out the Fourteenth Amendment's Due Process
Clause to overturn state laws, its own previous ruling (which somehow
it couldn't do with Roe), and the tradition of English common law.

Romer v. Evans (1996) involved a state constitutional amendment.
Approved by the people of Colorado, the amendment stated: "Neither the state of Colorado, through any of its branches or departments, nor any of
its agencies, political subdivisions, municipalities or school districts,
shall enact, adopt or enforce any statute, regulation, ordinance or policy
whereby homosexual, lesbian or bisexual orientation, conduct, practices
or relationships shall constitute or otherwise be the basis of, or entitle any
person or class of persons to have or claim any minority status, quota
preferences, protected status or claim of discrimination. This Section of
the Constitution shall be in all respects self-executing." In other words,
self-identified homosexuals were to be denied any special minority privileges.

Books You're Not
Supposed to Read

The New Color Line: How Quotas and Privilege Destroy Democracy by Paul Craig
Roberts and Lawrence M. Stratton; Washington, DC: Regnery, 1997.

Civil Rights: Rhetoric or Reality? by Thomas
Sowell; New York: William Morrow, 1984.

Preferential Policies: An International Perspective by Thomas Sowell; New York:
William Morrow, 1990.

No Wonder It's Not in
the Constitution!

"We deal with a right of privacy older
than the Bill of Rights-older than our
political parties, older than our school
system."

Justice William 0. Douglas,
in Griswold v. Connecticut
(1965)

The Supreme Court, however, overturned the right of the people of
Colorado to govern themselves, and said that of course the Constitution
meant that state officials must be left free to
provide special privileges for self-identified
homosexuals. The Equal Protection Clause
of the Fourteenth Amendment meant,
according to Justice Anthony Kennedy, that
homosexuals could not be denied the opportunity to seek special privileges from state
and local governments. Kennedy said that
this policy of disallowing special privileges
could only be explained by "animus toward
the class that it affects." Here, the Court
majority ruled invalid the commonly held
position that homosexuality is about conduct, not identity. Kennedy silently rejected
the idea-clearly reflected in the Colorado
amendment-that engaging in sodomy was at issue, not the disposition
to do so. The Court, in other words, once again used the Fourteenth
Amendment grab-bag as a source of limitless judicial power to disallow
state policies with which it disagreed.

As Justice Antonin Scalia noted in dissent, what the Court had done
was to say "that opposition to homosexuality is as reprehensible as racial
or religious bias." Here, as in Roe, the Court simply preempted a legitimate political debate; as in virtually every instance since 1937, it took the
side of the leftward-most of the contending forces against the traditional
(and coincidentally the Christian) position.

Is this republican government?

Predictably, the Court followed its
Romer thinking in Lawrence v. Texas
(2003), which declared a constitutional
right to homosexual sodomy. The intellectual class, in support of the Court's
Lawrence legislation (and let us call it
"legislation," because it was absolutely
not founded on any constitutional provision or on any traditional conception of
the role of judges and the function of a written federal constitution),
hooted down critics who asked why, if private homosexual sodomy was
constitutionally protected, bestiality, incest, and group sex were not.
Intellectuals hooted down people who asked that question, but they did
not answer the question.

The First Amendment Speech and Press Clauses, as John Marshall noted
in Barron v. Baltimore (1833), originally operated as limitations on the
federal government. Their chief purpose, Republicans noted in the dispute over the Alien and Sedition Acts of 1798, was to guarantee that there
could be robust political debate.

In recent years, however, the Court has moved in the opposite direction, so that the First Amendment works as a wedge, allowing pornogra phers to operate their establishments in spite of the preferences of local
citizens as reflected by the policies of state and local governments.

A Book You're Not
Supposed to Read

Men in Black: How the Supreme Court Is
Destroying America by Mark Levin; Washington, DC: Regnery, 2005.

At the same time, however, under the guise of "campaign finance
reform," Congress is allowed by the Supreme Court to restrict political
discussion in a way that mirrors the Sedition Act in its benefits to incumbents. Among other things, the legislation upheld by the Court in
McConnell v. Federal Election Commission (2003) bans issue advertising
in favor of particular candidates within sixty days of an election. Such
advertising is one of the most powerful tools for overcoming incumbents'
advantage in personal familiarity to voters (what journalists call "name
ID"), and it is impossible to see how restricting political speech can possibly be constitutional. Congress's Bipartisan Campaign Act of 2002
(known as the McCain-Feingold Bill) restricted political advertising-that
is, the press-in various other ways as well.

What originally had been a guarantee that Congress would not regulate political speech or the political press thus has come to be treated by
the Supreme Court as allowing exactly that kind of regulation, on the grounds that money-the expenditure of which is what is restricted-is
property, not speech. And some have argued that Congress should be
allowed greater latitude in regulating political expenditures (in order,
they say, to limit the power of special interests).

Portrait of a Justice