In a radio address last year, President Clinton railed against congressional Republicans who were stalling on his nominees to the federal bench and had even threatened some sitting judges with impeachment. Their actions, he claimed, had endangered our tradition of judicial independence, and were an attack on the rule of law itself. The truth, of course, is exactly the opposite. For many years, the federal judiciary has been operating in a manner that is a gross departure from the Framers’ intentions. Is there, then, any hope of reclaiming the federal courts, of bringing them back to their original role in the Old Republic? Perhaps, and a tiny ray of hope shimmers in some recent decisions rendered from the federal benches.

What would a jurisprudence that tiled to recapture the insights of the Framers actually look like? The first principle of early national jurisprudence was that law cannot be understood without some sense of its divine purpose. The Framers believed that no American legal order could subsist without morality and that morality depended upon religion. Most of the early state constitutions had religious requirements for the exercise of the franchise or for holding office, three of the early states had established churches, and even the federal Constitution — which sought scrupulously not to favor particular religious establishments or sectarian creeds—contained several references to our shared Christian heritage. The First Amendment, which guaranteed freedom of religion and forbade Congress from legislating “an establishment of religion,” was not—as most now wrongly believe—an attempt to create a “Godless Constitution” or a secular society. In fact, the First Amendment was designed to preserve the prerogatives of the people of the states to decide for themselves how best to integrate religion and society.

Preserving these state prerogatives—the express subjects of the Ninth and Tenth amendments, and the implicit aim of most of the rest of the Bill of Rights—was a reflection of another basic principle of the Framers’ design. This principle, inherent in the Constitution’s scheme of dual state and federal sovereignty, might be described as the principle of proliferating variety. It assumes that there is no single solution for social problems for all places and all times, and is sensitive to the need for the people prudently to adjust to differing social and environmental circumstances. The Framers believed that true liberty could not be mandated by the central government but had to emerge from the very soil, as it were, of the individual states and localities.

Several things follow from this principle, including the realization that perfect equality among citizens is unattainable. There must always be some hierarchy (and some sort of natural aristocracy) in society. In addition, variety demands considerable liberty in order to flourish, and liberty is secured by personal property and by the rule of law. Finally, liberty, property, morals, and religion must be safeguarded by intermediate entities between the individual and the central government. These entities include states, towns, communities, churches, and — perhaps most important—the family.

It takes no more than a statement of these basic principles to realize just how far the federal courts have strayed from the Framers’ understanding. Since the Supreme Court’s decisions in the early 60’s that mandatory prayer and Bible reading in the public schools were unconstitutional—decisions which perverted the original understanding of the First Amendment as securing state religious prerogatives—the federal courts have rabidly enforced a secular vision of society. Utterly unfamiliar with basic constitutional principles such as those found in the Federalist—in which Madison and Jay both recognize the importance of a shared Christian culture in ensuring the virtues necessary for self-government-federal judges and most national opinion- mongers have driven religion (which they see as divisive) from the public square. Religion is still tolerated, of course, but it is regarded by most members of the chattering classes as a character flaw best displayed in private. Forty years ago, it was not uncommon for public figures to refer to America as a “Christian nation,” but any politician who today repeats this obvious truth is roundly excoriated for intolerance.

“Tolerance,” our current public creed that anything goes, is another way of expressing the ascendance in our culture not of classical liberty—which was grounded in responsibility and duty hut of self-indulgence. Look at the so-called “mystery passage” from the plurality opinion in the 1992 Planned Parenthood v. Casey decision. The passage, invoked in support of the Supreme Court’s indefensible ruling that the 14th Amendment guarantees abortion “rights,” reads: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” The best that can be said of the “mystery passage” is that it is fatuous; the worst is that it is subversive of societal order and of the Framers’ conception of human life as a sacred gift from God. In 1787, common law regarded most abortions as murder, and the Framers would hardly have objected to any state’s prohibition of abortion. At the time of the 14th Amendment, many states had such prohibitions, and no one suggested that the amendment outlawed such legislation. The notion that the 14th Amendment, in the service of “a right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life,” mandates a woman’s right to terminate the life of a child within her is a perversion of history and a repudiation of our constitutional heritage.

