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Gore's court: The nightmare continued
Human Events, Jul 9, 1999 by Coulter, Ann
Last week we considered how civil rights and criminal law will fare under a judiciary chosen by a President Al Gore. (To summarize, members of the nation's disfavored races will be subject to certain types of legal discrimination by the government and more criminals will walk, not because they are innocent, but to "remedy" some perceived and completely unrelated social ill.)
There are many other legal reversals that will likely result from as little as one single Gore appointment to the Supreme Court. Just when you white males, gun owners, God-believers, free-speech lovers, falsely accused, and fairly convicted criminals were beginning to think America was an amenable, justice-oriented place again, it won't be. (At least you fetuses haven't really had much reason to get your hopes up.)
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A few years of Gore appointments and religious freedom will go the way of David Koresh facing the ATF. In one recent religious freedom case, Rosenberger v. University of Virginia, decided in 1995, the Supreme Court held that the university could not refuse to include a Christian group in the distribution of general student funds solely because its student newspaper, Wide Awake: A Christian Perspective at the University of Virginia, "primarily promotes or manifests a particular belief in or about a deity or an ultimate reality." That was a 5-to-4 decision.
Public support for church-connected schools is an issue that has been proclaimed both "unconstitutional" and "constitutional" in a single decade-both times in 5-to-4 votes. In a 1985 case, Aguilar v. Felton, the Supreme Court held that New York City's program that sent public school teach ers into parochial schools to provide remedial education to disadvantaged children violated the Ist Amendment's Establishment Clause.
Ten years later, the same parochial schools filed motions asking the court to reconsider Aguilar. The Supreme Court agreed with the schools this time and overruled Aguilar-in a 5-to-4 decision. (Agostini v. Felton, 1997)
Perverse Commerce
It seems inevitable, therefore, that with a single Gore appointment, the court would swing right back again to prohibiting remedial education in church-connected schools.
Under the earlier Aguilar view of the Establishment Clause, school choice initiatives might also have a difficult time surviving a Gore appointment. Indeed, under the Aguilar theory that providing remedial education to disadvantaged students in parochial schools constitutes an "establishment" of religion, the court might as well start denying parochial schools police and fire protection, too.
Another depressing result of a Gore appointment to the court will be the end of free speech for everyone except Larry Flynt. Liberal judges-liberals generally-rarely recognize speech as a protected constitutional right, unless it's pornographic or blasphemous. They view political speech with extreme skepticism. Look for a strong comeback for campus speech codes.
These have already received a major boost thanks to Justice O'Connor's opinion in Davis v. Monroe, the schoolyard sexual harassment case. The various federal agencies rooting out politically incorrect speech on campuses will become only more insufferable once Chief Justice Rehnquist is safely retired.
The next election will also decide the fate of the minor renaissance federalism has been experiencing of late. "Federalism" may not sound like an issue that should cause people to leap to their feet, hands on their hearts, tears streaming down their cheeks, but it is. It is the short-hand reference to the Constitution's division of powers between the federal government and the states.
This is important because: Congress is bad. The framers realized this and imposed strict limits on its powers. FDR realized this, and threatened to pack the court so it would stop enforcing those limits. Unchecked, unconstitutional power like that exercised by Congress now is really bad. As Justice Scalia said, this is why Lord Acton did not say, "Power tends to purify."
In the last day of the term this year, the Supreme Court handed down three federalism decisions that are less important for their precise and amazingly boring holdings (interpreting the states' sovereign immunity under the Constitution) than for the view exactly five justices take of Congress's powers generally under Article I.
These decisions solidify the five-vote majority that has been slowly, almost imperceptibly, chipping away at Congress's assumption of total power. Precedents such as Printz v. United States (Brady bill invalid as beyond Congress's constitutional authority); Seminole Tribe v. Florida (parts of Indian Gaming Regulatory Act invalidated as beyond Congress's constitutional authority); and United States v. Lopez (Gun-Free School Zones Act of 1990 invalidated as beyond Congress's constitutional authority) were all decided by a five-vote majority.
Federalist Society members were popping champagne corks on April 26, 1995, to celebrate Lopez not because they necessarily think there aren't enough guns in school, but because Lopez marked the first time in fid years that the court had struck down a federal law as beyond Congress's authority under the Commerce Clause.
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Most Popular Articles in Reference
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