If any other kind of symbolism or speech, say, advocacy of Maoism, were expunged by government as thoroughly as are manifestations of religion, cries of censorship would resound throughout the land, and the Supreme Court would without doubt find the ban unconstitutional. The effect of the Court’s consistent denigration of religion in the name of the Constitution must be to so marginalize religion in our public life as to weaken the influence of religion throughout the society. As Eastland remarks, “Legal scholars agree that [the Court’s religion jurisprudence] is an intellectual mess. Unfortunately, that is not the worst that can be said about it. The truth is that the Court’s religion decisions have done serious damage to the country.” Perhaps the Court’s majority is so antagonistic to religion because religion, at least its orthodox varieties, stands in the way of the moral relativism to which the Court seems dedicated.
At the outset, I made the claim that today’s Court manifests one of the less attractive hangovers from the Sixties, that it is, in fact, enacting, in the name of the Constitution, the modern liberal agenda of political correctness. That, I believe, is indisputable, shown not only by the decisions of the Court discussed in the chapters by Graglia, McDowell, and Eastland but by a comparison of the rhetoric of the Court majority and that of the founding document of the Sixties New Left, the 1962 Port Huron Statement, a document that became the most widely circulated manifesto of the New Left.10 The Statement asserted that “The goal of man and society should be . . . finding a meaning in life that is personally authentic,” and this was to be accomplished through a (largely undefined) “politics of meaning.”
Perhaps the first explicit statement of this attitude came in Justice Harry A. Blackmun’s dissent, joined by three other justices, in Bowers v. Hardwick, arguing that there is a constitutional right to engage in homosexual sodomy. Rejecting the view that prior cases involving the right to privacy had confined that right to the protection of the family, Blackmun wrote:
We protect those rights [associated with the family] not because they contribute, in some direct and material way, to the general public welfare, but because they form so central a part of an individual’s life. “The concept of privacy embodies the moral fact that a person belongs to himself and not to others nor to society as a whole.”11
Moral facts there may be, but that assuredly is not one of them. Blackmun was saying that the family has no value except as it contributes to the individual’s gratification. Presumably, when there is a gratification deficit, individuals are morally free to shed themselves of spouse, children, and parents. On this reasoning, no-fault divorce should be a constitutional right. The second sentence sweeps even more broadly. There would seem to be no moral obligation to obey any inconvenient law and, moreover, no duty owed to colleagues, neighbors, nation, society, or anyone or anything outside one’s own skin. The ultimate in psychopathology is urged on us as a constitutional right. The four-member minority did not, of course, seriously mean anything so incomprehensible, but it speaks volumes about their mood that they could utter such a sentiment, as well as about the frivolity with which they justified their position to the nation. What they did mean was that the justices would choose which obligations a person must honor and that among the least of these are laws reinforcing morality.
Blackmun’s position became constitutional law when Bowers was overruled in Lawrence v. Texas.12 In creating a right to homosexual sodomy, Justice Kennedy’s opinion for a six-member majority, repeating language from a special concurrence earlier,13 stated:
These matters, involving the most intimate and personal choices a person may make in a lifetime [abortion, etc.], choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. [emphasis added]
That is not an argument but a Sixties oration. It has no discernible intellectual content; it does not even tell us why the right to define one’s own concept of “meaning” includes a right to abortion or homosexual sodomy but not a right to incest, prostitution, embezzlement, or anything else a person might regard as central to his dignity and autonomy. Nor are we informed of how we are to know what other rights will one day emerge from some person’s concept of the universe.
The chaotic mood of Lawrence seems equivalent to that which animated the student radicals who composed the Port Huron Statement. A transcendental politics, whether that dreamed at Port Huron or at the Supreme Court, cannot be satisfied by the messiness and compromises of democratic politics; nor can it be satisfied by the list of particular freedoms embodied in the Bill of Rights and the Fourteenth Amendment. Transcendence requires an overarching principle, which is what the “mystery passage” tried, unsuccessfully, to articulate.
That failure was inevitable. As Lord Patrick Devlin concluded, “it is not possible to set theoretical limits to the power of the State to legislate against immorality. It is not possible to settle in advance exceptions to the general rule or to define inflexibly areas of morality into which the law is in no circumstances to be allowed to enter.”14 The Court, too, finds it impossible to articulate a theoretical limit to what other branches of government may do in curbing immorality. In attempting to establish a general, comprehensive statement of limits, the “mystery passage,” like Blackmun’s Bowers dissent, necessarily goes well beyond the particularized limits on governmental power set out in the actual Constitution. That is also why the Court becomes increasingly authoritarian. Citizens and their elected representatives, displaying good sense, do not want an overarching theory of freedom and its limits and know no better than the judicial philosophes how to construct one. Faced with such recalcitrance, the Court resorts to insistence that the legitimacy of the people depends upon their acceptance of the Court’s ukases. In the absence of a real theory, political correctness will have to do. The Court, like the New Left, may practice a politics of expression and self-absorption, but that does not mean the politics is innocuous. To the contrary, it does serious, lasting, and perhaps permanent damage to valuable institutions, socially stabilizing attitudes, and essential standards.
