- The Washington Times - Tuesday, September 11, 2001

The virtually voiceless attorney general, John Ashcroft, is squandering a bully pulpit opportunity to influence the constitutional rulings of both federal and state courts. He is leaving unaddressed controversial areas that divided President Bush and rival Al Gore, including abortion, affirmative action, church-state relations and federalism.

Shouldn't Mr. Ashcroft become an advocacy lion and cast aside his mouselike inaudibility?

Constitutional jurisprudence is intellectually flabby. Its North Star, for good or for ill, is conventional wisdom. The public voices that shape orthodoxies are the true decision-makers of constitutional law. As Justice Oliver Wendell Holmes lectured in "The Common Law," "The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed."

The prominence and stature of attorney general of the United States creates a rich opportunity for architecting constitutional doctrines expounded by the courts. Provocative and persistent lecturing of what the law ought to be and employing moral and public policy arguments is imperative. Academic theories of original meaning, a living Constitution, suspect classifications, fundamental rights and the like have never withstood popular sentiments in the long run. That understanding dismays many, but to rant against unprincipled constitutional decisions is as otiose as shouting at bad weather.

Examples of the Supreme Court's surrender to majority attitudes or prejudices are legion if not glorious.

The equal protection clause of the Fourteenth Amendment was construed by the Supreme Court for generations as impotent against flagrant racial or sex discrimination. In 1873 in the Slaughterhouse Cases, before Reconstruction had ended, the high court touted the clause as an Excalibur to secure legal equality for blacks: "We doubt very much whether any action of a state not directed by way of discrimination against Negroes as a class, or on account of their race, will ever be held to come within the purview of this provision. It is so clearly a provision for that race and for that emergency, that a strong case would be necessary for its application to any other."

To facilitate settlement of the Hayes-Tilden presidential dispute, Reconstruction terminated in 1877. Black subordination was accepted to appease the South and to placate strong racist sentiments in the North. The Supreme Court, under the repugnant doctrine of "separate but equal" (which meant fastidiously separate but scrupulously unequal), permitted Jim Crow to flourish for generations despite the blatant sin to equal protection. What ultimately occasioned the court's dagger at Jim Crow in Brown vs. Board of Education (1954) was dramatically altered public sentiments demanding racial fairness in light of black service in two world wars and Korea, and the disgrace of the Scottsboro boys' case and the assassination of 14-year-old Emmett Till, accused of mis-whistling at a white woman.

W.E.B. Dubois had defeated Booker T. Washington on the battlefield of ideas.

The evolution of women's rights under the equal protection clause is a sister case. In 1873, the court sustained a law excluding females from the legal profession in Bradwell vs. Illinois. In a patronizing concurring opinion echoing prevailing orthodoxy, Justice Joseph P. Bradley sermonized: "Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood."

A century later, however, fueled by the likes of the women's suffrage movement, contributions to the world war victories and "The Feminine Mystique," females had climbed in public esteem and respect. Sex equality, not passivity, had become the nation's cherished watchword. The Supreme Court bowed to the new moral and social order in Reed vs. Reed (1971), and held sexual stereotyping unconstitutional. But not a single word of the Fourteenth Amendment had been changed since Bradwell.

President Franklin D. Roosevelt's New Deal was saved from decapitation by the Supreme Court in 1937 much more by John Maynard Keynes' economic gospel of the day, i.e., "The General Theory of Employment, Interest and Money," than by new constitutional theories of federalism.

What made the stewardships of William French Smith and Edwin Meese as attorneys general during the Reagan administration momentous was their systematic and thoughtful challenges to the orthodoxies of the times. As a consequence, the constitutional law of school busing, racial preferences, accommodation of religion in public life, abortion and states' rights were substantially revamped by the Supreme Court in later years. Illustrative are Adarand Constructors, Inc. vs. Pena (1995) (racial preferences), Mitchell vs. Helms (2000) (aid to sectarian schools) and Alden vs. Maine (1999) (state immunity from federal damage suits).

Mr. Ashcroft, in contrast to his Reagan administration counterparts, is emulating more the Sphinx than Cato. He is sitting out the pointed debates over racial preferences in the name of campus diversity, faith-based delivery of welfare services, subsidized abortion on demand, and states' rights as the cradle of innovative thinking and solutions to pressing social problems. Counting the kilos of illegal drugs seized at the borders is commanding more of his attention.

The attorney general might consider reflecting on Talleyrand's quip about King Louis XVI's undistinguished ministers: Never to have said anything nor done anything is a great power, but it ought not to be abused.


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