The actual decision in Casey reaffirmed Roe v. Wade‘s mistaken conclusion that abortion was constitutionally protected. Moreover, it declared, inter alia, that the state of Pennsylvania was prevented from requiring married women to notify their spouses before having abortions. Casey illustrates the doubly twisted nature of current 14th Amendment jurisprudence. The Supreme Court decisions prohibiting the states from governmental encouragement of religion perversely read the 14th Amendment’s clauses—”No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”—to mean that the strictures which the Framers of the Bill of Rights placed on the federal government ought to be imposed on the states as well. The actual language of the 14th Amendment was crafted to ensure that newly freed slaves had the same opportunity to use the courts to protect their property and contract rights as did other citizens. The amendment was not designed to tear down the foundation of dual sovereignty on which the Constitution had been erected. It is the grossest judicial usurpation, therefore, to read the 14th Amendment as “incorporating” Bill of Rights prohibitions against the states.

Other travesties resulting from this misreading of the Equal Protection clause include the prohibition on state bicameralism when one house in the legislature is elected based on political units or geography; the prohibition on state-imposed term limits for congressional representatives; the prohibition on state-sponsored male-only military academies; and the prohibition on states outlawing preferential treatment for homosexuals. The plethora of court-imposed restrictions on what states can do, coupled with the federal courts’ increasingly permissive reading of the Commerce Clause to allow federal regulation of almost all state economic, educational, cultural, or political activity, led to such a weakening of state sovereignty that secession might well be perceived as the only reasonable solution for those who want to preserve the Constitution’s original conception of popular self-government.

But reform may be possible. For many years, the federal courts have exacerbated racial tension by mandating remedies for school segregation and by dictating employment and educational practices that required counting by race. These decisions required state and local authorities to divide up the citizenry and dole out rewards based on the color of skin rather than on competence or character. But the mood has changed, and recent decisions by the Supreme Court have made it more difficult for the state and federal governments to dole out benefits according to race, and have even stated that such racial line-drawing threatens to balkanize American society and to stigmatize those favored by such programs. The language employed in the opinions—”strict scrutiny” or “compelling interest”—is maddeningly elusive. Still, the thrust has been clear, and the results have been dramatic. For instance, a federal court of appeals has forbidden Texas to use racial preferences in admissions to its law schools, and California’s Proposition 209, which bars the use of such quotas in any state programs, has been permitted to go into effect.

In the 1996-97 term, the Supreme Court rejected arguments based in essence on the Casey mystery passage and upheld state laws banning assisted suicide on the grounds that the 14th Amendment included no “right to die.” The Court made no move to overrule Casey and Roe, but it significantly undercut the constitutional theory of those cases, and made it clear that (for the moment, at least) it was out of the business of reading new rights into the 14th Amendment.

The federal courts’ hostility to religion appears to be eroding as well. A few terms ago, the Supreme Court upheld the right of religious groups to function on state college campuses on the same terms as secular organizations, and last year the Court explicitly overruled a 1985 decision that barred New York from spending public funds to send teachers to teach remedial education to pupils at private religious schools. The 1985 opinion had declared that such an expenditure was too great an entanglement of the state with religion, but, mysteriously, the 1997 decision simply declared it was not.

The Supreme Court has also voided the so-called Religious Freedom Restoration Act (RFRA), a federal law that attempted to overrule a Supreme Court decision which had given states more freedom to reject claims of religious immunity when applying general statutes. The decision Congress sought to overrule. Employment Division v. Smith (1990), had permitted Colorado to apply sanctions against users of peyote even if they claimed such use was required by their Native American religion. The claimants in that case had maintained that the state had to prove that it was following a policy which could be achieved in virtually no other way, and thus a “compelling” rationale was required before the state could interfere with an individual’s assertion that a religious preference trumped general legislation. The Court, in an important opinion by Justice Scalia—a judge, incidentally, who has been a strong critic of the anti-school prayer and anti-Bible reading decisions and who has often publicly proclaimed his deep religious feelings—upheld the state, and declared that all that was required to sustain the general legislation was that it be pursuant to a rational legislative policy not aimed at interfering with religion. The “rationality” test gave states much more freedom than the previously prevailing “compelling interest” test.

