In a subsequent case, the Second Circuit Court of Appeals found a right to die under the equal protection clause, reasoning that since terminally ill patients had a right to refuse treatment, which is effectively suicide, there is no sufficient state interest to prevent a terminally ill patient, who is not on treatment whose withdrawal would be fatal, from obtaining drugs to terminate life.38
Meanwhile, the Supreme Court of Hawaii ruled under the equal protection guarantee of the state constitution that Hawaii’s statute restricting marriage to the union of a man and a woman “is presumed to be unconstitutional.”39 This presumption can be overcome, the court said, only if the state can show that the statute “is justified by compelling state interests.” Statutes almost never survive that test, and it seems only a matter of time before the Hawaii court creates a right to same-sex marriage. Since a ruling of unconstitutionality would be based on state law, no federal court would have jurisdiction to review it.
Though a large majority of Hawaiians as well as citizens of other states oppose homosexual marriage, the likely outcome of the Hawaii case may very well become the law of every state in the union. Article IV, Section 1 of the United States Constitution states: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State; and the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”
The first part of that sentence almost certainly means that, if the Hawaii court rules as expected, other states must accept marriages between homosexuals performed in Hawaii. The Supreme Court has previously held that a state must accept a divorce performed in another state although the law and the policy of the objecting state prohibited such divorces. Homosexuals presumably could marry in Hawaii and settle in Utah as spouses no matter what the citizens of either Hawaii or Utah thought about the matter. The only way of avoiding this outcome lies in the second part of the sentence which says that Congress may prescribe the effect of a state’s acts, records, and proceedings. The Supreme Court might uphold congressional legislation stating that a Hawaiian same-sex marriage does not require other states to accord that marriage legitimacy in their territories. The Court’s response is in some doubt because it has recently shown a tendency to view homosexuality as a matter of required moral indifference under the Constitution.
In Romer v. Evans40 the United States Supreme Court struck down, six to three, the Colorado constitution’s provision that homosexual, lesbian (which is homosexual), or bisexual status should not entitle any person to claim quota preferences, protected status, or discrimination. This meant only that, notwithstanding local ordinances prohibiting discrimination on the basis of sexual orientation, private persons and institutions remained free to find homosexuality morally objectionable. Thus, a woman with a room to rent could refuse to let it to a pair of homosexual men, or a church whose religion prohibited homosexual conduct could deny a practicing homosexual a position on its staff. No jurisdiction within Colorado could require that homosexuals be given the protection from private discrimination that racial minorities are afforded. The Supreme Court held, nevertheless, that the state’s decision to withdraw this special protection, which it was not required to give in the first place, was motivated only by “animus” and so could not stand under the rationale of the equal protection clause. Homosexuals were, the Court said, uniquely disfavored because they could not win protected status through local elections unless they first won a statewide election to remove the constitutional provision in question.
That is a very odd rationale, or rather it is no rationale. Moral objection to homosexual practices is not the same thing as animus, unless all disapprovals based on morality are to be disallowed as mere animus. Modern liberalism tends to classify all moral distinctions it does not accept as hateful and invalid. Moral views about sexual practices are particularly suspect. As for the claim that homosexuals are uniquely burdened because they cannot pass the laws they want without changing the Colorado constitution, that burden is imposed on various groups by every constitutional guarantee of freedom. Those who want to prohibit speech advocating law violation or violence cannot attain their end without amending the First Amendment. The First Amendment also stands in the way of those who would like to vote for an established church in their home state. All constitutional prohibitions of certain types of laws are subject to the same attack the Supreme Court levelled at Colorado’s provision. The majority did not even mention its prior decision that homosexual conduct is not a constitutional right, but it is well on the way to holding that it is. If homosexuality may not be discouraged by state constitutions, it is difficult to see how the provisions of various state constitutions banning polygamy can stand. They can’t as a logical matter, but the Court (like modern liberal culture) is not as solicitous of polygamy as it is of homosexuality.
There is no logical or constitutional foundation for the majority’s decision in Romer v. Evans. The decision is an unsupported victory for homosexual activists, with whom the Court evidently sympathizes. As Justice Scalia said in dissent, the Colorado constitutional provision was merely a “rather modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through the use of the laws…. [The Courts decision] places the prestige of this institution behind the proposition that opposition to homosexuality is as reprehensible as racial or religious bias.”41 He concluded with the just observation that the Colorado provision “was an entirely reasonable provision which does not even disfavor homosexuals in any substantive sense, but merely denies them preferential treatment. [It] is designed to prevent piecemeal deterioration of the sexual morality favored by a majority of Coloradans, and is not only an appropriate means to that legitimate end, but a means that Americans have employed before. Striking it down is an act, not of judicial judgment, but of political will.”42 That is just what the dissent said of the majority’s decision in Roe v. Wade, and the condemnation was correct in both cases, as it would be in dozens of other decisions in which the Court, without authority in the Constitution or any law, has forced Americans to adopt the Court’s view of morality rather than their own.
