The real purpose of the new American Constitution Society is to recruit candidates for the federal judiciary who will continue the current Supreme Court's custom of deciding cases on the basis of the justices' own policy preferences rather than by referring to the Constitution. In this year's shocking decisions, the high court abandoned all pretense of basing rulings on what the Constitution allows or forbids.
Some liberals openly preach the "evolution" of the Constitution, or assert that judges are merely translating obsolete language into a "living" Constitution. Harvard Professor Laurence Tribe is more blunt. He calls it the "free-form method."
This spring, the Supreme Court dealt devastating blows to long-standing U.S. laws and beliefs about morals and about a just society. The high court did this without advancing any argument that reasonably relates to the Constitution. The court struck down our right to legislate against immoral actions (Lawrence v. Texas), and the high court exalted diversity as a new rule that trumps non-discrimination on account of race (Grutter v. Bollinger).
No constitutional argument justifies those two decisions that create new rights of sodomy and reverse racial discrimination. They evolved out of the social preferences of the shifting majorities of justices and their pandering to the liberal elite.
Ginsburg's tour de force to aid the feminist campaign against everything masculine was her sudden discovery in 1996 of a new right for women to enroll in the Virginia Military Institute. Nobody else had detected that right in the Constitution for 157 years.
Ginsburg has long been on record as wanting cases to be decided on her version of what she calls "the equality principle," rather than on the Constitution. Her "equality" notions include the right to abortion at taxpayer expense, which the Supreme Court rejected in 1980, and a mindless gender neutrality that would include eliminating the concept of "breadwinning husband" and "dependent, homemaking wife."
Ginsburg's influence is clearly seen in another 2003 decision that shocked observers, Nevada Department of Human Resources v. Hibbs. The court's tirade against stereotypes (a word used 19 times) that supposedly "forced women to continue to assume the role of primary family care giver" was based on feminist fantasies about a gender-neutral society, not on the Constitution.
When will the American people call a halt to the tyranny of the imperial judiciary and restore "all legislative powers" to the legislatures? Will that happen if some court presumes to invent a new right of same-sex marriage?
Phyllis Schlafly is a national leader of the pro-family movement, a nationally syndicated columnist and author of Feminist Fantasies.
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