Winston Churchill advised, “If you have an important point to make, don’t try to be subtle or clever. Use a pile driver. Hit it once. Then come back and hit it again.”
Last month in this column I wrote about a crucial debate over the nature of constitutional government (CT, Aug. 8, p. 48, “Is the Constitution Out of Date?”). One side, represented by Supreme Court Justice William Brennan, asserts that the Constitution’s essential meaning lies in the eye of its judicial beholder; the other, championed by Attorney General Edwin Meese, argues that it is an objective standard as binding on the courts as on other branches of government. At issue is whether the foundation of our legal order rests on judicial subjectivism or original intent.
This month I get out my sledgehammer to drive the point home once more, but now in light of a Supreme Court decision that has brought the debate into clear focus.
This past June, the Court, split 5 to 4, handed down one of its most controversial rulings in decades. The subject was bound from the start to draw attention: the government in the bedroom.
Four years ago Georgia police arrested one Michael Hardwick on charges of sodomy. While serving a warrant on an unrelated charge, officers had found Hardwick engaged in sexual relations with another man. Under Georgia law this is a felony punishable by up to 20 years in prison. Though Hardwick was not prosecuted, he challenged the law on the grounds that it violated his right to privacy.
In a ruling that surprised many, the Supreme Court reversed a lower court and upheld the Georgia sodomy statute.
An uproar ensued. Protesters marched in gay communities from Greenwich Village to San Francisco. Political cartoons depicted Supreme Court justices in bed with homosexual couples. A Newsweek photo showed two gay protesters in passionate embrace under a placard reading “Supreme Bigotry.”
The outraged Washington Post demanded, “What now? Can we expect an army of police to be assigned to peeping patrol; instructed to barge into bedrooms and arrest anyone who deviates from the most conventional sexual practice?” Time moaned that the case was decided “to the delight of religious Fundamentalists and other anti-gays.”
At first blush, my libertarian sensibilities were offended as well. The decision conjures up images of policemen breaking down bedroom doors, gun and camera in hand. After all, isn’t a man’s home his castle?
It is—up to a point. Privacy is a crucial right; but, like all rights, it is not absolute. We do not accept an absolute right to privacy in cases of child abuse, rape, or incest.
Private acts ought generally to be our own business, unless they threaten the rights of other individuals or the public health. George Will writes, “An individual getting regularly drunk on gin may be a private matter. Millions of workers and parents getting regularly drunk on gin is a social disaster—and was a reason for British licensing laws.” Likewise, the terrifying AIDS epidemic might well be sufficient reason for the state to intervene in what would otherwise be private affairs.
But the Supreme Court decision had nothing to do with these issues. It makes no judgment as to the wisdom of the Georgia law or any antisodomy statute.
The Court simply stated that it could find no constitutional right to sodomy, conduct uniformly outlawed when the Constitution was adopted. States are thus free to regulate—or not to regulate—such conduct without Supreme Court interference. That is all that it said—no more and no less.
But the real significance of this decision has been largely missed by the hysterical media. It has little to do with sexual behavior; it has everything to do with the original intent of the Constitution’s framers.
Justice White wrote in the ruling, “The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution.” By creating new, fundamental rights, White argued, “the judiciary necessarily takes to itself further authority to govern the country without express constitutional authority.”
In short, the Court ruled that it should not be in the business of creating rights not found in the Constitution. This is the heart of the Meese-Brennan debate.
This decision is thus a direct challenge to 60 years of judicial activism that sought to replace the “jurisprudence of original intention” with a culturally relative, ultimately subjective determination of “essential meaning.”
Few have taken notice, but the logic of this ruling, if consistently applied in the future, could dramatically change the direction of the Court. The past decision that could be most directly affected is none other than Roe v. Wade, the apogee of judicial activism that legalized abortion on demand.
I don’t often look to Eleanor Smeal of the National Organization for Women for insightful constitutional commentary. But concerning the sodomy ruling, she is right on the mark: “If Roe is ever reversed, this is exactly the way the decision will be written.”
To apply the logic of the sodomy case to Roe v. Wade is to reverse Roe v. Wade. If the language of the Constitution is normative and if the Court has no authority to create new, fundamental rights, the right to abortion “discovered” in 1973 is no more constitutional than the right to sodomy.
The sodomy decision is, in itself, an important one. But its real significance goes much further. If the Court’s logic holds, it has sounded the death knell for legalized abortion. And that can come not a day too soon.
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