A Retirement Plan for
Sandra Day O'Connor
The Case for Constitutional
By Susan Shelley
"The Supreme Court, the Supreme Court, the Supreme
Court," Barbra Streisand warned an audience during the 2000 election campaign,
answering her own challenge to name three reasons to vote for Al Gore. It
has escaped no one's notice that the most intense political battles in America
are now fought over nominations to the federal judiciary. This has been blamed
on partisan bitterness. It's much worse than that.
Here's the problem: For many decades, the Supreme
Court has located the source of what we think are our constitutional rights
in the Fourteenth Amendment to the U.S. Constitution. The trouble is, it's
not really there.
That's why the prospect of a Supreme Court retirement
sends the political community to battle stations. Much depends on whether
the new justice will continue to honor the hallucination on which some of
our most significant rights are based.
Take, for example, the illusion that the Fourteenth
Amendment prohibits segregation. In the fifteen years following the amendment's
ratification in 1868, lawsuits challenging school segregation were brought
in Ohio, Indiana, Nevada, California, Louisiana and New York. They failed
If the 39th Congress intended to abolish segregation,
they neglected to tell the Senate gallery, which was segregated, and the
public schools of the District of Columbia, which continued to be segregated
for the next eighty-six years.
It's an unpleasant but unavoidable fact that the
Fourteenth Amendment did not prohibit racial discrimination.
The Civil Rights Bill of 1866, considered by Congress
to be identical with the first section of the Fourteenth Amendment, originally
contained a clause reading, "there shall be no discrimination in civil rights
or immunities among the inhabitants of any State or Territory of the United
States on account of race, color, or previous condition of slavery."
The House of Representatives took that language out
of the bill after concerns were raised that the courts might use it to strike
down school segregation, among other things.
"Some gentlemen were apprehensive," Judiciary Committee
Chairman James F. Wilson explained, "that the words we propose to strike
out might give warrant for a latitudinarian construction not intended."
Rep. Thaddeus Stevens of Pennsylvania argued that
the Fourteenth Amendment should include this sentence: "All laws, state or
national, shall operate impartially and equally on all persons without regard
to color or race."
That language never even made it out of
The fact is, the Constitution has never been amended
to prohibit racial discrimination. Civil rights are secured in the Constitution
by an interpretation of "equal protection" and "due process of law" that
was pulled out of the air.
That's why civil rights advocates can claim that
conservative judicial appointees will threaten all the progress of the last
fifty years. A genuine return to strict construction would wipe out decades
of decisions striking down racially discriminatory state laws.
What would happen if we took Thaddeus Stevens' advice
today and amended the Constitution to prohibit discrimination on the basis
of race or color? Here's one thing: judges would be out of the business of
selecting which forms of racial discrimination are allowable, which are mandatory
and which are prohibited.
Equally hallucinatory is the idea that the Fourteenth
Amendment prohibits sex discrimination. Women's rights are secured by the
same wishful interpretation that protects civil rights. The Equal Rights
Amendment, defeated a generation ago, is worth another try.
Then there's abortion. The legality of abortion in
America rests on Justice William O. Douglas' 1965 discovery of a constitutional
right of privacy, which he saw in a penumbra emanating from the Bill of Rights.
Talk about hallucinations. The flimsy security provided by this constitutional
sooth-saying is apparent to supporters of abortion rights every time Justice
Sandra Day O'Connor mentions retirement property in Arizona.
Suppose the essence of the Roe v. Wade decision
was "constitutionalized" by an amendment. What would happen if the Constitution
plainly stated that a woman has a right to privacy in the first trimester
of her pregnancy and a fetus has a right to life in the third? Here's one
thing: The issue would be out of the federal courts and out of the Senate
confirmation hearings and out of our presidential elections and we would
be done with it.
We have asked too much of the Supreme Court. The justices
are crushed between a boulder of public expectations and the hard ground
of a Constitution that doesn't say what we insist it means. If your knees
knock at the prospect of tinkering with the Constitution, remember this:
We have James Madison's permission, in writing.
© Copyright 2002
by Susan Shelley
This article first appeared
in the Fresno Bee on May 23, 2002.