March 7, 2006

Supreme Court defers to military again

The Supreme Court unanimously upholds a law cutting federal funds to universities that, in the name of gay rights, ban military recruiting on campus. Mean Mr. Mustard explains the general pattern:

Indeed, the military seems to be one of the last few areas of national life on which the Court has exercised real restraint in making pronouncements. I'd guess that this bespeaks something of a realization on their part that their judgments about social and political issues traditionally left to less distant and more easily checked authorities really are just as ill-considered and liable to muck up the works as critics have been saying for years.

And so it seems they're perfectly content to, say, wreck the economy by disallowing consideration of general intelligence for hiring purposes or contribute dramatically to the likelihood of racially motivated riots, murder and rape in prison by telling state officials that they're not allowed to segregate prisoners by race (and any suggestion that imprisoned racial groups will disproportionately fight amongst themselves is just ignorant prejudice on the part of these guards and administrators who, after all, only have decades of experience working in prisons). A pretty good non-legal, layman's diagnosis of the Court's biggest and most consistent flaw would probably be something like, "They stick their nose in where it doesn't belong."

However, despite all that energetic and poorly-informed meddling, the Court has been unusually conscientious about not making similarly ideological and unrealistic diktats with regards to the military, an organization that, for instance, relies heavily on IQ-like tests to accept or reject enlistees and to classify them for occupations. Why is this?

It seems to me that they're aware of the fact that it's the military's long tradition of having to deal with the ugliest and uncomfortable realities of life that protects and sustains the ability to hold on to the social and intellectual niceties and fictions that top-tier law academics and Supreme Court jutices believe (because, darn it, it would just be so nice if they were true).

Fictions such as: men and women are the same; all groups of people have the same average predilections and capabilities as any other; IQ and the tests used to measure it are meaningless. All of these statements are taken as a matter of course in the classroom at any top law school. All of them are also demonstrably wrong. The Supreme Court has set policy and precedent based on the truth of these statements throughout American life, but not in the military.

America, not least through its military power, has created something of a nice cushion for itself from the brutal realities of the outside world that would so quickly shatter those shibboleths mentioned above. It gives us the ability to banish from our minds (or at least from most public and much of private discourse) the certain unpleasant facts with which Nature, that hideous bitch goddess, has left us.

A reader adds:

I believe that the basic principal at work is the famous phrase of Justice Robert Jackson. “The Constitution is not a suicide pact.” Without the military to defend the Constitution it is a worthless scrap of paper...

The US Army by its very nature cannot operate within the constitution and the bill of rights. Base commanders have powers over speech that no civilian authority would dare exercise. I experienced this first hand as a junior officer. I watched the military police rip political bumpers stickers off soldiers’ vehicles at the order of the commander. These were civilian cars owned by soldiers and parked on the base. They were mostly enlisted men. Most officers would not have dared. Keeping active duty soldiers out of politics has been a long standing Army practice with reasons too obvious to mention. A couple of local ACLU lawyers tried to put up a fuss but no judge would support them.

By the way, a similar but somewhat weaker attitude exists toward civil police powers. The famous or infamous Miranda ruling created a false impression. A careful study shows that even the Warren court tended to defer to the police. For a while in the 1970’s and 1980’s the lower courts forgot this principal, but the rising crime rate brought most of them back to reality. Even judges have children and like to walk the streets safely.

My published articles are archived at -- Steve Sailer

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