WASHINGTON--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 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 vs. 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 last 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 Washington Post characterized my opposition to the sodomy decision as ``right out of the Southern Manifesto.''
Charles Krauthammer is a 1987 Pulitzer Prize winner, 1984 National Magazine Award winner, and a columnist for The Washington Post since 1985.
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