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Last week showed that judges are an essential part of our democratic system...and...that their business is as messy as that of the other two parts. Three decisions, in particular, were delivered. Two dealt with the first amendment's separation of church and state and all three showed the essential conflict between the rights of the collective and the rights of the individual.
First there was the decision by an appeals court that the pledge of allegiance is unconstitutional when recited in public schools, because of the words "under God" which were added to it in 1954. At that time, we both objected to it as "promotion" of religion and, to an extent, we still find it personally objectionable. Yet, a vast majority of U.S. citizens find it appropriate and worthwhile. Besides, as we long ago realized, no one can EVER force ANYONE to recite these words, either in part or in the whole. So, if you like the pledge...as we do...but don't like those particular words...DON'T SAY THEM!
The second decision, permitting school vouchers in the Cleveland area also involves the first amendment. Since most private schools are run by churches, it was said that school vouchers involve the government in promoting those religions. The Supreme Court, by the narrow margin of five to four, disagreed. So do we. First of all, not ALL private schools are religious in nature. Furthermore, if vouchers are permitted...that is, if parents are free to choose which school will get the tax dollars dispersed by the states exclusively to public schools at present...then free-market competition will GUARANTEE that many other types of private schools will spring up and flourish...or fail. Both our public and our private schools will feel the heat of competition which they dearly need. There are many non-Catholic parents today who send their children to Roman Catholic schools with strong reservations about exposing them to religious doctrines with which they do not agree. They do it for a simple reason. They want their kids to get the best available education and they believe that the Catholic schools provide it. Why not give them other choices as well?
Finally, there was a decision permitting drug testing in schools of those children who wish to participate in extra-curricular activities other than sports. (Note: it is already well established law that testing of athletes is permissible.) The reasoning is that those drugs are illegal and massively damaging to the community and that this overrides the individual rights of the students. Furthermore, even if all drugs were made legal, the VAST majority would not want them made available to children. In the context of current law...again supported by the majority...this makes perfect sense.
We strongly disagree. Not only do we think that the dangers of drug use are exaggerated and that drug testing...in all contexts...is, at best, counterproductive. Finally and most importantly, we feel that individuals should be judged on their actual behavior, not the potential their habits may have of leading them into inappropriate behavior. We also believe that the government of every society has the right...even the duty...to watch out for the rights of the collective as well as the rights of the individual. The "greatest good for the greatest number" is a well established and honored democratic principle, and we totally agree with it.
But, there are deeper issues involved here than our personal beliefs. Former Supreme Court Justice Henry Jackson is credited for saying that the constitution is not a suicide pact...in connection of the suspension of civil rights when we are under attack from outside forces, as we are today. We would add that...contrary to what many libertarians and constitutionalists seem to believe...the constitution is also NOT a religious document. Finally, we must make the point that the constitution says exactly what the current Supreme Court says it says! As final arbiters of all disputes as to the constutionality of ALL laws, they have the final say...at least for the moment...as to what that document says and means. Period.
So, while we will continue to express our personal opinions in this column, we will also recognize that WE do NOT have the final say on what is or is not "just"...what does or does not promote the greatest good or freedom. In that context, we cheer those results that agree with our preconceived notions...like the school voucher decision...hiss and boo at those with which we dispute...like drug testing...and yawn about decisions that we feel have no particular impact one way or another...like the pledge.
But, we remain steadfast in our support for the democratic system that produced those decisions. As we have often stated in previous articles, we think that democracy can be improved, but we stand united with most Americans...as this Fourth of July approaches...in honoring our flag, our country and our political system. U...S...A!
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