In Sunset Boulevard, silent-screen star Norma Desmond listens as a young admirer tactlessly recalls her faded glory. “You used to be in pictures,” says the fan. “You used to be big.”
“I am big,” replies Norma, her voice dripping with contempt. “It’s the pictures that got small.”
If only our fading Constitution could speak, it would summon all the grandeur of its illustrious past and say, echoing Norma Desmond, “I am big. It’s the Supreme Court that got small.”
As the Supreme Court begins its new term, have you found yourself wondering why the Court’s docket always seems to be littered with arcane issues of little consequence, while our vital liberties are being continually eroded by government? You will not find the answer in a typical microscopic analysis of changes in the Court’s thinking from session to session. Only a wider historical perspective, one that penetrates to philosophic fundamentals, will detect the seismic shift that has led the Court to forsake its essential judicial function.
America’s Founding Fathers swept away centuries of tradition in which the individual had been subservient to the collective — to family, community or nation. The Founders held that to protect human life and human progress in society, the individual must be sovereign. They held that each individual has an objective right to his own life and his own happiness — including the right to his property, without which no other rights are possible. They held that individual rights are inalienable, that is, that no force on earth — no monarch, no parliament, no mob or legislative majority — could rightfully violate them.
The Supreme Court was designed to protect these sacred rights against incursion by government. If Congress or any state enacted a law that infringed upon rights, the Court, under the power of judicial review, was to strike it down. The Court was to be the individual’s last line of defense against tyranny — the tyranny of unlimited majority rule.
But today’s leaders have embraced pragmatism, the philosophy that claims there are no absolutes and no principles, only subjective opinions guided by expediency. The only way, therefore, to prevent society from degenerating into anarchy — the pragmatists concluded — is by enshrining unrestrained majority rule.
According to this view, the individual citizen lives, not by right, but by society’s permission — for which the majority can set whatever conditions it wishes. As a chilling example, consider that almost a century ago the grandfather of Supreme Court pragmatism, Justice Oliver Wendell Holmes, characterized the First Amendment’s guarantee of freedom of speech as nothing but an arbitrary “experiment” which, if the citizens tire of it, may be repealed tomorrow with impunity.
Without the unyielding principle of individual rights as the moral yardstick for judging the acts of legislatures and executives, the Supreme Court is impotent to engage in proper judicial review. As a result, government routinely violates individual rights while the Court stands idly by.
Businessmen suffered first, and most, from this dereliction, as the Court permitted once-sacrosanct property rights, such as freedom of contract, to be crushed by majority rule. Few people remember that the Supreme Court once protected property rights, e.g., a company’s right to pay workers any wage they voluntarily accept, or its right to function without a state license — even though they are not concretely listed in the Constitution. The Court used to understand the principle of individual rights. Now, however, the Court allows lawmakers to exercise virtually unlimited power over production, employment and trade.
Because businesses know the Court will not protect them, they see no choice but to compromise when their rights are threatened. For example, the tobacco industry would never have agreed to the unprecedented controls over its right to free trade — the massive fines, the debilitating regulations, the authoritarian censorship — were it not for the Court’s abject surrender of its Constitutional mission.
Other rights have fared no better. Recall what happened in 1986, in Bowers v. Hardwick, when the Court ruled that a homosexual has no right to pursue sexual pleasure in the privacy of his home, if the majority vote of a legislature has prohibited it. And earlier this year, in Washington v. Glucksberg, the Court declared that a terminally ill individual has no right to assisted suicide if a majority of society refuses to allow it.
Indeed, it is only a matter of time before a woman’s right to choose an abortion sinks under this pragmatist/collectivist tide, as the Court permits the gradual demise of Roe v. Wade — the last surviving example of proper judicial review.
Only a philosophical renaissance restoring individual rights to their place of honor in our Constitutional republic will enable the Supreme Court to reclaim its vital role as defender of the individual against the collective.