A Retirement Plan for
Sandra Day O'Connor

The Case for Constitutional Amendments

By Susan Shelley

"The Supreme Court, the Supreme Court, the Supreme Court," Barbra Streisand warned an audience during the 2000 election campaign, answering her own challenge to name three reasons to vote for Al Gore. It has escaped no one's notice that the most intense political battles in America are now fought over nominations to the federal judiciary. This has been blamed on partisan bitterness. It's much worse than that.

Here's the problem: For many decades, the Supreme Court has located the source of what we think are our constitutional rights in the Fourteenth Amendment to the U.S. Constitution. The trouble is, it's not really there.

That's why the prospect of a Supreme Court retirement sends the political community to battle stations. Much depends on whether the new justice will continue to honor the hallucination on which some of our most significant rights are based.

Take, for example, the illusion that the Fourteenth Amendment prohibits segregation. In the fifteen years following the amendment's ratification in 1868, lawsuits challenging school segregation were brought in Ohio, Indiana, Nevada, California, Louisiana and New York. They failed everywhere.

If the 39th Congress intended to abolish segregation, they neglected to tell the Senate gallery, which was segregated, and the public schools of the District of Columbia, which continued to be segregated for the next eighty-six years.

It's an unpleasant but unavoidable fact that the Fourteenth Amendment did not prohibit racial discrimination.

The Civil Rights Bill of 1866, considered by Congress to be identical with the first section of the Fourteenth Amendment, originally contained a clause reading, "there shall be no discrimination in civil rights or immunities among the inhabitants of any State or Territory of the United States on account of race, color, or previous condition of slavery."

The House of Representatives took that language out of the bill after concerns were raised that the courts might use it to strike down school segregation, among other things.

"Some gentlemen were apprehensive," Judiciary Committee Chairman James F. Wilson explained, "that the words we propose to strike out might give warrant for a latitudinarian construction not intended."

Rep. Thaddeus Stevens of Pennsylvania argued that the Fourteenth Amendment should include this sentence: "All laws, state or national, shall operate impartially and equally on all persons without regard to color or race."

That language never even made it out of subcommittee.

The fact is, the Constitution has never been amended to prohibit racial discrimination. Civil rights are secured in the Constitution by an interpretation of "equal protection" and "due process of law" that was pulled out of the air.

That's why civil rights advocates can claim that conservative judicial appointees will threaten all the progress of the last fifty years. A genuine return to strict construction would wipe out decades of decisions striking down racially discriminatory state laws.

What would happen if we took Thaddeus Stevens' advice today and amended the Constitution to prohibit discrimination on the basis of race or color? Here's one thing: judges would be out of the business of selecting which forms of racial discrimination are allowable, which are mandatory and which are prohibited.

Equally hallucinatory is the idea that the Fourteenth Amendment prohibits sex discrimination. Women's rights are secured by the same wishful interpretation that protects civil rights. The Equal Rights Amendment, defeated a generation ago, is worth another try.

Then there's abortion. The legality of abortion in America rests on Justice William O. Douglas' 1965 discovery of a constitutional right of privacy, which he saw in a penumbra emanating from the Bill of Rights. Talk about hallucinations. The flimsy security provided by this constitutional sooth-saying is apparent to supporters of abortion rights every time Justice Sandra Day O'Connor mentions retirement property in Arizona.

Suppose the essence of the Roe v. Wade decision was "constitutionalized" by an amendment. What would happen if the Constitution plainly stated that a woman has a right to privacy in the first trimester of her pregnancy and a fetus has a right to life in the third? Here's one thing: The issue would be out of the federal courts and out of the Senate confirmation hearings and out of our presidential elections and we would be done with it.

We have asked too much of the Supreme Court. The justices are crushed between a boulder of public expectations and the hard ground of a Constitution that doesn't say what we insist it means. If your knees knock at the prospect of tinkering with the Constitution, remember this: We have James Madison's permission, in writing.

Susan Shelley is the author of the novel, "The 37th Amendment," which includes an appendix on "How the First Amendment Came to Protect Topless Dancing." It can be previewed online at www.The37thAmendment.com.

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