 |
| U.S. Court of Appeals Judge
Edith Jones said Supreme Court decisions have had negative
impacts in several areas, including crime and punishment,
pornography, family relations, public order and youth and
education. |
Posted Jan. 30, 2003
Supreme Court Has Been Contributing to
Social Decay, Jones Argues
Since the 1960s, the U.S. Supreme Court has
been issuing decisions contrary to the generally held values of
Americans, imposing a "modish, untested philosophical notions
and extreme libertarianism that would have left the [Constitution's]
Framers aghast," Edith Jones, a judge on the New Orleans-based
U.S. Court of Appeals for the Fifth Circuit, told a packed room
Jan. 28 in a speech sponsored by The Federalist Society.
This series of decisions has done "more
to jeopardize than sustain" the future of American society,
which she said stands "as the most successful and long-lived
experiment in self-government and human freedom in history."
She attributed that success to the framers'
principles of limited government and personal honor and virtue.
The framers' standards of personal conduct were based on the Ten
Commandments and the Golden Rule and, whatever the influences
of Enlightenment thought might have been, the nation's foundational
values were Biblical.
Surveys show that "95 percent of Americans
say they believe in God. People everywhere subscribe to the values
of the Ten Commandments—don't steal, don't kill, don't covet—however
they are phrased," she said.
The Court "got out in front of the self-governing
society, overturning local authorities and self-governing groups
and imposed these values on society," Jones declared. "I
love this country. I love the heritage on which it was built.
I want my children to have that heritage. Once people lose self-control
it results in the growth of repressive government. When you don't
have internal control, you have to have external ones."
Jones outlined five areas in which decisions
have had what she considers socially damaging consequences: crime
and punishment, pornography, family relations, public order and
youth and education. The Warren Court, she contended, "extravagantly
assumed the power to dictate new 'rights' not expressly stated
in the Constitution and in so doing foisted its philosophical
vision on the United States with consequences far beyond the Court's
imagining."
The Court has made good decisions over these
years but the harmful ones have never been "wholly overruled,
although the court has refrained from carrying out their implications
to the fullest extent and, on occasion, has retreated."
She does not think the decisions alone accounted
for the cultural trend. "The Dred Scott case did not
cause the Civil War. But Dred Scott proves that we cannot
and should not ignore the social implications of the Supreme Court's
decisions."
In the area of crime and punishment, she said
that in the '60s and '70s crime was thought to be attributable
to social problems such as racism and poverty and that criminal
behavior was even posited as "a logical response to a repressive
society." Supreme Court decisions wanted society to "play
fair in a legalistic sense with lawbreakers" and so "constitutionalized"
criminal procedure. She ticked off a 20-item list of new rules
that transformed the way investigations, prosecutions and incarcerations
are handled and that turned justice into a matter of "gamesmanship
between the accused and the state.
"The cat-and-mouse nature of the criminal
justice system encourages a criminal to try to beat the odds and,
if he is caught, to disdain guilt or responsibility. The present
system inhibits the criminal from developing the contrition that
is necessary to turn him away from bad behavior," she said.
The rulings have contributed to a more "brutish society."
The court saw pornography as "being about
free speech," she said, ignoring "the ancient and consistent
antecedents of the laws they were overturning."
She drew a chuckle from the mostly male audience
when she read from the majority opinion in Stanley v. Georgia
that a man has a "right to satisfy his intellectual needs
in the privacy of his home," and asked if men are answering
"intellectual" needs when they look at pornography.
She likewise ridiculed another statement in the ruling in Ginsburg
v. New York that said parents are not barred from buying magazines
containing nudity for their children. "Who can imagine parents
purchasing obscene magazines for their children—much less
that the Supreme Court would appear to condone it?" she wondered.
Pornography exploits women and children and
"puts sex on the level of a bodily function," and is
now hardly confined to the home, she pointed out. It is pervasive
on the Internet, in movies and advertising and on television,
she said, with the result that modesty has declined and "the
rest of the world sees us as immoral.
"The explosion of pornography and the degradation
of sex move us toward a society both brutish and solitary,"
she lamented.
In a series of decisions bearing on family relations,
the court ended the legal distinctions between legitimate and
natural children with the result that the marriage has been destabilized
as an institution, and children suffer as a result. "Society
must erect legal support for the more difficult but ultimately
more fulfilling commitments of marriage. There is no proof that
a healthy society can exist or perpetuate itself without that
institution," she said.
In the area of public order she argued that
the court transmogrified free speech into free expression so that
"Shakespeare is on a par with Larry Flynt's Hustler."
She said the gist of that trend has been to prove George Orwell
was right when he said that when the quality of language is debased,
the precision of thought suffers.
She also faulted the court for a "loss
of order in schools" that she implied resulted in school
environments in which shootings now happen. "School discipline
is about the rule of the social compact," she maintained,
and one thing schools teach is respect for law. The authority
of school boards and officials was "chilled" by decisions
such as Tinker v. Des Moines Independent School District
and Goss v. Lopez, which she said gave a misplaced adult-like
autonomy to children. She said that trend has since subsided.
"By devaluing personal responsibility for
good conduct, the Court's decisions have propelled society back
toward a pre-social contract state of nature," she said.
"Only a very wealthy society can indulge such a large share
of degradation as we have done."
Although the court has retrenched on some
of its rulings, the moral foundation of self-control is necessary
to self-governance and must be fortified. "Laws can slow
the decay of morals, but they cannot restore morals," she
said. "The Constitution is not a suicide compact. Judges
should not issue decisions that are fatal to society."
• Reported by M. Marshall