Want to stop the Religious Right? Here's how. Really.

C-SPAN is televising a conference right now held by a group out of Texas called the Judeo-Christian Council for Constitutional Restoration. Rep. Tom DeLay addressed the participants by video, complaining about what they all see as the problem of activist judges who disregard the Constitution. Rep. DeLay explained the congressional option of limiting the jurisdiction of the federal courts by legislation.

If you've read The 37th Amendment, you already know that Congressman DeLay is technically correct. Under Article III, Section 2 of the U.S. Constitution, Congress has the power to tell the Supreme Court it has no authority to review certain kinds of cases. It's called the Exceptions Clause.

It's true that "activist judges" have gone far beyond the Constitution to guarantee privacy rights, civil rights, women's rights, free speech rights, and the rights of people accused of crimes under state jurisdiction.

So if you want to stop the Religious Right, don't try arguing the facts. They're right, take my word for it (after six years of research).

Strict construction of the Constitution would be the most popular idea in America if the Constitution was amended to reflect the well-accepted changes that the U.S. Supreme Court has made over the last eighty years. The problem with strict construction right now is that the Constitution simply doesn't say what most Americans think it means.

I'll bet you think the Fourteenth Amendment, which guarantees to every person the equal protection of the law and due process of law, prohibits racial and gender discrimination.

Guess again. The Fourteenth Amendment was ratified in 1868 after a long, ugly debate that established beyond any doubt that the Northern states would continue to have the right to operate racially segregated schools, ban interracial marriage, and prohibit blacks from serving on juries or holding public office. It didn't even confer the right to vote, which wasn't extended to blacks -- black men, that is -- until the Fifteenth Amendment was ratified a few years later.

Don't even ask what these guys thought about women's rights.

Maybe this is what Justice Antonin Scalia is hinting at when he says he supports "reasonable construction," not "strict construction."

The next time you hear someone say conservative judges will roll back all the progress of the last fifty years in civil rights, you'll know why. It's because the Constitution doesn't ban racial discrimination. The decisions of the U.S. Supreme Court ban racial discrimination. And decisions -- even in areas considered settled law -- have been overturned before.

What's needed to stop judicial activism is the same thing that's needed to stop the Religious Right: constitutional amendments.

Can't be done, you say? Yes, it can. If previous efforts have failed it is because people did not understand why the amendment was needed or because the idea behind the amendment did not have the support of a majority of the country.

To stop the Religious Right, propose an amendment to the Constitution to guarantee a woman's right to privacy in the first three months of her pregnancy and a fetus' right to life in the last three months.

The debate over this amendment would establish pretty quickly that the Religious Right is outnumbered by people of more moderate views. My guess is that the right-to-life guarantee in late pregnancy would split the pro-life vote and leave the Religious Right marginalized, without enough support to get a phone call returned from Capitol Hill.

For more about privacy rights, and how we can secure them, click over to Why There is No Constitutional Right to Privacy, and How to Get One.

For more about the real history of the Fourteenth Amendment (with footnotes -- we're not here to waste your time), read How the First Amendment Came to Protect Topless Dancing, the appendix to The 37th Amendment: A Novel.



Copyright 2005 by Susan Shelley