RFRA sought to require the Supreme Court to return to the “compelling interest” standard. To the surprise of most pundits, the Court threw out RFRA, claiming that it was for the Court, not Congress, to set the constitutional standards involved. Not surprisingly. Justice Scalia concurred in the result. While the decision may seem to disfavor religion, it actually strengthens state control over the area, and moves toward recognizing that religion is a matter for the state, not the federal, government. Significantly, Justice Stevens, a dependable member of the bloc that normally supports expansion of the incorporation doctrine and a broadened role for the federal government, declared that RFRA, because it was an attempt by the federal government to meddle in religious matters, violated the First Amendment’s “establishment” clause.

This decision can thus be read as a reaffirmation of federalism and of dual sovereignty, and there are several other recent Supreme Court decisions which point in this direction. One of the most famous was the invalidation of the federal Gun-Free School Zones Act on the grounds that the interstate commerce justification for the act was specious, and that it interfered with educational matters that were the traditional prerogative of the states. This was the first decision in decades that circumscribed the federal government’s Commerce Clause power, which New Deal decisions had expanded to illimitable proportions. A similar limitation occurred in the Brady Bill case, in which the Court declared that provisions of the bill drafting state officials to aid in its enforcement violated principles of dual sovereignty. Both of these were decisions by narrow majorities, and both featured dissents by Clinton appointees to the Court.

But the most significant recent decision may have been the Court’s unanimous rejection of President Clinton’s claim, in the tort action brought against him by Paula Jones, that, as a sitting President, he could not be required to be a defendant in a civil action. There were no prior precedents granting any President such immunity, but since two Justices were appointed by Clinton and his position had strong defenders in the academy, the unanimity was still a surprise. The Court’s embrace of the principle that no person is above the law was both a stunning and reassuring assertion of the rule of law.

Outside the federal courts, there are also some signs that the constitutional doctrines of the Old Republic have not been completely eviscerated. In the law schools, for the first time in memory, a number of scholars, many of whom are quite openly persons of faith (even some at Harvard and Yale), have begun to reveal the weaknesses in the Court’s religion decisions and to criticize the “incorporation doctrine.” For the first time in 30 years, it may become respectable once again to argue the truth—that the incorporation decisions betrayed our essential belief in dual sovereignty and wrongly reduced state citizens’ rights to self-government. Remarkably, some legal historians have even suggested a reexamination of the conditions under which the Reconstruction amendments were passed. These amendments—the 13th, 14th, and 15th, dealing with slavery, the franchise, and the exercise of contract and property rights by the new freedmen—were, as most Southerners (but only a few law professors) remember, the dubious products of coercion, since the Southern states, then under military occupation, were required to pass them as a condition of re-admission to the union. No one expects, and indeed, probably no one in the legal academy advocates, the invalidation of the Reconstruction amendments, but the mere fact that their legitimacy has begun to be discussed ought to cast doubt upon the broad and unwarranted construction of these amendments.

Several judges, lawyers, and legal scholars have also concluded that constitutional law ought to be about more than the self-indulgence mandated in Casey, and many state legislatures and Congress have taken tentative steps to curb the explosion in litigation based on the manufacture of new victims’ rights. Hindering reform is the fact that the current President is sympathetic to the trial lawyers who reap most of the profit from this litigation. Still, it is significant that the only one of President Clinton’s vetoes which has been overridden was of a bill restricting private securities fraud litigation, and imposing sanctions on abusive plaintiffs and their lawyers.

