Issues of liberty were once the provenance of the states. Today they are defined by the modern elites who have turned the Constitution and the Bill of Rights into documents their creators would not recognize.
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No other subject displays a greater divergence from the original constitutional understanding of individual liberty than that of religion. The modern Court has shown an unremitting hostility to public manifestations of religious belief. The idea that religion poses a unique danger lay behind the 1968 decision in Flast v. Cohen. It had been the universal rule that no one had standing to sue for an alleged constitutional violation merely by reason of being a citizen or taxpayer. Standing required that the litigant show concrete injury to himself. Dissatisfaction with governmental action would not suffice. That rule prevented the courts from becoming battlegrounds for abstract ideologies. In Flast, however, the plaintiff was granted standing as a taxpayer to challenge the expenditure of federal funds to aid religious schools. No other provision of the Constitution or its amendments can be enforced by a plaintiff alleging only that he is unhappy with a governmental action. Not only have standing rules been abandoned in religious cases, but there has also been an almost unlimited expansion in the scope of the Establishment Clause of the First Amendment (“Congress shall make no law respecting an establishment of religion…”). The result has been a steady flow of cases (most often brought by the ACLU, which has an acute institutional allergy to religion, particularly to Christianity) outlawing crèches on public property, prayer in public schools, moments of silence before the start of the school day (some child might be praying undetected), the display of the Ten Commandments in a high school, a teacher reading the Bible in school during his free time, the recitation of a short nonsectarian prayer at a middle school commencement, etc. and etc.
Perhaps one reason for the constitutional objections to religion is that serious religions attempt to place restrictions on their members’ behavior. Restrictions deriving from religious belief are, if not identical, at least first cousins to moral restraints imposed by law. In the eyes of the moral relativist, they are as objectionable as any moral imperative enforced by the state. For those who believe that individual liberty as the Constitution understands it is tantamount to moral relativism, therefore, religious restrictions must be ruled unconstitutional. In truth, however, there is absolutely no constitutional basis for the Court’s anti-religion campaign. As scholarship, particularly Philip Hamburger’s book Separation of Church and State, makes irrefutably clear, the Establishment Clause of the First Amendment means only that government may not establish an official church of the sort found in many European nations. Amusingly enough, when one justice pointed this out, another accused him of using an 18thcentury concept of establishment. Since the First Amendment was written, proposed, and ratified in the 18th century, the attempted refutation hardly seems germane, much less fatal to the point being made. The fact is that today there is not the remotest possibility of an establishment of religion anywhere in the United States, which means that the clause should be considered utterly obsolete, and certainly should not be used to launch attacks on ordinary and consensual religious practices that happen to take place in public.
A similar shift in individual liberty is observable in matters of sexuality. In Poe v. Ullman (1961), a case seeking to challenge Connecticut’s ban on contraceptive use, Justice Harlan could write confidently that “Adultery, homosexuality, and the like are sexual intimacies which the State forbids.” He contrasted these valid restrictions with efforts to regulate marital intimacies through the criminal law. When the statute came back before the Court in Griswold v. Connecticut (1965), Justice William O. Douglas’s opinion relied heavily upon Harlan’s rationale in creating a right of privacy for married couples. That right predictably expanded in later cases, first to cover anyone wishing to purchase and use contraceptives, and then to other matters, including abortion.
But Harlan’s dictum that acts such as adultery and homosexual sodomy could legitimately be proscribed seemed to hold. In Bowers v. Hardwick (1986) the Court by a majority of one upheld a law criminalizing homosexual sodomy, but it was Justice Harry Blackmun’s dissent that forecast the shape of constitutional liberty to come. He first denied that the right of privacy invented in Griswold was confined to relations within the family: “We protect those rights 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.” Not satisfied with this extraordinary elevation of the individual above any claims of the family, Blackmun went on: “[T]he concept of privacy embodies the ‘moral fact that a person belongs to himself and not others nor to society as a whole.’” This is to deny that society, much less kin, friends, or colleagues, have any valid claim upon the individual. That is a revolutionary, not to say sophomoric, notion of liberty.
