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Harry Blackmun and the Pursuit of Happiness

By Robert S. Sargent Jr.
web posted March 15, 2004

Recently I had an article rejected by a literary magazine. It had been critiqued by a "reader" who gave three main reasons for the rejection. The reasons, which were factual, were completely wrong, and I could document the mistakes. I called the senior editor, who didn't return the call. Over the next week, I left several messages which weren't returned. Needless to say, it was extremely frustrating, knowing I was right, but knowing there wasn't anything I could do about it. A week later, I got an email from the editor, apologizing, and he gave me a satisfactory reason why he didn't return the calls or emails. He invited me to send him whatever documents I thought were relevant, and he would indeed give me consideration. Now, I had a completely different outlook. Whether they ever accept the article for publication is no longer a source of frustration. The fact is I'm getting the opportunity to have input in the process. I believe this "input in the process" is the key to the happiness of our society.

When one reads The Federalist Papers, it is obvious that the Framers thought a lot about what kind of government would best represent the "Pursuit of Happiness." When legislatures make policy through the democratic process, the losers, while not "happy" with the results, are at least satisfied that their input was heard. They also have the hope that a new legislator will be voted in the next time. When kings, or dictators, or committees who are not accountable to the people make policy, the losers are not only unhappy, they are completely frustrated because they know there is absolutely nothing they can do about it. Rule by committee, or tyranny, does not lead to happy societies. Enter Justice Blackmun.

Harry BlackmunHarry Blackmun's papers have now been released, so his opinions and dissents are being rehashed in the news. In his dissent of Bowers v. Hardwick (1986), which held that Georgia's sodomy laws were Constitutional, Justice Blackmun wrote, "I can only hope that the Court soon will reconsider its analysis and conclude that depriving individuals of the right to choose for themselves how to conduct their intimate relationships poses a far greater threat to the values most deeply rooted in our nation's history than tolerance of nonconformity could ever do." He got his wish when the Court overturned Bowers v. Hardwick, last year in Lawrence v. Texas, which overturned Texas' sodomy laws.

At the time of Bowers, there were 25 states with laws prohibiting sodomy. At the time of Lawrence, this had been reduced to 13, and only 4 states enforced sodomy laws only against homosexuals. Rarely were these laws ever enforced, and clearly, the states were moving towards a more tolerant attitude towards private and homosexual behavior. Justices, however, have little patience for legislatures that don't agree with their own personal sense of morals. Blackmun in Bowers, quoting Justice Holmes, wrote, "I believe that it is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past." Revolted by Georgia's laws, Blackmun "found" some rights for the defendant in the Constitution. The Lawrence Court agreed.

What does all this have to do with happiness? Now that the courts are deciding what rights we have in our bedrooms, what rights homosexuals have regarding marriage, the issue has become divisive. We have charges of intolerance, threats to amend state and Federal Constitutions, religion against secularism, and charges of hatred. As long as state legislatures decided the issue, people accepted the results peacefully. If they lost, they worked through the system to change it, and were often successful. Society was glued together through the process. When courts usurp the legislative process, society becomes unglued.

Justice Blackmun, of course, wrote the majority opinion in Roe v. Wade. He went to his grave thinking he did the right thing. At the time of Roe, 19 states had recently liberalized their laws regarding abortion. By today there would be many more. But by forcing the whole country to accept their moral view, the Roe Court has caused the polarization of the country on this issue. We have half the country feeling the same kind of frustration (to a greater degree, of course) that I felt when I felt that I had no say in the matter of my rejected article.

Blackmun is a study in the kind of arrogant judges that impose their values upon the whole country, and they never understand the harm they do to the country's "happiness."

Robert S. Sargent, Jr. is a senior writer for Enter Stage Right and can be reached at rssjr@citcom.net.

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