Unfounded Fodder

If you thought that last weekend's simulcast right-wing confab, “Justice Sunday II,” was about the latest nomination to the Supreme Court, you'd be a little bit right. If you thought it was waged to demonize liberals while imparting a sense of aggrieved oppression to the white Protestants assembled in churches across the nation to watch the event on big-screen TVs, you'd be a little more right. In truth, however, the agenda is far larger than either of these; they are simply the means to an end. For the apocalyptic vision of right-wing leaders, a vision they are on their way to realizing, is nothing short of the overturning of Marbury v. Madison, the landmark case decided during the first administration of President Thomas Jefferson that established the Supreme Court's right of judicial review, the means by which the constitutionality of laws passed by the legislative branch is determined.

Throughout the “Justice Sunday II” program, speakers from House Majority Leader Tom DeLay to Eagle Forum founder Phyllis Schlafly artfully made their case, decrying the “activist” -- and indeed “supremacist” -- judiciary branch they claim has risen out of the Supreme Court's 1964 decision that forbid prayer in public schools, one that has “usurped” the role of the legislative branch as the voice of the people. But when the less-disciplined William Donohue, president of the Catholic League, issued forth his unscripted rant of resentment from the pulpit of Nashville's Two Rivers Baptist Church, he tipped his hand. What we need, he told the crowd, is “a constitutional amendment that says unless a decision of the Supreme Court is unanimous, you cannot overturn legislated law.”

Now you could argue that such an amendment wouldn't truly end judicial review; it would just render it virtually impossible to achieve.

As stated by Chuck Donovan, executive vice president of the Family Research Council on that organization's Web site: “Justice Sunday II is significant … not for calling for the appointment of an active judiciary that seeks new powers and a new religious source for law, but for seeking a dramatically less active judiciary that understands its limited role in our democratic system. Moreover, Justice Sunday II does not ask for the right of judges to apply their religious views to the cases that come before them, but for judges to leave the people of this nation, including people of faith, to debate and resolve fundamental questions through legislative consensus.”

However tempting it may be to laugh off this ludicrous event and its baldly false assertions, we would do well not to be led into that temptation. This is serious stuff. These assertions are being sold to people via an exegesis of the U.S. Constitution that would surely defy the understanding of those who penned it, but nonetheless may form the only knowledge of our founding document held by those receiving the message. The Family Research Council claims to have reached 79 million households with last Sunday's telecast, which was also carried on satellite radio. Even if the true number is only half that, it has still pitched its vision of the Constitution to 40 million more households than liberals have reached with theirs.

A Liberal Vision

Liberals have done virtually nothing to explain the Constitution to regular people in terms they understand. Hollywood, at the very least, has a stake in this fight, not to mention the ability to launch a national teach-in on the Constitution through reality shows, game shows, sitcoms, and cartoons.

Even with the support of allies in media and entertainment, though, it won't be enough to simply push back with a “why they've got it wrong” case. Democrats must become even bolder than their opponents in advancing losing but expressive pieces of legislation that give urgency to the liberal vision.

Over the last six months, the House has passed two chilling pieces of legislation, both of which, if passed by the Senate, would bar the judiciary from exercising its mandate in two specific cases. One would forbid the federal courts, including the Supreme Court, from eliminating the words “under God” from the Pledge of Allegiance; the other would prohibit the high court from ruling the Defense of Marriage Act (DOMA) to be unconstitutional. (DOMA, signed in a moment of cowardice by President Clinton, precludes any state from being made to accept a same-sex marriage sanctioned by another. It also denies access to federal spousal and family benefits by same-sex spouses.)

In short, the House has attempted to seize for itself the power to decide which of its own bills are constitutional. (One imagines that the House will next pass a bill forbidding the Court to declare unconstitutional the House's legislation forbidding the Court to declare DOMA unconstitutional.) Observers express doubt that either bill can make it through the Senate, qualms that the Senate's capitulation in the Terri Schiavo case should resurrect.

Getting Creative: A Right To Privacy

While Republicans float constitutional amendments on subjects from gay marriage to judicial review, Democrats have offered nothing of the kind. Yet the opportunity for a great symbolic victory exists in the crafting of an amendment that would explicitly spell out a right to privacy, a right that most Americans think they already have, and one that Americans across party lines -- individualists that we are -- believe we deserve.

During the “Justice Sunday II” event, and in a pamphlet tucked inside a “Save the Court” kit distributed to audience members, Griswold v. Connecticut, the case that struck down laws against contraception, was derided for having been decided on a right to privacy that Justice William O. Douglas found in the shadows (penumbra) of constitutional protections against unreasonable search and seizure and the quartering of soldiers in one's home. There's nothing in the doctrine of most evangelical Christian denominations that forbids the use of birth control. It's not contraception that the right finds so objectionable in Griswold; it's the idea of a right to privacy.

In that pamphlet, “Judicial Activism and the Constitution: Solving a Growing Crisis,” Robert P. George, a professor of law at Princeton University, asks, “Should courts be granted the power to invalidate legislation in the name of the Constitution? In reaction to Chief Justice John Marshall's opinion in the 1803 case Marbury v. Madison, Thomas Jefferson warned that judicial review would lead to a form of despotism. Notably, the power of judicial review is nowhere mentioned in the Constitution.”

Despite his refusal to accept Jesus as his personal savior, there was much invoking of Jefferson in Two Rivers' TelePromTed sanctuary, as our third president was famously unhappy with the Marbury decision (because the outcome failed to grant him the relief he sought from a number of last-minute judicial appointments made by his rival and predecessor, John Adams). Alas, this later bit of wisdom from the sage of Monticello was quite overlooked: "I am certainly not an advocate for frequent and untried changes in laws and constitutions … . But I know also that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed and manners and opinions change with the change of circumstances, institutions must advance also and keep pace with the times."

Adele M. Stan is the author of Debating Sexual Correctness: Pornography, Sexual Harassment, Date Rape, and the Politics of Sexual Equality, as well as the blog AddieStan.com.

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