The court’s celebration of rampant individualism appears to have limits, at least for the time being. In Washington v. Glucksburg (1997), the justices refused to create a constitutional right to assisted suicide. This seems to fly in the face of cases such as Eisenstadt v. Baird (1972) where the Court upheld the right of persons, married or not, to purchase contraceptives because of the individual’s right to be “free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” The Court in Glucksburg actually spoke of the sanctity of human life and the state’s “unqualified interest in the preservation of human life.” This, coming from a Court that finds a virtually unlimited right to abortion, seems, at the very least, ironic.
It is not to be supposed that this continual evolution of the Constitution is entirely the work of the judiciary. Nor is it the work of the American public. The evolution proceeds, after all, by invalidating laws and actions that are the work of the electorate’s elected representatives. It is unmistakably the case that the Court’s work sometimes follows and sometimes leads opinion trends in America’s “elites”— university faculties, journalists, entertainers, foundation staffs, mainline churches, and governmental bureaucracies. These elites and the courts rely upon each other. The elites guide the judiciary and make the judges’ decisions acceptable to the public, while the judiciary gives finality to elite opinion in a way that cannot be overturned by legislation. The aristocracy that the anti-Federalists feared has been created and empowered in large part by the very Bill of Rights they demanded as a bulwark against aristocracy.
There are heavy costs to this development. One is the decline of individual liberty as the Constitution originally understood it. The first freedom, implicit and taken for granted in the design of the Constitution, is the power of individuals to participate in making the laws by which they are governed. When an activist judiciary steadily creates rights it calls “constitutional” but which have no plausible roots in the historic Constitution, that liberty is just as steadily decreased. Justice Scalia put it well in a dissent: “What secret knowledge, one must wonder, is breathed into lawyers when they become Justices of this Court, that enables them to discern that a practice which the text of the Constitution does not clearly proscribe, and which our people have regarded as constitutional for 200 years, is in fact unconstitutional?… Day by day, case by case, [this Court] is busy designing a Constitution for a country I do not recognize.”
Though it is not usually discussed in those terms, an activist Court also attacks the individual’s interest in federalism and his nation’s sovereignty. Ideas of morality and appropriate policies vary, sometimes drastically, by states and regions. Constitutional rulings often obliterate such differences and do so with flat rules about rights that leave no room for compromise and the normal processes of democracy. Citizens lose both their freedom to leave a jurisdiction whose policies they dislike and the political freedom to try to change those policies at the ballot box. These were liberties the original Constitution assumed. Perhaps even further from the contemplation of the Founders is the recent inclination of a majority of the Court to create a transnational Constitution by reliance on foreign judicial decisions, legislation, and even resolutions and treaties the United States has not adopted or ratified. What are the prospects for individual liberty as the Constitution of the future will understand it? It is always perilous to predict the future by extrapolating from existing trends. On the other hand, the trends being discussed have persisted in virulent form for more than 60 years and there is little sign that they will halt or be reversed. The dominant social class is likely to remain the knowledge or intellectual class. Judges who belong to that class and find its assumptions congenial have become used to making policy regardless of the understanding of what they were doing by the men who made the Constitution law. National elections have not changed much. Justices appointed by Republicans vote in much the same way as those appointed by Democrats; the Court that gave us Roe v. Wade was comprised overwhelmingly of Republican appointees, and Republican justices have continued to reaffirm and to extend the rule of that case for more than 40 years.
As the example of Roe suggests, constitutional litigation and decisions can be highly divisive and harmful to our politics. Individual liberty will continue to diminish by increments as the judiciary takes more and more of the ability to govern from the hands of voters. One would have to be unconscious or supremely credulous not to see, for example, that the Court is chipping away at the death penalty with a view to its ultimate extinction, in defiance both of the Constitution and the voters of many states, and that its homosexual sodomy rulings were designed to lay the groundwork for a constitutional right to same sex marriage. The most pernicious aspect of this process is that the public is gradually led to believe that elite values are actually in the Constitution or to recognize that voters have no way of correcting the Court and so come docilely to accept the loss of their liberties.