Perhaps a better understanding of what is taking place may be gained by combining the insights of Max Weber and Kenneth Minogue. Weber wrote:
The intellectual seeks in various ways . . . to endow his life with a pervasive meaning, and thus to find unity with himself, with his fellow men, and with the cosmos. . . . As a consequence, there is a growing demand that the world and the total pattern of life be subject to an order that is significant and meaningful.15
Minogue lists three variants in the intellectuals’ quest for meaning. (These developed after religion ceased to provide meaning for the intelligentsia.) The first is the idea of progress, which eventually spawned a Marxist version, and then, when communism’s promises proved disastrous, was incorporated into an alternative endeavor that abandoned the “quick fix of revolution” for a more gradual course of instructing the public in proper opinions. “We may call it Olympianism,” he writes,
because it is the project of an intellectual elite that believes that it enjoys superior enlightenment and that its business is to spread this benefit to those living on the lower slopes of human achievement. And just as Communism had been a political project passing itself off as the ultimate in scientific understanding, so Olympianism burrowed like a parasite into the most powerful institution of the emerging knowledge economy—the universities.16
Minogue does not discuss the role of courts, but his analysis fits well with what we observe of the behavior of the Supreme Court and its intellectual-class allies. They display a “formal adherence to democracy as a rejection of all forms of traditional authority, but with no commitment to taking any serious notice of what the people actually think. Olympians instruct mortals, they do not obey them.”17
Olympians are highly suspicious of the people: “democracy is the only
tolerable mode of social coordination, but until the majority of people have become enlightened, it must be constrained within a framework of rights, to which Olympian legislation is constantly adding. Without these constraints, progress would be in danger from reactionary populism appealing to prejudice.”18 As predicted, the Supreme Court, which is the Olympians’ favorite legislature, is constantly inventing new rights to constrain an unenlightened majority. It is amazing to the modern lawyer that in Joseph Story’s Commentaries on the Constitution of the United States,19 written in 1833, the discussion of the first ten amendments, the Bill of Rights, occupies about one-fiftieth of the text. In today’s casebooks, rights decisions, with the Fourteenth Amendment added, take up two-thirds to four-fifths of the pages. These provisions were not extensively litigated until well into the twentieth century. It is hardly coincidental that the explosive proliferation of rights paralleled the rise of Olympianism.
Sometimes, as in Romer v. Evans,20 the Court majority is quite explicit about its distrust of the American people. The citizens of Colorado adopted an amendment to their constitution by statewide referendum providing that any law making illegal even private discrimination against homosexuals must be enacted at the state and not at municipal levels. Striking down the state amendment, the Supreme Court gave as a reason that “laws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected,” and that the amendment was adopted only out of a “desire to harm a politically unpopular group.” The argument in Romer was illogical. All state and federal statutes and constitutions require groups that feel themselves adversely affected to seek relief at the state or federal level, but the Court will not, on that account, destroy all government above the local level. Given its belief in the American people’s atavistic primitivism, it is hardly surprising that the Court majority, regarding itself as free from the strictures of the Constitution, has begun a campaign to normalize homosexuality. The attribution of malice as the reason for the amendment, however, was wholly gratuitous. As Scalia remarked in dissent, “The Court has mistaken a Kulturkampf for a fit of spite.” Instead, the amendment was a “modest attempt to preserve traditional sexual mores.” That, apparently, was just what the majority found wrong with the law.
The Court’s religion decisions rest upon the same foundation, fear of reactionary populism that will convert a trickle into a torrent. But there is something more: Olympianism, as Minogue notes, though fiercely secular, has the characteristics of a religion. That is why it is unflaggingly hostile to Christianity. “Real religions . . . don’t much like each other; they are, after all, competitors. Olympianism, however, is in the interesting position of being a kind of religion which does not recognize itself as such, and indeed claims a cognitive superiority to religion in general.”21 It is impossible, I think, to read Eastland’s chapter without recognizing the truth of that insight. It is probably also the case that a Court devoted to radical autonomy for individuals is hostile to religion because religion, like morals legislation, attempts to set limits to acceptable behavior. Religion and law are not merely parallel in this endeavor. Such laws (regulating abortion and prohibiting homosexual sodomy, for example) often enough flow directly from religious belief. Whether or not individual members of the Court are themselves religious, they are swayed by a false history and by the moral atmosphere of the intellectual class.
