Not a Popularity Contest

Star- Telegram
Posted Thursday, June 17, 2004

As elected officials attempt to move up the ranks, the most appealing candidates are those who can bring honorable experience in a variety of roles to new positions.

Before John Cornyn ran for the U.S. Senate in 2002, he had spent seven years as a Texas Supreme Court justice and three as the state's attorney general. Having served in two branches, he could offer important perspective to the third as a lawmaker in Congress.
But, sitting in his senator's seat, Cornyn seems to have put aside what he knew as a judge -- that fundamental principles of constitutional law don't rest on popularity contests.

There he was, chairing a hearing designed to convince the populace that American society is so hostile to the mention of God in the public square that Congress must avenge the deity.

There he was, advocating a constitutional amendment against burning the U.S. flag, as though that cherished symbol's continuing integrity depends on rewriting the Bill of Rights for the first time since it was added to the Constitution in 1791.
Worst of all, there he was, writing in a newspaper column that the Supreme Court should hold the phrase "under God" in the Pledge of Allegiance constitutional because … well, after all, "the vast majority of Americans believe that the pledge is constitutional and reject the views of the 9th [U.S.] Circuit Court [of Appeals]," which said the reference to God violated the First Amendment.

By that reasoning, George Wallace, Orval Faubus and other Southern governors could have stood in schoolhouse doors with impunity and rejected federal court rulings of the 1950s and '60s ordering them to allow black children into all-white schools.
Texas officials who wanted to continue affirmative action policies could have rejected a 1996 5th Circuit ruling that said the University of Texas at Austin (and, by extension, other state schools) couldn't consider race in admissions decisions to enroll a diverse student body.

Surely Sen. Cornyn, the former judge, understands that the Constitution's foundations don't depend on the latest opinion polls or prevailing sentiments.

"The hard fact is that sometimes we must make decisions we do not like," Justice Anthony Kennedy wrote in a concurrence in Texas vs. Johnson, the 1989 ruling that upheld free speech protections for flag-burning as political expression. "We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result."

When the Supreme Court overturned the 9th Circuit on Monday, the justices did so not based on popular beliefs but on legal rules about who can pursue federal lawsuits.
What's distressing about Cornyn's advocacy is his seeming willingness to sacrifice constitutional principles. Is that what being a senator requires?

In a government of democratically elected representatives, the people do have a say. But the Constitution provides a basic and essential framework for the exercise of that power. Those who support the flag desecration amendment or retaining "under God" in the pledge have every right to defend their position -- the First Amendment not only protects the clash of ideas but encourages it.

But they don't honor the flag by encouraging a distortion of the Constitution.

They don't honor the First Amendment by promoting mobocracy.

They don't honor the rule of law by suggesting that fundamental constitutional protections should shift with the prevailing popular wind.