Law and Sausages


Washington. -- Astounding news from two courts handling similar cases: The First Amendment is unconstitutional. Indeed, the Constitution itself is constitutionally suspect.

Some very advanced thinkers on Colorado's supreme court and on a U.S. district court in Ohio have excavated from the Constitution a constitutional right to overturn limits the people place on the policies that legislative bodies can legislate. It turns out there is a remarkable right of political participation, a right that prevents the people from participating in politics by restricting the freedom of politicians. Confused? Not as much as these judges.

In 1991 and 1992 Cincinnati's city council enacted ordinances prohibiting discrimination on the basis of sexual orientation in employment, housing and public accommodations. In a 1993 ballot initiative Cincinnati voters voided those ordinances by amending the city charter to prohibit the council from making sexual orientation the basis of any individual's claim for "preferential treatment." In 1994 a U.S. district court overturned the voters action on the grounds, among others, that it violated the First and 14th Amendment rights of an "independently identifiable group" to participate equally in the political process and to exercise free speech, free association and to petition the government for redress of grievances.

In 1992, after several Colorado cities enacted ordinances forbidding discrimination against homosexuals in employment, housing and public accommodations, Colorado voters ratified a constitutional amendment prohibiting municipalities from enacting such government interferences with the private choices employers, landlords and others.

In October 1994, the state supreme court ruled that this amendment violated the U.S. Constitution's guarantee of equal protection of the laws because it prevented homosexuals from participating equally in politics.

The judge in the first case said that what the people of Cincinnati did is impermissible because it deprives the city council -- the people's representatives; the people's employees -- of the right to overrule the people on a particular policy question. That is, when the people place limits on the freedom of a legislative body, they violate the political participation rights of those groups that favor things the legislative body is not permitted to do.

Colorado's supreme court similarly manufactured from the equal-protection clause a new fundamental right that is a scythe with amazing power to cut things down. It is the right of any "independently identifiable class of persons" not to have an issue that it favors removed -- "fenced out" is how Colorado's court put it -- from the political process by state constitutional law. So it is unconstitutional to enact constitutional amendments that discourage the political participation of groups that favor legislation that, because of the amendments, would be unconstitutional.

The ruling is being reviewed by the U.S. Supreme Court, which surely will note that the purpose of the Bill of Rights is to frustrate certain political preferences by placing them beyond the reach of normal political processes, outside the boundaries of legislative choice. For example, the First Amendment, which begins with those five lovely words "Congress shall make no law," sternly discourages "independently identifiable" classes of persons who want to abridge free speech or establish religion.

By the Colorado and Ohio courts' reasoning, the Fifth Amendment is unconstitutional because it discourages the political participation of people whose agenda includes taking property for public use without just compensation.

Liberals who are pleased by these two courts' reasoning regarding homosexuals should be ready to live with this logic: The Supreme Court's assertion of a constitutional privacy right to abortion is an unconstitutional burden on the political participation rights of "independently identifiable" anti-abortion groups.

Furthermore, any referendum that supersedes a legislative body and imposes restraints on smokers or gun owners unconstitutionally "disadvantages" those "independently identifiable" groups that are "fenced out" of participation in the lobbying of the legislative body.

The brief on behalf of Cincinnati's voters challenging the district court's ruling says, "In a system founded on the notion that the people are the source of all government authority, with the power to grant and delimit the authority of their representatives, it stands the system on its head to say that the Constitution requires that the representatives retain the right to control their constituents." But that is the astounding conclusion of two courts currently pushing the envelope of judicial activism.

George F. Will is a syndicated columnist.

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