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brooding omnipresence is of course the Supreme Court. Its members
are mortal, unlike some of the decisions they pass on, millstones
around the neck of otherwise free people. Sen. Daschle, on behalf
of the new Senate, has advised that indeed "ideology"
will figure in the Senate's exploration of the qualifications of
nominees. That takes us a very long way from the days when Democratic
point men inveighed against "litmus tests" during the
reign of Reagan and Bush I. Daschle & Co. don't want litmus
tests, but they do want ideological bona fides. They want to add
to the oath of office the phrase: ". . . and I do hereby pledge
never to inquire into the constitutionality of Roe v. Wade."
"Ideology"
is a tricky word, and is not used by careful word men except when
they mean one particular thing. The reason for this is that the
word suggests the superordination of creed over reason. It contends
against philosophy, so that the ideologue can find himself defending
slavery because slavery survived the founding of the republic. Philosophy
prevailed over ideology when Lincoln reasoned his way to emancipation,
even though the constitutionality of his proclamation was challengeable.
What has got
very much lost in the two generations in which the Supreme Court
has taken on the role of moral tribunal is any sense of intellectual
affront, let alone enduring resistance. The reason for this is that
most intellectuals applaud the decisions arrived at by the Court,
and are therefore willing to dismiss analytical scruple. A foremost
constitutional scholar at Princeton was able, in 1956, to challenge
Brown v. Board of Education (eliminating school segregation)
simply on the grounds that the Court's reasoning was defective.
There are thoughtful reservations about the means used to invalidate
the old Connecticut law on birth control (Griswold v. Connecticut)
but again, because we oppose birth-control laws, any reasoning used
to invalidate them becomes consecrated.
Sluggishness
takes over, as in judicial controversies involving religion. Here
is a field in which soldiers of anti-religion are very active. What
surprises is indifference to the weapons they use. The venerable
Prof. Walter Berns, in his new book, Making Patriots, traces
the forces that engendered the Constitution and were thought important
in promoting that virtue thought necessary for successful self-government.
In his quiet, scholarly way, Berns discusses the 1940s court cases
that resulted in disallowing any interface between religion and
public education. Having done so, he drops the following footnote:
"Everson v. Board of Education, 330 U.S. 1 (1947);
McCollum v. Board of Education, 333 U.S. 203 (1948).
It was in the first of these cases that Justice Wiley B. Rutledge
said that the purpose of the First Amendment 'was to create a complete
and permanent separation of the spheres of religious activity and
civil authority by comprehensively forbidding every form of public
aid or support for religion.'" Then just one sentence of commentary.
One killer sentence: "Unless he intended deliberately to deceive,
no one with any knowledge of our history could have written this."
But separation
of church and state ideology is king. So is equal treatment. One
expression of it got from Prof. David Gelernter of Yale the most
withering summary in recent judicial Criticism:
"The
Virginia Military Institute used to be male-only," Gelernter
began, in his book, Drawing Life. "The elite didn't
like that, and set to work. A Washington Post columnist wrote
that VMI existed in a 'medieval time warp, in which brotherhood
is forged through sadomasochistic rituals in a foreign monastery
supported by the state for its own Byzantine purposes.' A state
senator from Virginia notified the world that she had 'trouble with
young men who want to shave their heads and shower together.' The
elite hated VMI, and no doubt VMI hated the elite — another even
matchup, except that, when it occurred to the elite one afternoon
on the way to the water cooler that VMI's way of life ought to be
wiped out (just a casual notion, inasmuch as the likes of VMI hardly
matter to the elite one way or the other), it was duly wiped out.
The old regime was crushed like a beer can under a tank tread and
the Institute is now, needless to say, coed. Having put things right
and fundamentally refashioned the quirky, proud old college, the
elite is unlikely to think about it again for the next hundred years.
This is no conspiracy; the lawyers who argued for the Justice Department,
the reporters who covered the case and the Supreme Court majority
that decided it all, just happened to see eye- to-eye with the intelligentsia."
It is possible
that when Mr. Bush comes in with his next nomination, these tensions
are going to get aired. If they do, it might sound more like an
explosion than a ventilation. There is that kind of unease out there,
as should be expected from a republic whose principal laws are written
by unelected men and women. The question is not shaping up as it
should, namely: Stop doing that. Rather, it is shaping up as: Make
sure that their successors do as we wish them to do. Stand by for
the first nominee.
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