A Supreme Embarrassment

“There are two types of corruption,” wrote Montesquieu in 1748. “One, when the people do not observe the laws; the other, when they are corrupted by the laws: an incurable malady, because it exists within the remedy itself.” Nowhere is this statement more appropriate than when applied to the United States Supreme Court.

From the 1968 Green case that paved the way for forced busing of schoolchildren to the recent Boumediene ruling that grants habeas corpus rights to terrorists imprisoned outside of the U.S., the Supreme Court has played a key role in the degradation of American jurisprudence. For well over a generation, the decisions of the Court (and much of the federal judiciary) have consistently and predictably run roughshod over the Constitution and the will of the people, imposing in arrogant and dictatorial fashion the social and political agenda of the Far Left. On affirmative action, law enforcement, the waging of war, homosexuality, national sovereignty, and a host of other issues, the Court’s unrestrained judicial activism has made a mockery of basic principles of law—principles that in the not-so-distant past were thought to be as solid as granite.

Key to this movement has been a shift in the understanding of law, particularly constitutional law. In the traditional Western view, law is a set of guidelines that determine the boundaries for our interaction with the wider society. In the new, revolutionary view, law is a tool with which to impose one’s image of the perfect world. Put differently, instead of legislating the structure within which man finds his path, the projected results of someone’s preferred path are pre-ordained.

I will not try here to summarize the process of decay. Rather, I would like to sketch the possible future direction of the Court’s attack on the foundations of American law and society, given the current composition of the Court (not to speak of further appointments by a President Obama). The outlook I am presenting assumes the absence of cataclysmic events, as well as a continued lack of countervailing action on the part of the executive and legislative branches.

National sovereignty. The Court can be expected to accelerate its recourse to international legal norms, particularly those with a “progressive” bent emanating from the European Union. This growing body of doctrine is a fertile incubator for anti-Western ideology, anathema to the classic liberal democratic state. At a certain point, we will see some part of the Constitution explicitly set aside in favor of some external dogma.

Perhaps the impetus will come from a sphere, such as Global Warming, that can be portrayed as crucial to the world’s survival, and thus of higher priority than any “parochial” national considerations, such as the Constitution.

Sexual deviancy. The right to practice any imaginable sexual usage is virtually assured already at the present time. The frontier consists of at least two areas. The first is the unqualified endorsement by society of such behavior, as expressed in institutional equality. The relevant institutions include marriage, pensions, curriculum in primary and secondary schools, and the military. In all of these realms, unorthodox sexual practices (some of which we may not yet be aware of) will receive equal status.

The second frontier in the domain of sexuality is the imposition of the deviant behavior on the general population. In other words, compelling people to participate in some way in the lifestyle of the “other.” This will likely start with quotas for equal time in film, television, art museums, and the like. We can expect reserved time periods or proportional space in swimming pools, business conventions, and all public accommodations.

Freedom of speech. The ideological pressure on the Court to curtail freedom of speech is now enormous, bolstered by the practical example set by Canada and Western Europe. The notion of “hate crimes” is readily available as the banner under which to dispense once and for all with that pesky First Amendment. Perhaps, as with racial preferences in higher education, “temporary necessity” will be the battering ram with which the walls are breached. We might hear a statement such as, “The Court is reticent to set aside certain First Amendment rights, but the crisis in American inter-ethnic relations requires a period of healing and reconciliation before normal discourse can resume on fair and equitable grounds.”

Immigration. If there is to be any limitation on the flow of immigration or on the granting of rights to illegal aliens, then there must be a clear distinction between citizen and non-citizen. That distinction has gradually been eroded to the point where it hangs by a thread. The Supreme Court could erase what remains by recourse to some primal “human right” that transcends any notion of a categorical relationship between the individual and the state. The Court could open an entirely new chapter in legal history by declaring all people everywhere to have exactly the same status in American law. Indeed, in the recent Boumediene case, a significant step was taken in this direction.

When such a doctrine arrives, the Court will be able to declare unconstitutional any government action that distinguishes between citizens, permanent residents, visitors, illegal aliens, etc. Once this principle is accepted, it could be applied to all contact between the U.S. government (or American entities such as corporations or associations) and individuals in any location, acting in any capacity. The killing of any human being by the armed forces could be declared unconstitutional under the Eighth Amendment (no cruel or unusual punishment).

Affirmative action. The collectivist circus that is affirmative action has for decades been the spearhead of the Court’s gruesome attack on the rule of law in the United States. It is a simple matter to project the expansion of affirmative action ad nauseam into quotas and preferences for a never-ending panoply of aggrieved “victim” groups.

New recipients of rights. We most certainly can expect the expansion of individual rights to new groups who currently are not covered or only partially covered by Constitutional protection. I have already mentioned non-citizens. Other groups might include children, the mentally incompetent, criminals, and animals. Children, for example, might receive full standing in law, with rights to state-provided counsel. A ten year-old could then sue his parents, with public funds and encouragement, for emotional abuse following a punishment.

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If present trends continue unabated for another decade or so, the Constitutional framework may very well become null and void, de facto. It may exist on paper, but in practice it will have become a fiction. We will have passed into another type of regime, one in which the principles of law that have heretofore guided the development of Western society cease to have any traction in the real world.

[Quote translated from Montesquieu, De l’esprit des lois (Spirit of the Laws), Paris, Lequien Fils, 1830, p 282 (Book VI, Chap. XII).]