Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: WEDNESDAY, March 24, 1993 TAG: 9303240314
SECTION: EDITORIAL PAGE: A-9 EDITION: METRO
SOURCE: CAL THOMAS
DATELINE: LENGTH: Medium
A SAD FAREWELL
WHEN FUTURE generations look back on the contributions Justice Byron White made to the Supreme Court and to the country, they will not focus on matters involving interstate commerce and legal technicalities.Instead, they will recall that White was a strong advocate for the unborn and a firm opponent of the efforts to win official approval for the homosexual lifestyle.
"The court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries," wrote White in his eloquent dissent from the 1973 Roe vs. Wade case, which opened the door to abortion on demand, for any reason.
To White, any claim to a constitutional right to homosexual conduct "is, at best, facetious."
This supreme logic may disappear with White's retirement. President Clinton, whose party argued during the '80 and '84 campaigns against using litmus tests - that is, picking justices who do not believe the right to abortion is guaranteed by the Constitution - because it would cause severe damage to our founding document, now plans to use abortion, or "the right to privacy," as his own litmus test in selecting White's replacement.
President Clinton will nominate someone from the sociological school of law, who believes the law should be tailored to fit the wants of contemporary society. For Clinton, the law is not something that is fixed and to which people should be conformed for their own and the society's ultimate good.
Charles Fried, Ronald Reagan's solicitor general from 1985 to 1989, wrote of the chasm between modern opposing views of law in his book "Order and Law:" "The ideal behind my intuitive picture of how judges should decide is the liberal ideal of the rule of law, which holds that men of intelligence and reasonable good will can come to a fair measure of agreement about what the law is, and that our liberty is most secure when in the end it is to the rule of law that government power is responsible."
Despite conservative efforts to return the court to its roots, that is not the direction the court has been going in the last 30 years.
The liberal wing, led recently by William Brennan and Harry Blackmun, has focused not on interpreting the Constitution but on "equality of outcome." Fried writes, "For the rule of law opposes every attempt to define justice in terms of end results; how the world must end up looking, how people must be, and how they must stand in relation to one another."
The battle between those who believe the "original intent" of the founders is primary and those who hold the modernist view that the law is just one more ideological battleground, the spoils of which go to the victor in the last presidential election, ensures that respect for law will continue to decline.
If law is not immutable, at least in the critical areas involving life, freedom of religion and human relationships, then it breeds contempt. It sends a message that says I do not have to take law seriously or show it much respect, because what I want to do may be allowed if I can just get my candidate into the White House.
"Originalism" provides a standard, a safe harbor for law and for those who live under it, not above it, because, in Fried's words, it infers "general principles from specific constitutional provisions and then [applies] those principles to new cases."
President Clinton's view of law is quite different. It begins not with the Constitution but with a political agenda and then attempts to rewrite the Constitution to fit it.
With Justice White's departure, the Supreme Court will edge ever closer to what Justice Oliver Wendell Holmes envisioned in "The Common Law."
To Holmes, the law ought to be based on experience. "Truth is the majority vote of that nation that can lick all others," he said. In a 1926 letter to John C.H. Wu, Holmes wrote, "So when it comes to the development of a corpus juris the ultimate question is what do the dominant forces of the community want and do they want it hard enough to disregard whatever inhibitions must stand in the way."
This is the philosophy of a materialistic society that sees itself as autonomous and whose sole objective is self-gratification. It is the philosophy that was recently abandoned in Russia and it is one that Justice White rejected.
But America is now embracing it with fervor, oblivious of where it has led other nations and where it will lead us: to decline and destruction. Expect President Clinton to nominate someone who will help speed the process along.
Los Angeles Times Syndicate