Pro: Rehnquist's court renewed civic virtues

By John O. McGinnis Sunday, June 22, 2003
    • The ultimate measure of any Chief Justice's service is fidelity to the Constitution. By that standard, Rehnquist has earned very high marks. During his tenure as chief, Rehnquist has led the Supreme Court toward restoring the Founders' vision. The Constitution protects society from excessive political power emanating from the Capitol, but for the previous 60 years, the court had often ignored this blueprint, promoting centralization of power at the expense of a decentralized civic order emanating from the states. Rehnquist reversed that trend.

    His court also helped revive civil society by permitting religious values to compete equally with secular ones. The First Amendment's Establishment Clause was designed not to put religion at a disadvantage, as the court had recently interpreted it, but merely to prevent government from promoting religion. Prohibiting aid to religious schools forces parents to pay once for the public school that does not reflect their values and once for a school that does. But last term Rehnquist correctly held that parents should be able to choose between using a voucher at a religious and at a secular school. This decision does more in a practical way for religious freedom than the court has ever done before.

    The Rehnquist court has also restored power to citizens by protecting the right of civic organizations to express themselves. The court upheld the Boy Scouts' right to exclude homosexual leaders whose presence would dilute the Scout message that homosexuality was immoral. We should see this not as an attack on homosexuals but as a vindication of First Amendment rights of organizations to form a message through their associations. The Scout message may be flat wrong, but it should lose through societal debate, not government fiat.

    Because of William Rehnquist, the court has largely regarded the Constitution as law rather than as a mirror of the Justices' own desires. Supreme Court Justices are our servants when they are servants of the law, because we the people have made the law, not least the Constitution.

    McGinnis is a constitutional-law professor at Northwestern University