The Constitution is whatever Sandra Day O'Connor says it is

Posted: Jul 04, 2003 12:00 AM

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.''

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 in effect 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 very 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.