they took for granted is not so, and to change their laws accordingly. That system is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution. So to counterbalance the Court’s criticism of our ancestors, let me say a word in their praise: they left us free to change. The same cannot be said of this most illiberal Court, which has embarked on a course of inscribing one after another of the current preferences of the society (and in some cases only thecounter-majoritarian preferences of the society’s law-trained elite) into our Basic Law.
Scalia understated the anti-democratic course the Court has taken. The Justices are not inscribing smug assurances or the current preferences of our society into the Constitution; those preferences are embodied in the laws the Court declares unconstitutional. The counter-majoritarian preferences adopted by the Court, moreover, are not simply those of a law-trained elite, but those of a wider cultural elite. If only a law-trained elite were involved, the Court would lack the support necessary to enable it to revolutionize the culture.
VMI
is only one example of a feminized Court transforming the Constitution. Feminists and their allies persuaded Congress to propose for state ratification an Equal Rights Amendment requiring governments to treat men and women equally: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” There was an initial wave of state ratifications. Who could argue that women should be treated less favorably than men? But sober second thought caused people to realize that men and women cannot be treated identically in all respects. And few wanted judges to make the delicate and evolving cultural distinctions and to freeze their musings into constitutional law. The no-difference principle made eminent sense applied to different races. Black, Asian, and white persons can be treated identically by government, but men and women cannot – or at least nobody wants thatoutcome. There appears to be a remarkable lack of enthusiasm for such innovations as integrated bathrooms or women on submarines.
The ERA was not ratified by the requisite number of states, even though feminists persuaded Congress to enlarge the time for ratification to make success more likely. The subject might have been thought closed, but it was not. The Supreme Court, using the Equal Protection Clause, has, case by case, effectively enacted the substance of the ERA. The Court is, in fact, cementing into place through constitutional rulings the current views of the Justices and the New Class as to the proper relationship of men and women in our culture. The
VMI
decision is only the most egregious of many such cases enacting the rejected ERA and thereby deforming the Constitution.
Lifestyle Socialism
The evolution of the American Supreme Court over the past three-quarters of a century has matched the change in New Class interests. If we follow Kenneth Minogue in identifying the culture war as dividing those favoring and those opposing the socialist ideal or impulse, then, as he points out, the movement has been away from socialism as a guide in economic affairs to a socialism of the culture – “lifestyle” socialism. That is one useful way of marking the distinction between the Court majority under Chief Justice Earl Warren and the current Court majority.
The Warren Court was the most political and imperialistic in American history, politicizing every area of lawit touched, from antitrust and tax rulings to patent and administrative rulings and on to criminal procedures – and then, of course, to the Constitution. Constitutional or statutory text, legislative intent, precedent, considerations of the separation of powers and the justiciability of issues meant, if not nothing, then next to it. Regardless of precedent or doctrine, the observer knew that the antitrust
Scalia understated the anti-democratic course the Court has taken. The Justices are not inscribing smug assurances or the current preferences of our society into the Constitution; those preferences are embodied in the laws the Court declares unconstitutional. The counter-majoritarian preferences adopted by the Court, moreover, are not simply those of a law-trained elite, but those of a wider cultural elite. If only a law-trained elite were involved, the Court would lack the support necessary to enable it to revolutionize the culture.
VMI
is only one example of a feminized Court transforming the Constitution. Feminists and their allies persuaded Congress to propose for state ratification an Equal Rights Amendment requiring governments to treat men and women equally: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” There was an initial wave of state ratifications. Who could argue that women should be treated less favorably than men? But sober second thought caused people to realize that men and women cannot be treated identically in all respects. And few wanted judges to make the delicate and evolving cultural distinctions and to freeze their musings into constitutional law. The no-difference principle made eminent sense applied to different races. Black, Asian, and white persons can be treated identically by government, but men and women cannot – or at least nobody wants thatoutcome. There appears to be a remarkable lack of enthusiasm for such innovations as integrated bathrooms or women on submarines.
The ERA was not ratified by the requisite number of states, even though feminists persuaded Congress to enlarge the time for ratification to make success more likely. The subject might have been thought closed, but it was not. The Supreme Court, using the Equal Protection Clause, has, case by case, effectively enacted the substance of the ERA. The Court is, in fact, cementing into place through constitutional rulings the current views of the Justices and the New Class as to the proper relationship of men and women in our culture. The
VMI
decision is only the most egregious of many such cases enacting the rejected ERA and thereby deforming the Constitution.
Lifestyle Socialism
The evolution of the American Supreme Court over the past three-quarters of a century has matched the change in New Class interests. If we follow Kenneth Minogue in identifying the culture war as dividing those favoring and those opposing the socialist ideal or impulse, then, as he points out, the movement has been away from socialism as a guide in economic affairs to a socialism of the culture – “lifestyle” socialism. That is one useful way of marking the distinction between the Court majority under Chief Justice Earl Warren and the current Court majority.
The Warren Court was the most political and imperialistic in American history, politicizing every area of lawit touched, from antitrust and tax rulings to patent and administrative rulings and on to criminal procedures – and then, of course, to the Constitution. Constitutional or statutory text, legislative intent, precedent, considerations of the separation of powers and the justiciability of issues meant, if not nothing, then next to it. Regardless of precedent or doctrine, the observer knew that the antitrust
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