Rehnquist Endangers Our Oldest Liberties

The Reagan counterrevolution enters its last years with a record of success unequaled since the early New Deal. The edifice is almost complete, lacking only the reconstruction of an annoying federal judiciary prone to intermittent interferences with the progress of counterrevolution. And that omission is rapidly being repaired with the appointment of judges thought certain to support the President’s social ideology.

One should not underestimate the power of federal judges, at every level, to influence the conduct of society. But that power is best viewed at the top--the Supreme Court: ultimate and unappealable guardian of the Constitution, the only institution that can ensure we remain, as the Founding Fathers intended, a government of laws and not men.

Such great power should be cautiously exercised, the organs of democratic government cannot be lightly overruled. And with his marvelous gift for the deceptive half-truths, the President has embraced this truism to cloak his intention of making the court not more independent, but less --an instrument of its own ideology.

He and his subordinates defend their subordination of the judiciary in the name of a doctrine of “judicial self-restraint” with which I wholly agree. When I worked as a law clerk for Justice Felix Frankfurter, he once explained his judicial philosophy as a belief that democracy, as constituted by the Founding Fathers, did not provide for basic social and political decisions to be made by nine men meeting in secret on Friday afternoon. For the court to act as a super legislature was not only undemocratic but would undermine the authority, the moral stature, on which the integrity of a government under law depended.

History teaches us the danger of transgressing this philosophy. In the 1850s the Dred Scott decision undermined all hopes of avoiding civil war. From that war until World War II, the court interpreted the 14th Amendment to protect the rights of property against the public well-being and almost destroyed the early New Deal. In recent years, beginning with the Warren court, the excesses have been on the “liberal” side. And now those who applauded judicial “activism” because they liked the results should not be surprised to see the pendulum begin to swing.

But judicial self-restraint, like most philosophical generalities, is subject to qualification--in this case a qualification so important that the integrity of constitutional government depends upon its observance. The country changes, our knowledge of the human condition increases, and the Constitution must be adapted to the new circumstances if it is not to be overwhelmed by the irresistible flow of events.

For example, in the 1870s the Supreme Court held that segregation of the races was constitutional as long as the facilities were “equal.” By 1954, experience had proved that black schools would never be equal and so the court, reversing almost a century of precedent, outlawed segregation.

In contrast, the recent sodomy decision refused to acknowledge our modern understanding that homosexuality is not merely a willful perversion, an act of choice, but in many instances an aspect of individual nature.

In recent decades the Supreme Court has wisely responded to another sea change in American life: the mounting power of a central government whose reach now extends into every aspect of American life. It has not done so--as Justice William H. Rehnquist, Reagan’s nominee to be chief justice, claims--by “inventing” new rights such as privacy and equal treatment for minorities, but finding ways to preserve ancient liberties against new dangers.

Rehnquist exemplifies, more than any individual, the Reagan effort to remove these protections.

Rehnquist has voted for federal support to a segregated university and promised to abandon the “wall of separation between church and state.” He has justified these positions, and others equally outrageous, by invoking the doctrine that only rights envisioned by the writers of the Constitution deserved protection. It is a wholly misleading and scurrilous interpretation of the doctrine of judicial self-restraint.

Neither the Founding Fathers nor the draftsmen of the 14th Amendment could have envisioned the radically changed role of women and blacks, the development of electronic eavesdropping, a mass media capable of influencing and distorting public passions. A modern police state was beyond their most fearful imagining.

They did, however, understand that even in a democracy, individual liberty needed explicit protection against the power of the state.

They provided broadly worded protection that gave us the ability to change with the times, that is responsible for the 200-year survival of the Constitution. By denying new rights as being “unprincipled,” Rehnquist would undermine the principles of human liberty and human equality that have for centuries constituted the essence and meaning of American freedom. That is not “restraint.” That is revolution which would strip the individual of his historic liberty from both government and the transient passion of public opinion.