The Judiciary and the Rule of Law
June 12, 2001
won one in the U.S. Supreme Court. He shouldnt have.
The Court ruled, 6 to 3, that an upstate New
York public school couldnt prohibit the Good News Club, a Christian student
group, from meeting on its premises after school. The liberal (that is, illiberal)
position was that this would amount to an unconstitutional state endorsement of
religion; the conservative view was that the ban discriminated
against the group because it was religious.
Both were wrong. The liberal minority was
wrong because the First Amendment says only that Congress shall make no
law respecting an establishment of religion; the states are free to do so.
The conservative majority was wrong because the federal government has no
authority to forbid religious discrimination by the states.
The purpose of the Bill of Rights is to limit
the power of the federal government, a fact Justice Clarence Thomas, who wrote
the majority opinion, usually appreciates. This ruling was a case of conservative
activism imposing a policy preference under the guise of interpreting the
Conservatives are supposed to resist judicial
activism, period. They arent supposed to engage in it themselves.
Strict construction of the Constitution means hewing to the letter,
and letting the chips fall where they may.
One could argue
Thomas was only following many liberal judicial precedents, according to which
the federal judiciary may overrule state and local authorities. But Thomas took an
oath to uphold the U.S. Constitution, not judicial precedents, which, if mistaken,
should be ignored or reversed. Otherwise bad decisions will accumulate,
superseding the Constitution itself.
Christians will naturally feel gratified that
the Court has taken their side for once. But the end doesnt justify the
means. The question at stake was not whether the schools policy was right
or wrong, but whether the federal government had any say in the matter
just as in the recent case of the golfer Casey Martin, who got the Court to intrude
in the private business of the Professional Golfers Association. If we
object to Martins victory, we should object, however regretfully, to the
victory of the Good News Club on the same principle.
The Courts ruling was an act of
arbitrary power. Everyone knows this, because its true of so many Court
rulings. Even the headlines reflected this: Top Court Gives Religious Clubs
Equal Footing in Grade Schools (the New York Times);
After-school Bible study allowed (Washington Times).
Gives? Allowed? This is not the language of freedom
or rights, inalienable or constitutional; it implies that the Court arbitrarily
accords us mere permission to do certain things. We wait upon its pleasure.
And this is now the prevailing attitude toward
government in general. We no longer insist upon our rights; we seek permission. We
dont judge the government by the Constitution; we wait for the government
to tell us what the Constitution means. And we never know what to expect.
How can the meaning of the Constitution
the fundamental law be so unpredictable? Stability is the essence
of the rule of law in general; unpredictable edicts, flowing from the arbitrary will
of rulers (whether they are called kings, dictators, presidents, legislators, or
judges), are typical of tyranny.
But Americans today are resigned to being
told what to do. They accept arbitrary, unpredictable rule as normal. In fact much
of our politics consists of organized attempts to manipulate the law by buying the
favor of the rulers. This corruption became so flagrant during the Clinton years
that many people want to stop it by limiting campaign spending.
But the problem arises not from campaign
donations, but from the very nature of the government. If it were strictly limited
to its constitutional powers, it couldnt bestow many favors and
wouldnt be worth buying. But when its powers are arbitrary and boundless,
the inevitable result is an auction of bribery. And the more venal the politicians,
the more they will pretend to be public benefactors and philanthropists, feeling
Money isnt the only payoff. Publicity is
another, and the Supreme Court seems especially sensitive to pressure from the
liberal news media. Notice how many Republican appointees to the Court have won
good press by moving leftward or, as the media purr,
growing: Warren, Brennan, Blackmun, Stevens, OConnor,
Kennedy, Souter. When the media beckon, the Constitution tends to be forgotten.
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