The notion that we have overemphasized rights and neglected responsibilities is also evident in the movement for a constitutional amendment to reverse the Supreme Court’s 1989 five-to-four decision protecting flag-burning. This ruling, which was contrary to the opinions of Earl Warren and Hugo Black, two of the greatest champions of civil liberties in the history of the Court, is a sign of how far the individualistic ideology of self-indulgence has gone. Forty-nine state legislatures have petitioned Congress to pass the flag amendment, and it easily achieved the required two-thirds majority in the House of Representatives, but, at this writing, it is still two or three votes short in the Senate, where the individualistic ideology is stronger. The current text of the amendment (“Congress shall have the power to prohibit the physical desecration of the flag of the United States”) is not—alas!—much of an exercise in dual sovereignty, and would have the effect of reinforcing a power of the central government, but the grassroots movement pushing for the amendment does so in the spirit of community, of piety, of shared responsibility, and of respect for the self-sacrifice that the flag represents.

Most of these encouraging Supreme Court decisions have been by a slim five-to-four majority (as have the most discouraging decisions), and the retirement of any one of the conservative majority of the Court (Rehnquist, O’Connor, Scalia, Kennedy, or Thomas) could lead to a sudden reversal of these benevolent developments. Any appointments by Democrats would likely bolster the rights-oriented, pro-affirmative action, and anti-federalistic views of the Clinton appointees, Breyer and Ginsburg. Moreover, if congressional Republicans give in to the President’s badgering, he might well have a chance to pack the lower federal courts. Ironically, if the Court keeps its present composition, it is likely to defer more and more to the lower courts, and thus, if the President has his way, the promising flowering of the jurisprudence of the Old Republic may be nipped in the bud.

But even the present five-person majority of the Supreme Court cannot always be counted on to do the right thing. Justices O’Connor and Kennedy were, after all, members of the plurality which issued the “mystery passage” in Casey, and Justice O’Connor, a former state legislator, has often refused to articulate clear rules of law, instead engaging in line-drawing and balancing tests which are appropriate for the people’s representatives but not for its judges. The “balancing test” regarding governmental entanglement with religion, to which Justice O’Connor was devoted, led her to dissent in the case overruling RFRA, and though she voted on the right side of the decision to allow New York to provide remedial education in a private-school setting, she has joined with four other members of the Court (one of them Justice Kennedy) to bar even nonsectarian prayers at middle-school commencements. Justice O’Connor generally can be counted on to take a position against race-based governmental actions, but even there she has left the door open to states to discriminate on the basis of race if they can articulate a “compelling reason.

There are still many good years left in Justice Scalia and Justice Thomas, and Thomas is emerging as a powerful advocate of original understanding and dual sovereignty. George Bush’s boast when he nominated Thomas (that race played no part in his selection, and that he was the most qualified person for the job) seems to have proved fine (at least with regard to the latter assertion). However, there have been rumors that Justice Rehnquist, who has served long and honorably, may be ready for retirement. And Justice O’Connor and Justice Kennedy, while having joined in some laudable decisions, have also demonstrated a reluctance (as they did in Casey) to overrule previous Court precedents even if the reasoning used to reach them is deeply suspect. The fact that President Clinton was reelected even though Senator Dole had promised to appoint judges committed to interpreting rather than rewriting the Constitution suggests that most Americans are still indifferent to the law-making of our unelected Platonic Guardians. On the other hand, the fact that the American public returned majorities to Congress who are generally committed to reining in the judges suggests the contrary. Still, if even the extraordinarily popular flag amendment founders in the Senate, it is unlikely that constitutional amendments will reverse the nefarious Supreme Court precedents, especially those regarding abortion and state-sponsored religious exercise. Friends of the Old Republic should wait to see whether the Court continues along the path represented by recent decisions on race and federalism, and to see whether a conservative Republican is elected in 2000. If not, then the people of the states wanting to restore the Old Republic might be left with no other option but that taken by their forefathers after the election of 1860.