Courting a Crisis of Legitimacy
July 4, 2003
1150 15th Street NW, Washington, DC, 20071
By Charles Krauthammer
I once worked in government. On my first day, I raised my right hand and
swore to uphold the Constitution. I thought I knew what that meant.
Recently we have gone to war in Afghanistan, Iraq and a few other places,
at least in part to advance democracy and promote our kind of
constitutionalism. A foreigner might then ask: What exactly is your
Constitution? Now we know the answer. The Constitution is whatever Justice
Sandra Day O’Connor says it is. On any given Monday.
That modifier is crucial, because she does change her mind, and when she
does, so does the Constitution. Seventeen years ago, she ruled anti-sodomy
laws constitutional. Now she thinks otherwise.
Conservatives are distressed and liberals ecstatic about the outcome of
recent decisions of this allegedly conservative court. In a few short years,
it has enshrined in stone (1) abortion on demand, (2) racial preferences and
(3) gay rights—the liberal trifecta, just about their entire social agenda,
save shutting down the Fox News Channel.
My concern about the court is less the outcome of these cases than the
court’s arbitrariness and imperiousness. In 1992, I voted (in a Maryland
referendum) to maintain legalized abortion, and yet I believe that Roe v.
Wade was an appalling act of judicial usurpation that deserves repeal. And
had I been a Texas legislator, I, like Justice Clarence Thomas, would have
voted to repeal the sodomy law, but it was not the court’s place to do the
people’s work when it struck down all such laws under an infinitely
expansive notion of “privacy.”
Whenever one argues for this kind of judicial minimalism, however, the
other side immediately unfurls the bloody flag of segregation. For the past
half-century proponents of judicial activism have borrowed the prestige the
court gained by being activist on civil rights and used it to justify judicial
legislation in every other field of endeavor. On a recent edition of “Inside
Washington,” for example, my friend and fellow panelist Colby King of The
Post characterized my opposition to the sodomy decision as “right out of the
It was a bit of a stretch (delivered with a bit of a smile). Invoking
segregation is a clever tactic and a staple of judicial activism, but it fails
because segregation was unique. The argument against judicial activism is that
it impedes, overrides and destroys normal democratic practice. But in the
segregated South there was no normal democratic practice. Blacks were
disenfranchised. They could not undo the injustice by legislative means
because they had been deprived of those means. It was a Catch-22. That’s why
the court had to intervene. That’s why the court was right to intervene. It
did not mint new rights; it extended to African Americans the normal rights of
The proof of this uniqueness of civil rights is the fact that once these
disabilities were removed and blacks could fully participate democratically,
even such arch-segregationists as Strom Thurmond magically
discovered—without any further court prompting—the brotherhood of man and
the constituent needs of African Americans.
This restoration of fundamental democratic practice simply does not apply
to the cases in question today: abortion, affirmative action and gay rights.
No one here is barred from participating in the political process. No one is
systematically harassed or threatened. No one suffers cross burnings, beatings
or worse for agitating on behalf of this or that cause.
At one level, judicial activism is repugnant for reasons of simple
democratic self-respect. Who do these robed eminencies think they are, reading
into “penumbras, formed by emanations” of the Constitution to create new
norms and strike down others with the arbitrariness of Iran’s Council of
Guardians? This is a democracy, after all.
An even more important reason, however, is social peace. When you
short-circuit the democratic process, you deprive a decision of legitimacy and
prevent the stable social settlement of an issue. The genius of a pluralistic
Madisonian democracy is that it allows the clash of factions in the
legislature, working out messy settlements that, amended over time, allow for
compromise and give even the losers a sense of having played the game and of
having another chance next time around. All of this is lost when an issue is
foreclosed by judicial fiat.
Which is why I am pleased that the court did not abolish affirmative action
by fiat, even though I would like to see it abolished tomorrow by legislation
or referendum. Not just because this is a matter for the people to decide but
because abolishing it by judicial decree would create a crisis of legitimacy
and keep the issue aflame forever. Or until Justice O’Connor changes her
Letters: Lawrence v. Texas: What Was Overlooked
July 11, 2003
1150 15th Street NW, Washington, DC, 20071
While I agree with Charles Krauthammer’s general point about judicial
activism [op-ed, July 4], he is slightly unfair to Justice Sandra Day
O’Connor. Justice O’Connor did not rule in Lawrence v. Texas that all
sodomy is legal; she ruled that a state cannot make sodomy illegal for one
group (gays) and legal for another.
In her ruling 17 years ago, there was no such equal-protection problem,
because Georgia had laws against both homosexual and heterosexual sodomy. So
she didn’t contradict her earlier ruling; it was the majority of Anthony M.
Kennedy, Ruth Bader Ginsburg, David H. Souter, John Paul Stevens and Stephen
G. Breyer that found all sodomy laws unconstitutional.
—Matthew Kidd, Ann Arbor, Mich.
One concept of constitutionalism that Charles Krauthammer ignored in bemoaning
the Supreme Court’s enshrinement of the “liberal trifecta” of abortion
on demand, racial preferences and gay rights is that the court’s
responsibility is to ensure that the democratic majority does not deny the
rights of the minority unduly.
One could wait many years for a democratic institution such as a state
legislature, without naming names, to get around to noticing and recognizing
the rights of minority groups, be they the Ku Klux Klan marching in protest,
women seeking reproductive choice or gay people in love at home.
The court has the luxury of not having to wait for enlightenment to occur
at the evolutionary pace it usually takes for the democratic majority to see
past its interests and awaken to injustice. The court is granted the right to
exercise this responsibility, and the justices are protected by lifetime
tenure from removal for doing so whether on behalf of the liberal trifecta or
the conservative agenda they frequently endorse.
—Steven C. Price, Washington
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