THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Friday, July 12, 1996 TAG: 9607120004
SECTION: FRONT PAGE: A18 EDITION: FINAL
TYPE: Opinion
SOURCE: By CHARLES V. McPHILLIPS
LENGTH: 83 lines
In 1868, when the 14th Amendment was ratified, the all-male Virginia Military Institute had been operating for nearly 30 years. One hundred and twenty-eight years later, the editors of this paper have applauded the Supreme Court's use of the ``equal protection'' clause in that same Amendment to destroy a tradition that no one thought was endangered at the time of ratification.
Proponents of the 14th Amendment, which had been enacted to protect the freed slaves from discrimination on the basis of race, never contemplated (much less stated) that this post-Civil War measure would terminate the right of state legislatures to maintain single-sex institutions such as VMI.
Indeed, the framers of the 14th Amendment never sought to attack any legal distinctions historically drawn between the sexes, whether in the admission policies of VMI, the personnel policies of the military or the disparate voting rights of men and women.
Only in the 1970s did the courts, now populated with thoroughly politicized judges, first ``reinterpret'' the 14th Amendment to strike down democratically enacted laws distinguishing between the sexes. Exhorted by a leftist professoriate dominant in the leading law schools, life-time appointed judges began to weave their modern theories of gender fungibility into the more-manipulable provisions of this amendment, regardless of whatever the framers and ratifiers of the 14th Amendment actually intended their language to mean.
Legal high priests decided to amend the Constitution by judicial fiat, eliminate the vote of the booboisie and wilfully enforce our progressive vision of a homogenous, genderless social order, under penalty of contempt for those who resist.
Of course, opponents of VMI's all-male admissions policy never needed to do anything as difficult as amending the Constitution. All they had to do, yet failed to do, was elect representatives to the Virginia General Assembly who shared their belief.
Our elected delegates and state senators have always possessed the power to eliminate the educational diversity offered by single-sex public education. The legislature could have banned it at VMI by passing a law to that effect or, alternatively, by withholding funds from VMI.
When litigation replaces legislation as the means for enacting social policy, the rights of a free people in a democratic republic are irremediably reduced; their franchise is transferred to an unelected and unaccountable caste: lawyers cum judges.
In this consequence lies a grievous constitutional violation committed by the VMI court. By mandating that the commonwealth of Virginia obey the social theories of Ruth Bader Ginsburg rather than the preferences of Virginia voters, the Supreme Court has flouted Article IV, Section 4 of the Constitution, which provides that ``the United States shall guarantee to every State in the Union a Republican Form of Government.''
Justice Ginsburg considers VMI an outmoded institution based on sexual stereotypes. VMI points to an impressive collection of recent scholarship supporting the utility of single-sex education as well as 157 years of evidence that its unique system achieves desirable results. In a democratic republic, as guaranteed to Virginians by the Constitution, this dispute should be resolved by elected representatives, not by a committee of black-robed theocrats. Other than cite a few of its own (incorrect) decisions over the past 20 years, the Supreme Court invokes no authority whatsoever under the Constitution as written and ratified in order to deprive the people of Virginia of the self-governing power to determine whether they will maintain single-sex colleges and universities. It is axiomatic that the Supreme Court, as a branch of the federal government, cannot exceed the powers affirmatively delegated to it in the Constitution. This principle is enshrined in the 10th Amendment, a part of the Bill of Rights, which declares that ``the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.''
There is nothing in the Constitution delegating to the federal government the power to demolish all-male programs such as VMI's, nor anything depriving Virginia of the power to maintain VMI's all-male program, yet The Virginian-Pilot's editorialists embrace the court's extraconstitutional seizure of power to accomplish a political objective they share. For a newspaper that purports to revere the Bill of Rights, this end-justifies-the-means philosophy is quite disappointing - and ultimately dangerous should such a philosophy prevail when unpopular uses of the 1st Amendment rather than the 10th Amendment are before a politicized court.
Your editorial of June 30, slavishly endorsing the unprincipled use of judicial power to achieve a political end as embodied in the VMI decision, betrayed a monkish ignorance of constitutional law and a remarkable contempt for democratic self-government. MEMO: Charles McPhillips, a resident of Virginia Beach, is an attorney. by CNB