Mark Rienzi, Professor at Catholic University of America’s Columbus School of Law, and President of the Becket Fund for Religious Liberty, delivered the second Constitution Day Lecture of the Institute for Human Ecology, sponsored by the Jack Miller Center, on September 21. He focused on the adequacy of the Constitution to provide a framework for a divided country, and the role of the Supreme Court.
Rienzi believes the Constitution provides an adequate framework. He said that the Constitution’s most important function is holding the country together while accommodating divisions. To illustrate just how divided the country is he observed that “Presidents of both parties have called disagreement with their policies not just wrong, or misguided, but un-American, and sick, and despicable.” Losing presidential candidates in the last two elections have claimed that “the elections were stolen, or illegitimate.” But “deep disagreement is not new, and is not inherently bad.” An alternative to this regime would be one in which the government “prescribes … the one true religion, or the one correct scientific theory, or the one way of thinking that’s permissible, and everyone’s forced to fall in line and agree.”
Rienzi noted that James Madison “defined a faction as ‘some common people united around some common impulse of passion.’” Today, he said, we would call factions “interest groups,” and some of them do “stand in deep disagreement with one another.”
Madison said that in dealing with interest groups, “we could either get rid of the causes, or control the effects.” A free society cannot get rid of the causes, because the liberty it grants allows factions to flourish, grow, and possibly prevail in their objectives. Instead, a free society attempts to control the effects. This is done by forcing the factions to compete in a political process. In this process, “even the losing side has the satisfaction” of having had the opportunity to achieve its objectives in a free political process. And losing factions can continue to exist and advocate for what they want.
Rienzi said that although constitutional liberalism endeavors to turn conflict into competition, and result in outcomes everyone can accept as legitimate (if not desirable), it “does create some guard rails.” These are the “core liberties” it specifies as being untouchable by the democratic process (such as freedom of religion, speech, assembly, etc.).
He referred to the so-called Jehovah’s Witness cases during World War II, regarding the objection of Jehovah’s Witness children to pledging allegiance to the American flag. The decisive case was West Virginia Board of Education vs. Barnette (1943), in which Associate Justice Robert Jackson said “the very purpose of the Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy and to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.” Most disagreements are, however, open to the political process.
But sometimes the Supreme Court gets the Constitution grievously wrong. This was true in the first Jehovah’s Witness case, Minersville School District vs. Gobitis (1940), which declared that Jehovah’s Witness children had no right to refuse to salute the flag, even though they thought doing so was a sin. The Jehovah’s Witnesses won in the lower courts, but the Supreme Court decided that local authorities were experts in education, and the court shouldn’t second guess them. The court basically said that it “had no role to play” in protecting the religious freedom of the Jehovah’s Witnesses. This “set off a wave of violence” against Jehovah’s Witnesses. “Witnesses suffered beatings,” their buildings were burned, “some of them were dragged out of their homes and forced to salute the flag, some of them were force marched out of town … one was castrated. Law enforcement officials often looked the other way, thinking they had the Supreme Court’s blessing … By getting the Constitution so wrong, the court exacerbated our differences, and stoked our divisions.”
Happily, this decision had little influence on law, as the Barnette case overrode it just three years later. “Gobitis was a case in which the court got the Constitution wrong by failing to enforce the guard rails.” These are rights explicitly mentioned in the Constitution, which are therefore placed beyond politics and democratic decision making.
Sometimes, however, the court makes it opposite error. It attempts to resolve “deep questions” that the Constitution does not answer and which should be left to the political process. A prime example is the attempt to infer a constitutional right to abortion. “Nearly fifty years later, it is clear, that the court’s intervention has exacerbated our divisions over abortion. It has inflamed them, rather than resolving them.” Even though the court used agnosticism about the human status of unborn children to justify Roe vs. Wade, “the science was clear in 1973, and in fact, had been clear long before,” that unborn children are new, living human beings. He noted that in 1859, the American Medical Association said that abortion was “the unwarrantable destruction of human life.” The AMA said that any doubts about this were mistaken, according to existing medical science. Similarly in 1871, the New York Times described abortion as murder. Rienzi said that although his Catholic faith told him to value unborn human beings, their status as human beings is really “basic science,” and “honesty.”