Political correctness is not confined, of course, to moral relativism. The “pc” impulse also frequently requires the submergence of individuals into groups, usually groups viewed as victimized. The results are constitutionally indefensible. Contrast, for example, Grutter v. Bollinger22 with United States v. Virginia23 In Grutter, the Court approved racial preferences in admissions by the law school of the University of Michigan, despite the Court’s own rule that such discrimination is subject to strict scrutiny to ensure that the discrimination is required by a “compelling interest.” Justice O’Connor’s opinion for the Court easily found such an interest: racial diversity. “The Law School’s educational judgment that such diversity is essential to its educational mission is one to which we defer.” But not an iota of deference was accorded in Virginia to the Virginia Military Institute’s educational judgment that an all-male student body was essential to its “adversative” method of education. Yet sex discrimination is required to meet a much lower standard of justification (“intermediate scrutiny”) than racial discrimination. It is difficult not to conclude that the disparate results were based on current elite moods that favor preferences for racial minorities and women but abhor preferences for white males. The latter are incompatible with “diversity” and feminism.
Grutter contained one other strand that is worth remark: the politics of group identity. Among the evils of Communism and Nazism was the attempt to reduce the individual to his group, in the first case to his class status, in the second to his racial group. Though it has taken a far milder form, something of the sort is happening in the United States with the importation into public policy in general and into constitutional law in particular of the concepts of multiculturalism and diversity. Individuals are to a degree reduced to their race, ethnic group, or sex. It is assumed, or sometimes insisted, that individuals think and behave as their group is supposed to do. Stereotyping, once considered wrong, has become a politically correct virtue. Thus the Court embraced that notion in Grutter even while denying that stereotyping was involved. The majority disavowed any belief that an individual’s thinking could be expected to reflect his membership in a racial group: “The Law School does not premise its need for critical mass [of each minority] on ‘any belief that minority students always (or even consistently) express some characteristically minority viewpoint on any issue.’” The opinion immediately went on, however, to adopt something almost indistinguishable from what was denied: “Just as growing up in a particular region or having particular professional experiences is likely to affect an individual’s views, so too is one’s own, unique experience of being a racial minority in a society, like our own, in which race unfortunately still matters.” Grutter thus not only mocks the equal protection clause of the Fourteenth Amendment and the explicit command of the 1964 Civil Rights Act but contains more than a whiff of the notion that blacks and American Indians (the favored groups) bring diversity to the classroom because their “unique experience” leads them to think as blacks and Indians.
The tendency of that notion, of course, is to inform those minorities that they are expected to display certain attitudes. Members of preferred groups are thus given rights on the premise, and the implied promise, that they will display the correct attitudes. That reinforces the stereotypes the law school claims to want to diminish. So strong has this thinking become in the elite world that blacks and women who arrive at conclusions unacceptable to the elites are often said not to be real blacks or women. Clarence Thomas and Jeane Kirkpatrick come to mind. Elite support for the position the law school and the Court took was demonstrated by the blizzard of briefs filed by universities, bar associations, major corporations, and other institutions that either believe in the politics of group identity or have been intimidated by it.
There are additional costs inflicted on the society by the Court’s systematic departures from the actual Constitution. Among them are anti-intellectualism, selective nihilism, a loss of the sense of the sacred, and the destruction of taboos.
The cases discussed in this book demonstrate that a majority of the Court is willing to make decisions for which it can offer no intelligible argument. There is, therefore, a sharp decline in intellectual honesty and integrity in the law. Perhaps worse, generations of law students are taught by their professors and by the casebooks they study that constitutional law is not an intellectual discipline but a series of political impulses. What counts is who wins and who loses, which political and cultural causes prevail and which are relegated to the dustbin. It is particularly unfortunate, therefore, that m
ost law schools require the basic constitutional law course in the first year, which inevitably colors the outlook of students throughout their legal education. The constitutional law casebooks have become for that reason corrupting influences.
In the hands of the Court, radical individualism in moral matters amounts (almost) to nihilism. If each individual defines meaning for himself, that can only mean that there is no allowable community judgment about moral truth. That conclusion is qualified by the simultaneous insistence that there are some moral truths the Court, but not an atavistic citizenry, has access to. Some academics, surveying the wreckage made of constitutional law, approvingly call it postmodern jurisprudence. Postmodernism has been defined as an uneasy alliance between nihilism and left-wing politics. The latter component is why the nihilism is selective: those who deny moral truth frequently simultaneously take uncompromising positions on their own versions of such truth, and those positions are invariably to the left of the American center.
The sense of the sacred, moreover, is reduced to a mocked and withered virtue. It is worth recalling what John Stuart Mill wrote when not in his ultralibertarian mode. Gertrude Himmelfarb calls our attention to this passage from Mill:24
In all political societies which have had a durable existence, there has been some fixed point; something which men agreed in holding sacred; which it might or might not be lawful to contest in theory, but which no one could either fear or hope to see shaken in practice. . . . But when the questioning of these fundamental principles is (not an occasional disease but) the habitual condition of the body politic; . . . the state is virtually in a position of civil war; and can never long remain free from it in act or fact.
A Country I Do Not Recognize Page 2
