We're Split


The courts have become the place where some of the most important issues of American social and moral life are now settled.

Justice Sandra Day O'Connor with Justices Anthony Kennedy (at left) and Stephen Breyer

Should abortion be legal and under what circumstances? Ask the court. Should the State of Texas be permitted to have a monument displaying the Ten Commandments? Ask the court. Can a state outlaw certain forms of pornographic material it deems offensive to minors, or to the moral sense of the community? Ask the court. Do homosexuals have a "right to marry" that no legislature can constitutionally deny? Ask the court.

Since the courts now operate as a kind of super-legislature (super because the legislature's rules can be vetoed by the courts, but the court's rules can be vetoed by no outside body), one of the most important questions in American politics has become: Who gets to sit on that august body? What could be more consequential for determining the rules under which we live than who occupies the nine seats of the Supreme Court? These positions are of enduring importance because their occupants serve for life.

Another reason that court nominations have become a battleground is because the Supreme Court is evenly divided, with the liberals and conservatives controlling an equal number of votes, and "swing votes" like that of Sandra Day O'Connor typically determining the outcome. Thus, one or two new appointments could swing the balance of the court toward social conservatism. This is an especially painful prospect for liberals who have lost the presidency and the senate and the House and the state legislatures and now must rely on the courts to enact a liberal social agenda that has little hope of passing the legislative bodies or being enforced by the executive branch of government.

So for the foreseeable future America is reduced to the ridiculous spectacle of seeing major social and moral questions being resolved not by national consensus or debate or even voting but by recourse to the mystical question, "How will Sandra Day O'Connor vote?" The nation's eyes are riveted on this one woman whose whimsical views on school prayer, affirmative action, abortion, and other issues now assume the status of settled law.

There is only one way out of this bizarre and unhappy place, and that is to return to the American people the right and the responsibility for making the rules under which they live. This is not to say that majorities decide everything. Minorities have enumerated rights against majority rule, and yes, it is the job of courts to enforce these rights. But the right to abortion, like the right to gay marriage, is nowhere contained in the Constitution. These are not rights but rather ideological causes masquerading as constitutional privileges.

The reason that courts invent these rights is that the people who want these things cannot persuade a majority of their fellow citizens to go along with them. The courts are essentially their political instrument for achieving a result that they cannot win through the give-and-take of democratic debate.


Dinesh D'Souza. "We're Split." tothesource (June, 2005).

Tothesource is a forum for integrating thinking and action within a moral framework that takes into account our contemporary situation. We will report the insights of cultural experts to the specific issues we face believing these sources will embolden people to greater faith and action.


Dinesh D'Souza is the Robert and Karen Rishwain Fellow at the Hoover Institution at Stanford University. D'Souza has been called one of the "top young public-policy makers in the country" by Investor’s Business Daily. His areas of research include the economy and society, civil rights and affirmative action, cultural issues and politics, and higher education. Dinesh D'Souza's latest book is The Enemy at Home: The Cultural Left and Its Responsibility for 9/11. He is also the author of: Letters to a Young Conservative, What's So Great about America, Illiberal Education: The Politics of Race and Sex on Campus; The End of Racism; Ronald Reagan: How an Ordinary Man Became an Extraordinary Leader; and, most recently, The Virtue of Prosperity: Finding Values in an Age of Techno-Affluence. Dinesh D'Souza is on the Advisory Board of the Catholic Education Resource Center. Visit his website here.

Copyright © 2005 tothesource

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