Although the court professed ignorance about the status of unborn children, “it professed certainty” about the right to abortion being among those rights the Constitution has put above democratic political decision making and “given to the court to decide as a legal principle.” Rienzi observed that Justice Ruth Bader Ginsburg said Roe vs. Wade was “heavy-handed judicial intervention [which] was difficult to justify and appears to have provoked not resolved the conflict.’ He said that although Ginsburg supported abortion, her judgment about the justification and results of Roe vs. Wade was correct. The decision has prevented a political decision and the diminution of social and political discord in the abortion controversy.
Just as the court’s refusal to enforce the constitutional guard rail protecting religious freedom resulted in attacks on the unpopular Jehovah’s Witnesses, so, it could be added, its attempt to establish a new guard rail protecting consensual sexual activity (begun in the Griswold vs. Connecticut case eight years earlier, which claimed to a right to privacy appealed to in Roe) has resulted in an unresolvable political conflict. Consequently, Rienzi said, there are high profile campaigns to get the long established and beneficent Little Sisters of the Poor, who are not at all necessary in delivering contraception, to violate their religious precepts to score political points with secular voters who feel oppressed by religious sexual morality. Meanwhile, on the other side, there are sidewalk protesters against abortion outside abortion facilities to fight an abortion battle the court has made it difficult or impossible to win in legislatures.
By contrast, while the abortion issue is important in Europe, it is not the “dominating issue” that it is in the United States. Rather, the issue in Europe is worked out in a democratic legislative process. The pro-life movement there has not prevailed in much that it would like to accomplish. Hundreds of thousands of unborn children are killed. But the conflict is less, and the violence is less. “So the court’s intervention in Roe … was bad for the country. It’s also been bad for the courts.” This writer would add that this was exactly what was predicted in Justice Hugo Black’s dissent from the Griswold decision.
“My point is that there is no provision of the Constitution which either expressly or impliedly vests power in this Court to sit as a supervisory agency over acts of duly constituted legislative bodies and set aside their laws because of the Court’s belief that the legislative policies adopted are unreasonable, unwise, arbitrary, capricious, or irrational. The adoption of such a loose, flexible, uncontrolled standard for holding laws unconstitutional, if ever it is finally achieved, will amount to a great unconstitutional shift of power to the courts which I believe and am constrained to say will be bad for the courts and worse for the country.”
This prediction was dead on the mark. Failure by the Supreme Court to respect what the Constitution places in and removes from the political arena has turned “our judicial confirmations have turned into blood sport,” Rienzi said. Because of the dramatic judicial activism in Roe, people expect the courts to authoritatively and finally decide “our most fraught and vexing questions.” Both the Roe vs. Wade and Casey vs. Planned Parenthood (1992, which upheld Roe) decisions force “the court periodically to lie to itself and to the public, as it would this term, if it would pretend that it is consulting the Constitution” about whether Mississippi can lower the limit of legal abortions from 22 to 15 weeks. Everyone knows that instead of going to “look in the Constitution and find the answer that they’re really just figuring out what answer they think is right.”
As long as the court continues down the course set in such mid-twentieth century decisions as Griswold and Roe, it diminishes respect for itself as an institution, as well as respect for the Constitution. This happens by setting aside the democratic process for dealing with “our biggest and most important differences,” and then by taking upon itself “a job and a responsibility that it was never meant to have.” But at this time of great division, we need a Constitution, particularly a First Amendment, which is seriously enforced by a court which is doing the job it was meant to do, Rienzi said. He does see signs of a different direction, which will be reviewed in a subsequent article.
UPDATE: Part II can be viewed by clicking here.