As Lino Graglia, a professor of law at the University of Texas, put the matter, “the thing to know to fully understand contemporary constitutional law is that, almost without exception, the effect of rulings of unconstitutionality over the past four decades has been to enact the policy preferences of the cultural elite on the far left of the American political spectrum.”43 That is exactly right, and the question is what, if anything, can be done about it.
Graglia points out that changing the behavior of the Court through appointments is a failed tactic. Republican presidents have appointed Justice after Justice with the avowed intention of changing the Courts direction. That has not worked. Most of those appointed turn out not to be restrained or start that way but then, having no firm judicial philosophy, migrate to the left. Presidents Reagan and Bush, who quite deliberately tried to bring the Court back to a judicial rather than a political role, had five appointments, three of whom voted to retain Roe v. Wade. Now that Bill Clinton has made two appointments, the Court is certain to be activist on the cultural left well into the next century.
Any more serious efforts to limit the powers of the courts will run into the familiar refrain that this would threaten our liberties. To the contrary, it is now clear that it is the courts that threaten our liberty…the liberty to govern ourselves…more profoundly than does any legislature. Any reform effort must contend with the sanctity the courts have attained, not least through their own rhetoric. A federal district judge suppressed evidence and allowed drug dealers to go free on the theory that flight was a rational response to the sight of the police since the residents in that neighborhood view the police as “corrupt, abusive and violent. “The evidence of guilt that the judge suppressed was overwh
elming. When political leaders denounced the ruling and the judge, four members of the court of appeals issued a statement saying that political attacks on the ruling “threaten to weaken the constitutional structure of this nation,” and “These attacks do a grave disservice to the principle of an independent judiciary and, more significantly, mislead the public as to the role of judges in a constitutional democracy.”44 For sheer chutzpah that is hard to beat. It is the judiciary’s assumption of power not rightfully its own that has weakened, indeed severely damaged, the constitutional structure of the nation. It has been the judiciary, and not its critics, that has misled the public as to the role of judges in a constitutional democracy. Harsh criticism by political leaders of outrageous judicial decisions is a legitimate and necessary response. That will not be enough, however, to restore the proper balance between the branches of government and between the states and the federal courts.
Conservatives often argue that the situation can be cured by Congress removing the jurisdiction of the federal courts in classes of cases where the courts have clearly exceeded their legitimate powers. There is no comfort to be found in that response, however. Article III, Section 1 of the Constitution leaves it to the discretion of Congress whether to create any courts below the Supreme Court. It is usually thought that congressional discretion to create or not create inferior courts means that Congress could deprive those courts of all jurisdiction or of jurisdiction over particular classes of cases. That would solve nothing, however, since such cases would continue to reach the Supreme Court on appeal from state courts. The argument then turns to the statement in Section 2 that, as to most types of cases, the Supreme Court “shall have appellate Jurisdiction … with such Exceptions, and under such Regulations as the Congress shall make.” Surely, it is argued, this means that Congress can deprive the Court of jurisdiction over cases involving abortion or flag desecration or assisted suicide or whatever else Congress deems necessary to rein in a runaway judicial branch.
The matter is not that easy. The power to make “Exceptions” is probably a housekeeping power, a power to control the appellate jurisdiction in the interest of efficiency and convenience as circumstances change. It was certainly not a power to assert democratic supremacy over the judiciary. That can be seen from the results that would follow from making exceptions to the Supreme Courts jurisdiction. If Congress deprived the Court of jurisdiction over abortion cases, for example, those cases would simply be decided by state courts, and neither Congress nor the state legislatures could remove that jurisdiction. Article VI states: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
Two things follow. Article VI thus lodges jurisdiction to decide federal constitutional issues in state courts, and there is no power in any legislature to make exceptions. The framers almost certainly did not intend that the exceptions power be used to control the Supreme Court. If they had so intended, they would not have devised a scheme that, instead of restoring democratic authority, merely shifted final disposition of issues to another set of judges. It is not at all certain, therefore, that the Court would acquiesce in the removal of its jurisdiction. If it ruled the statute making an exception to its jurisdiction unconstitutional, that would be the end of the matter.
