The Supreme Court vs. the Constitution

Posted: Jan 12, 2005 12:00 AM

 The Supreme Court has entered a period of relative silence on social issues. On Nov. 28, the court refused to hear a challenge to the Supreme Judicial Court of Massachusetts' ruling sanctioning gay marriage. On Jan. 10, the Supreme Court refused to hear a constitutional challenge to Florida's 1977 law banning homosexuals from adopting children.

 This silence is a short respite from an era of judicial activism. The court is resting because its justices fear public backlash. And they should fear public backlash -- they've abdicated their duty. Every Supreme Court justice sitting on the bench took a solemn oath to "faithfully and impartially discharge and perform all the duties incumbent on me ... according to the best of my abilities and understanding, agreeably to the Constitution, and laws of the United States. So help me God."

 Why, then, does the court administer "justice" based on personal predilection instead of the Constitution? Why has the court consistently exceeded its powers to create prophylactic rules based only on its own, elitist value system, instead of protecting rights enumerated in the Constitution? Why have the justices subverted the rule of law by undermining that most fundamental of American rights -- the right to vote for policy-makers who will legislate -- in favor of rights that do not exist under the Constitution?

 Here's the usual pattern the justices have used to supplant the will of the people: First, they find a right enumerated in the Constitution. Then, they expand the right (and their reading of the right in the Constitution) according to their completely subjective opinions about policy. That expansion often means creating brand-new rights that are not enumerated in the Constitution. With the expansion of old rights and creation of new rights, the court finds a way to cut down laws it does not like, even if those laws are completely consistent with the words of the Constitution.

 A perfect example: In a 1965 case, Griswold v. Connecticut, some Yale professors challenged a Connecticut state law barring couples from using contraception. It was an archaic policy and a policy that was never enforced. Nonetheless, it was wholly consistent with the Constitution, which allows legislatures to legislate in areas that are unprotected by the Bill of Rights. The Supreme Court ruled that such a statute was unconstitutional; in order to find it unconstitutional, the justices created a brand, spanking new right to privacy from areas of the First, Third, Fourth and Ninth Amendments.

 Of course, an independent "right to privacy" sufficient to bar a law like the Connecticut contraceptives law cannot be found in any copy of the Constitution (an observation that quite possibly lost Robert Bork a seat on the Supreme Court). But the court wasn't done yet. Now that the court had widened the amendments to create a shiny new right, they were ready to use it. In Roe v. Wade, they cited the right to privacy created in Griswold in order to ban state laws on abortion but "discovered" the "right to privacy" this time in a blatant misreading of the Due Process Clause of the 14th Amendment (the Due Process Clause of the 14th Amendment, by the way, is used as a shoehorn by lawyers, judges and law professors to shove anything they find personally abhorrent into a box marked "unconstitutional"). As Bork writes in The Tempting of America, "This is not legal reasoning, but fiat."

 But the justices weren't finished yet. In 1986, the court decided in the Bowers v. Hardwick decision that state laws barring homosexual behavior were constitutional. But only 17 years later, the court reversed itself in the egregious 2003 decision, Lawrence v. Texas. Justice Anthony Kennedy wrote the majority opinion, which stated highhandedly that "The petitioners are entitled to respect for their private lives. ... The state cannot demean their existence or control their destiny by making their private sexual conduct a crime."

 The Constitution makes no statement about homosexuality, and the founders would have looked upon such a purposeful perversion of their document with horror and scorn. But as former Chief Justice Warren Burger once stated, "We're the Supreme Court, and we can do what we want."

 Only one thing restricts the court: public backlash. Despite life terms, the justices realize that without public acceptance, their opinions are superfluous. In the 1972 election, Richard Nixon campaigned largely on an anti-Supreme Court platform, ripping into the court for its anti-law-and-order rulings. In the 2004 election, voters turned out in droves to vote against a party that supports judicial meddling in fully constitutional legislation.

 And so for now, the court is seeking safety in silence. Unfortunately for the justices, silence constitutes no defense to decades-long tyrannical exploitation of power.