- The Washington Times - Tuesday, December 24, 2002

Kenneth W. Starr is best known as the former Whitewater independent counsel, but he also has been the U.S. solicitor general, a circuit court judge and a Supreme Court clerk for Chief Justice Warren Burger. He is now in private practice and has published a book, "First Among Equals: The Supreme Court in American Life." The following are excerpts from a speech he gave Friday to the Conservative Women's Network at the Heritage Foundation.
The Constitution was really the product of a number of very wise individuals who gathered together in Philadelphia. One of them was James Madison, the thirtysomething thoughtful architect of our Constitution. One of the things that he argued on the floor of the convention in Philadelphia, then argued quite actively in the Federalist papers and during the ratification debates in his native, beloved commonwealth of Virginia was this: The liberty of the people lies not it what he called parchment barriers but rather in structural arrangements that lie in the architecture of government.
Think of the former Soviet Union and that constitution. If you ever look at the constitution of the former Soviet Union, it is an impressive, mighty document. And yet it was a parchment barrier. It did not protect the liberties of the people. The structural arrangements that, as James Madison said, serve us well, we now summarize as separation of powers. It's so fundamental. And therein federalism lies. One of the hallmark issues of the Rehnquist court is that, in the face of a lot of criticism, the court has just been adamant and steadfastly faithful to the vision that Mr. Madison and others lifted up; that this is a federal republic. Ours is a government of numerous powers. I worry that the rising generation may not know this. It is simply not the case that every time there is a social problem, Congress is empowered to address it. Or at least to address all the ramifications of it. And sometimes this comes as a bit of a surprise, I think to members of Congress and to the American people.
Not so long ago, Congress was very concerned about violence in and around the schools. Who isn't? Who isn't thoughtfully concerned about violence among young people and in our culture? So Congress held hearings and [provided] a statute that forbade the possession of weapons in and around the schools, public and private. I'm sure when it was passed and the president signed it into law, thoughtful Americans said, "Well, isn't this nice. Congress is stepping to resolve a problem." The Supreme Court of the United States declared it unconstitutional.
Now, how thoughtless. They must love violence up there at the Supreme Court. No, not at all. And in a very thoughtful opinion, crafted by Justice [Anthony M.] Kennedy and enjoined by Justice Sandra Day O'Connor, Justice Kennedy said while Congress went about its work, it did so in such a way that the logic of what it has done will enable Congress to take over the education system in the United States on the theory that it affects our economy. What doesn't affect our economy? The law of family relations, the law of child custody, it all affects our economy. Can Congress take that over? Justice Kennedy and Justice O'Connor worried that if we allow this, there really is no logical stopping point.
[My wife,] Alice, and I recently went through something that we simply call the recent unpleasantness. It was such a difficult and unpleasant and extreme thing for the country. Aren't we glad that chapter in our history is passed and people can really lift up the C-word, the character word, and really mean it?
Let me lift up one principle that is so powerful in the court's work that should resonate with all of us as men and brethren of faith and good will. That is the principle of equality: Treat people equally.
[Regarding] school choice and the ability of individuals in the faith community to participate simply on an equal basis, we are all a minority of one. So treat us as individuals. Don't single us out especially for disfavorable treatment. Don't prevent us the ability to vote and to participate in public life on the basis of race, gender or religion. Just treat us the same. No preferential treatment.
In a long-running desegregation case, a district judge in Ohio imposed a receivership on the Cleveland school district even though more money per capita was being spent in Cleveland than in any other Ohio school district. But the scores of those children were so low, abysmally low. And finally, a U.S. district judge said, "I give up. The school board is now out of business. You are fired." And did he say the money goes to some private citizen? No, he said, "And I now direct the state superintendent who is ultimately responsible for the laws of Ohio to come and take over the school systems."
The general assembly of Ohio and the governor, now Senator [George V.] Voinovich, responded in this way. We want to use every educational resource available to us. And so they passed what we would call a charter-school bill. But they also said we also want to buy those educational seats that might be out there in accredited institutions, institutions that are providing education to the children of Cleveland. Let's empower minority parents that cannot afford to buy those seats to pay the tuition to send those children to those schools.
Do you know what that is? That is the equality principle. What is truth? Everyone in the same way says, as a public policy matter, you should be able to choose what is right for your children and educational options. And if that is a religiously affiliated institution, a religiously affiliated school, that is your choice. We're not coercing you. We're empowering you. You make the choice. We are not guiding, channeling, directing or otherwise suggesting that you avail yourself to what we are doing. We just want to make it available to you.
That is the equality principle at work. Treat everyone alike. No preferences. You say you want more money going into school. Just allow everyone to be treated the same. How powerful that is.
Treat all individuals as individuals were intended to be. We should be kind to his or her own views, with respect to matters of faith or non-faith. Everyone should be treated equally and with dignity. And the conscience of that individual should be assiduously protected. We don't want to coerce. At the same time, a country should be able to sum up and recall its history and its traditions. Justice William Orval Douglas wrote, "We are a religious people as institutions presuppose the existence of a divine being." We don't ask everyone to agree with that. That is the beauty of the United States. Whatever your views are, it is your right, your God-given right as many of us feel, to hold your own view. But at the same time, we do have this history and tradition. At Thanksgiving, the pilgrims were not gathering to give thanks to the Indians. They did invite the Indians, but they were giving thanks to the Almighty.
A nation should be able to recall its past and to treasure its history and its heritage but at the same time protect the freedom of conscience. But who is to say what the rules are? Well, ultimately it is the Supreme Court, because even in Washington it is said first among equals.

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