The potential for more divisive and erroneous constitutional ruling in the future increases as America becomes an increasingly diverse society. Robert Putnam’s study, confirming what even casual observation suggests, found that as diversity increases, the sense of community and trust decline. John Jay recognized the advantages of a fairly homogenous society when he wrote in the second issue of The Federalist, “Providence has been pleased to give this one connected country to one united people—a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs ….” He went on to say that this country “should never be split into a number of unsocial, jealous, and alien sovereignties.”
Given America’s diversity today—lacking the unifying traits that impressed Jay and increasingly split into a number of distrustful groups—can anyone imagine that our original Constitution could be written and ratified today? More than this, can anyone imagine that these groups will not seek to amend the Constitution by court rulings? Group rights are likely to trump many individual liberties. We have seen this already with affirmative action laws and procedures and court rulings that ratify them. Judge Learned Hand wrote in 1942: “[T]his much I think I do know—that a society so riven that the spirit of moderation is gone, no court can save; that a society where that spirit flourishes, no court need save; that in a society which evades its responsibility by thrusting on the courts the nurture of that spirit, that spirit in the end will perish.” Moderation in our politics and the clamor for new rights is already decreasing. Group rights defined and enforced by courts are not a recipe for either individual liberty or social peace.
Nor are peace and liberty to be found in the modern elite values or in the judicial behavior that accepts them. For these elite values are deeply incoherent, as can be witnessed everywhere in the culture. Maureen Mullarkey notes the parallel in this respect between “conceptual art” and constitutional law:
Man is made for meaning, a communal achievement realized in concert with what used to be called natural law. Only when language is judged a product of arbitrary will rather than of cognition can it be “left to the viewer to construct meaning.”
The assent to intellectual anarchy, popularized in the arts, reached its apogee in Planned Parenthood v. Casey’s famous defense of individualized deduction: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and the mystery of human life.” Only the mad, quarantined by unshared, idiosyncratic conceptions of reality, suffer that kind of freedom. The privatization of meaning signals something larger than an art-world posture. Antirational, it thwarts the basis for making the distinctions on which decisions, aesthetic and moral, rest.
She also remarks, “the resentment of rationality and of socially embraced patterns of meaning.” Individual liberty will not find a secure home in a world where this resentment prevails. What the original Constitution and Bill of Rights had to say about individual liberty is a far cry from what the judicially amended Constitution has to say and will say in the future. When considering the prospects for liberty, we should bear in mind that absolute authority, a disdain for the historic Constitution, and philosophic incompetence are a lethal combination. The only solution apparent would appear to be the political defeat of our current elites accompanied by a defection of some members of the elites from their present monolithic attitudes. That may seem a utopian fantasy, but changes in the culture and the reading of the Constitution have occurred in the past. Though these changes have proved largely deleterious, they demonstrate that change is not only possible, but inevitable. Unless we assume that the culture war is irretrievably lost, and with it an increasing number of our liberties, our responsibility is to return our constitutional understanding as closely as possible to the first principles of the Founders’ plan.
Robert H. Bork is a distinguished fellow at the Hudson Institute. His books include Slouching Towards Gomorrah: Modern Liberalism and American Decline (1996; reissued 2003) and Coercing Virtue: The Worldwide Rule of Judges (2003). This essay is the fifth in a ten-part series being published in successive issues of The American Spectator under the general title, “The Future of Individual Liberty: Elevating the Human Condition and Overcoming the Challenges to Free Societies.” The series is supported by a grant from the John Templeton Foundation. The opinions expressed in this series are those of the authors and do not necessarily reflect the views of the John Templeton Foundation.
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