Roanoke Times
                 Copyright (c) 1995, Landmark Communications, Inc.

DATE: TUESDAY, March 22, 1994                   TAG: 9403260013
SECTION: EDITORIAL                    PAGE: A5   EDITION: METRO 
SOURCE: JAMES P. PINKERTON
DATELINE:                                 LENGTH: Medium

ACTIVISM

This turn of events speaks volumes about the changing nature of power in America. Familiar coalitions that once dominated American politics have grown weaker, ceding power to new identity groups.

The waxing and waning of the various tiles of the American mosaic is healthy. Civil War veterans, for example, are not the force they once were.

What's not healthy is the rise of nondemocratic judicial activism. One needn't question the logic of Marbury vs. Madison, or even oppose the idea of gay participation in St. Patrick's Day parades, to believe that judges have gone too far in their quest to replace the American tradition of democratic and community decision-making with their own legal hothouse version of civil and human rights.

That an Irish-American group would fall victim to such judicial clout is telling, because the Irish were once the most politically potent ethnic group in America. Poor, hungry and discriminated against when they arrived, Irish immigrants developed a knack for voting early and often. Their swelling numbers were the steam in the machine they used to roll over their opponents, typically Yankee Protestants. The Irish-American power bases were the Roman Catholic Church, the Democratic Party and the cities.

Boston was home to such Irish-American princes as James Michael Curley, John F. Kennedy and Tip O'Neill. The zenith of Irish-American muscle was 1960, when JFK was elected to the White House.

Green Power faded after that. Kennedy's election removed a collective chip from Irish shoulders, and thereafter they increasingly looked to the middle-class pleasures of the suburban melting pot. Ancient customs are frequently forged in adversity; they are hard-pressed to survive prosperity and secular pressure. Today, only a third of Irish-Americans identify themselves as Catholic.

Still, Americans have the same desire for solidarity and affinity, but it's taking new forms. The most energetic of the new activists are gays and lesbians; the same sense of grievance that propelled the Irish a century ago animates them today. The gays' desire to march is in keeping with the traditional trajectory of any movement on the way up, seeking its place in the sun.

It would have been nice if Boston's parade sponsors had welcomed the would-be paraders who, after all, have certifiably Celtic surnames, such as Finn and O'Connor. But the sponsors shouldn't have to meet someone else's definition of ``nice'' because, in a free country, the rights of even the not-so-nice must be protected.

Unfortunately, many judges don't see it that way. And that has implications way beyond who gets to march in parades. In the past few decades, judges have stepped forward to propound a new legal doctrine - what Harvard's Mary Ann Glendon calls ``radical personal individualism'' - that has disrupted the traditional, organic relationship between the citizen and the state.

Today, hardly a city in America doesn't have a court order controlling the schools, prisons, mental hospitals, etc. Ask yourself: Are education, crime and homelessness being handled better since judges got in the micro-management business?

Judicial control undermines the fundamental precept of American democracy: that legitimate power comes from the informed consent of the governed. Today, gays and many other activist groups see judges as allies. But what about tomorrow? Those who most put their faith in the power of elites are most at risk when the wheel of arbitrary decision making turns, as it always does.

James P. Pinkerton, a Washington-based senior fellow of the Manhattan Institute, wrote this for Newsday.

L.A. Times-Washington Post News Service