Politics & Policy

Moral Capital and The Courts

The Left is destroying traditional morality.

EDITOR’S NOTE:: This is the first in a series of five excerpts from It Takes a Family, by Sen. Rick Santorum. Together they comprise chapter 23, “The Rule of Judges.”

The village elders (a.k.a. left-wing members of Congress) introduce very few bills–almost none that attract more than one or two cosponsors. There are no hearings where Congress and the public can hear arguments about the merits to society of changing its moral fabric. Did Congress pass a law that said it was illegal to display a Christmas crèche on public property, tell us we could not recite the pledge that we are “one nation under God” in schools, or legislate away displays of the Ten Commandments from public buildings? Did we pass a constitutional amendment that gave anyone a right to marry as many people of whatever gender they want? Did we pass an amendment that gave women the right to abort their children at any time, for any reason, during pregnancy? Did we pass a law that minors could undergo the surgical procedure of abortion without parental consent or notification? The answer to all of these questions is: No! Not in one state legislature, much less in the U.S. Congress, did the democratic branches of government, the people’s branches, pass such amendments or enact such laws. How could the moral fabric of America be so torn apart without so much as a single act of Congress duly signed by the president?

The answer is, of course, the courts–most particularly, the federal courts. A generation ago, liberals figured out something that most conservatives couldn’t have dreamed of in their worst nightmare. A few well-positioned autocrats can do what most Americans thought, and the Constitution says, takes two-thirds of the Congress and three-quarters of the state legislatures to do: namely, change the Constitution to mean whatever they want it to mean. The plan was simple. Put justices on the Supreme Court, backed up by lower court judges, to “modernize” our Constitution by fiat, with the claim that Supreme Court decisions, whether based on the words of the Constitution or not, have the same status as the Constitution itself.

How often do we hear that our founding compact needs to be a living, breathing document whose meaning changes with the times? Never mind what the words of our Constitution actually say; never mind the clear intent of the Constitution’s writers and signers; never mind two hundred years of judicial interpretation; never mind the centuries-old wisdom of the common law: We are much wiser today than our predecessors. Or so goes the liberal boast. In fact, it is said, we are now able to see just what they were “getting at” even better than they could–as if the U.S. Constitution were only a “nice try” at a plan of government.

I have been referring to the Left as the “village elders.” Well, when it comes to the Court and its activist decisions, we have come to the high oligarchy of the village elders: accountable to no one, deciding the most important and troubling issues of our time, issues that speak to our very identity as a people and even as human beings. And all of this has been done undemocratically–even anti-democratically.

With Congress, if the people decide its representatives have made a mistake, the people can throw them out and bring in different ones to correct with new laws any errors perpetrated by the old. But the Supreme Court almost never has second thoughts: It certainly has not had second thoughts about its fundamental project of the past generation, the project of moral revolution enshrined in law. In fact, in the infamous Casey decision in 1992, which reaffirmed Roe v. Wade and the abortion license, the Court’s majority opinion actually said that widespread popular opposition to Roe was an important reason for the Court to stick to its pro-abortion decision: To do otherwise would “subvert” the Court’s “legitimacy.” In other words, the village elders have spoken, and it is up to the American people to shut up and obey.

Alexander Hamilton in the Federalist papers called the courts the “least dangerous branch” of the new federal government. Could our founders, who had thrown off monarchic rule in the name of democracy, ever have imagined such judicial arrogance? Actually, some eventually did. Thomas Jefferson said in 1821:

The germ of destruction of our nation is in the power of the judiciary, an irresponsible body–working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief over the field of jurisdiction, until all shall render powerless the checks of one branch over the other and will become as venal and oppressive as the government from which we separated.

We now see who was right. Sodomy and abortion are now not only legal; they are constitutional rights. What is more, our courts have been coming closer with every decision to proclaiming that there can be no difference, in law, between marriage and cohabitation. And of course we are also on the verge of court-mandated same-sex marriage.

I often use the extended metaphor of various kinds of “capital.” When it comes to what has happened to our moral capital in the past generation or two, I am stymied for a verb to use. It wasn’t “squandered” or “spent down”; it didn’t “trickle away.” The verbs that come to mind are destroyed and replaced. Traditional morality is being destroyed, and being replaced by something that claims to be morality, but ultimately has little social benefit or ability to sustain the democratic experiment. In China during the so-called Great Leap Forward at the end of the 1950s, Chairman Mao ordered every town and village to participate in smelting iron for steel production. The promise was that through the new techniques of Communism, China would quickly surpass Western capitalist nations in steel. Obedient to their orders, peasants melted down pots and pans and farm implements, with the promise that shiny new and better utensils of steel would be quickly returned. What in fact happened was that these villagers were left with large lumps of useless iron–and with no tools left to farm with. One of the world’s greatest famines soon followed. What we Americans did with our moral capital over the last generation is like what those Chinese peasants did with their capital tools for farming: On government orders–in our case, on Court orders–we melted it down, for nothing.

Senator Rick Santorum is the junior United States senator from Pennsylvania. Chairman of the Senate Republican Conference, he is the third-highest-ranking Republican in the U.S. Senate.


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