Outside the Beltway

CRISIS OF LEGITIMACY

James Joyner · Friday, July 4, 2003 · 1 comment

Charles Krauthammer has a superb column on the issue of judicial activism in today’s WaPo.

Recently we have gone to war in Afghanistan, Iraq and a few other places, at least in part to advance democracy and promote our kind of constitutionalism. A foreigner might then ask: What exactly is your Constitution? Now we know the answer. The Constitution is whatever Justice Sandra Day O’Connor says it is. On any given Monday.

That modifier is crucial, because she does change her mind, and when she does, so does the Constitution. Seventeen years ago, she ruled anti-sodomy laws constitutional. Now she thinks otherwise.

Indeed.

My concern about the court is less the outcome of these cases than the court’s arbitrariness and imperiousness. In 1992, I voted (in a Maryland referendum) to maintain legalized abortion, and yet I believe that Roe v. Wade was an appalling act of judicial usurpation that deserves repeal. And had I been a Texas legislator, I, like Justice Clarence Thomas, would have voted to repeal the sodomy law, but it was not the court’s place to do the people’s work when it struck down all such laws under an infinitely expansive notion of “privacy.”

Yep.

My favorite part:

Whenever one argues for this kind of judicial minimalism, however, the other side immediately unfurls the bloody flag of segregation. For the past half-century proponents of judicial activism have borrowed the prestige the court gained by being activist on civil rights and used it to justify judicial legislation in every other field of endeavor. On a recent edition of “Inside Washington,” for example, my friend and fellow panelist Colby King of The Post characterized my opposition to the sodomy decision as “right out of the Southern Manifesto.”

It was a bit of a stretch (delivered with a bit of a smile). Invoking segregation is a clever tactic and a staple of judicial activism, but it fails because segregation was unique. The argument against judicial activism is that it impedes, overrides and destroys normal democratic practice. But in the segregated South there was no normal democratic practice. Blacks were disenfranchised. They could not undo the injustice by legislative means because they had been deprived of those means. It was a Catch-22. That’s why the court had to intervene. That’s why the court was right to intervene. It did not mint new rights; it extended to African Americans the normal rights of democratic participation.

The proof of this uniqueness of civil rights is the fact that once these disabilities were removed and blacks could fully participate democratically, even such arch-segregationists as Strom Thurmond magically discovered — without any further court prompting — the brotherhood of man and the constituent needs of African Americans.