Last edited: November 23, 2003

Courting a Crisis of Legitimacy

Washington Post, 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 Southern Manifesto.”

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 democratic participation.

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 mind again.

Letters: Lawrence v. Texas: What Was Overlooked

Washington Post, 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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