Rule of Law, Rule of Men—Take Your Pick

Articles

Brooks A. Mick

Rule of Law, Rule of Men—Take Your Pick
June 27, 2003

I am reminded of the old joke: “Clean mind, clean body—take your pick.”

It seems we can’t get any U.S. Supreme Court justice to take a consistent stand for the rule of law. Even the supposedly conservative and non- activist judges can’t be consistent.

Surfing the tide of history, hanging ten, and shooting the curl like a veteran surfer, Clarence Thomas comes down foursquare for the rule of law, for equal protection, in the Michigan affirmative action case. Then, falling off the surfboard, he can’t seem to see that equal protection should also apply in the Texas sodomy case, and he can’t see that the amendment assuring us the right to security in our persons and our homes self- evidently means that there is a right to privacy in our bedrooms.

And, surfing the same equal protection tide, but in an opposite direction, Sandra Day O’Connor concludes that, indeed, equal protection applies regarding Texas sodomy but, perversely, does not apply in the Michigan affirmative action case. And she decides that she can IGNORE THE LAW OF THE LAND, the Constitution, in this case because she feels “compelling reasons.”

In the past, we should note, justices have found “compelling reasons” to justify slavery, segregation, and other abominations. I submit that “compelling reasons” is a code word meaning “we’re ignoring the law and here’s how we’re rationalizing it.” As the great sci-fi author, Robert A. Heinlein said, “Man is not the rational animal, but the rationalizing one.”

One should also note that it is not just the activist liberal judges, but all judges, conservative and liberal and moderate, who are capable of ignoring the law when their prejudices interfere with the law’s rational application.

What we need, I submit, are not conservative or liberal judges, but strict constructionists. A law built on the prejudices of the moment is an insecure guide in our lives.

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