But even if the Court accepted the statute, the fact that the Constitution places jurisdiction to decide constitutional questions in the state courts would frustrate the congressional purpose. The state courts, at least most of them, would certainly follow existing Supreme Court precedent. A few years back, when there was considerable talk of taking away Supreme Court jurisdiction, the conference of state Chief Justices unanimously adopted a resolution promising to adhere to the Supreme Court’s past rulings. Any plan to curb the judiciary by first removing the jurisdiction of the lower federal courts and the Supreme Court and then bullying the state courts is too extravagant to be contemplated.
There appears to be only one means by which the federal courts, including the Supreme Court, can be brought back to constitutional legitimacy. That would be a constitutional amendment making any federal or state court decision subject to being overruled by a majority vote of each House of Congress. The mere suggestion of such a remedy is certain to bring down cries that this would endanger our freedoms. To the contrary, as already noted, it is the courts that are not merely endangering our freedoms but actually depriving us of them, particularly our most precious freedom, the freedom to govern ourselves democratically unless the Constitution actually says otherwise. The United Kingdom has devloped and retained freedom without judicial review.
Consider what the effects of such an amendment would be. This is a civilized nation; there is no reason to suppose that the citizens of some benighted town would suddenly become fascists and return to a regime of racial segregation. The Court would strike down any such laws and Congress would support the Court. What might be in danger would be the Court’s cultural drive to the left. There is no reason to suppose that representatives and senators would be skilled interpreters of the Constitution, but then the Court isn’t either…or rather chooses not to be. If constitutional jurisprudence remained a mess, at least it would be a mess arrived at democratically. There is no reason to regard this proposal as at odds with constitutionalism. When Congress proposed the original Constitution and the various amendments, it did so by laying them before the states for democratic decision. The Supreme Court changes the Constitution without any such ratifying process. The clearest equivalent would be laying judicial changes of the Constitution before Congress for ratification or rejection.
It will be said that this suggestion is “extremist.” I think not. It is part of a long tradition of seeking ways to tame judicial power so that it achieves democratic legitimacy. Robert LaFollette, if I recall correctly, proposed amending the Constitution to allow the Senate by a two-thirds vote to override Supreme Court decisions. Learned Hand, considered to be America’s premier appellate judge, was nearly apoplectic at the Supreme Court of his day. In 1914, Hand wrote to Felix Frankfurter denouncing “the fatuous floundering of the Supreme Court which goes by the name of Constitutional Law. Am I perverted that I alone of those who touch it have acquired such a contempt for the subject? I can scarcely think of a matter to which the human mind has been applied with less credit to itself than that.” He referred to the Court and its constitutional rulings as “that solemn farce.”45
The Court legislated, as it does today, through the due process clauses of the Fifth and Fourteenth Amendments. (The potential for judicial legislation through the equal protection clause had not yet been discovered.) Hand ultimately came to the conclusion that these clauses should be repealed, certainly an “extreme” position, then as now. Gerald Gunther, from whose biography of Hand I have been quoting, summarized Hand’s view on judicial power in a democracy:
At the root of the evil, Hand insisted, was “the fatuity of the system which grants such powers to men it insists shall be independent of popular control!” If the courts were to retain their legislative power under the guise of interpreting the due-process clauses, they must either “abdicate their exercise except on rare visitations,” or “submit to a popular control which they rightly enough resent.” Judicial self-restraint and popular control of the judiciary were the only two possibilities consistent with democracy: “One or the other is a condition of democracy; it is a condition of anything but ceremonial dancing before the ark of the covenant”46
Hand was speaking of a Court that was then activist in conservative causes. There is no reason to suppose that he would have been kinder to later Courts whose “fatuous floundering” was in the service of modern liberal causes. Perhaps the real lesson to be derived from both the conservative and modern l
iberal eras is that judges cannot be trusted with a written constitution and an unlimited and uncheckable power of judicial review Most men and women, given final power, will prove unable to subordinate their personal sympathies and passions to the legitimate range of meanings that a dispassionate mind can find in the Constitution.
The Court is obviously not responsible for all that has gone wrong in our culture, but it is responsible in no small measure. Some of its results are described in the following chapters. Those results include the declining legitimacy of democratic institutions, the promotion of anarchy and license in the moral order, and advancing tyranny in the social order. The upshot is that the democratic nation is helpless before an antidemocratic, indeed a despotic, judiciary. The American people seem, at the moment, to be submissive and without the political will to reclaim the liberty that is rightfully theirs.
Slouching Towards Gomorrah Page 14