The Fourteenth Amendment: What
Norms Did "We the People" Establish?
As I said at the beginning of the preceding chapter, several of the most divisive moral conflicts that have beset us Americans since the end of World War II have been transmuted into constitutional conflicts -- conflicts about what the Constitution of the United States forbids -- and resolved as such. The particular constitutional conflicts I examine in this book -- over racial segregation, race-based affirmative action, sex-based discrimination, homosexuality, abortion, and physician-assisted suicide -- are, in the main, conflicts about what the Fourteenth Amendment forbids. What Raoul Berger wrote in 1977, in Government by Judiciary: The Transformation of the Fourteenth Amendment, is no less true today: "Because the [Fourteenth] Amendment . . . furnishes the chief fulcrum for [the Supreme Court's] control of controversial policies, the question whether such control is authorized by the Constitution is of great practical importance." 1
Some constitutional scholars -- most famously, perhaps, Robert Bork -- have concurred in Berger's unequivocal judgment that the Fourteenth Amendment authorizes little if any "such control". ( Berger has delivered that judgment in many venues, but nowhere more prominently than in Government by Judiciary.) In 1989, in The Tempting of America: The Political Seduction of the Law, Bork argued at length that section one of the Fourteenth Amendment has been, in the hands of the modern Supreme Court, an instrument of "judicial imperialism". 2 In 1996, citing recent Fourteenth Amendment decisions by the Court, Bork declared that "[t]he most important moral, political, and cultural decisions affecting our lives are being steadily removed from democratic control."3 According to Bork, the justices of the Supreme Court have been "behaving like a 'band of outlaws.' . . . An outlaw is a person who coerces others without warrant in law. That is precisely what a majority of the present Supreme Court does. That is, given the opportunity, what the Supreme Court has always done." 4 Referring mainly to Fourteenth Amendment decisions, the editors of the periodical in which Bork 1996 essay appeared commented on "troubling judicial actions that add up to an entrenched pattern of government by judges that is nothing less than the usurpation of politics. . . . Again and