Ratcheting Things Up Again

In the Age of Obama, what was once unimaginable in our politics and law has gradually become “normal,” so woven into our daily lives now that it may hardly be noticed. Last September, as I’ve noted in this space, 177 Democrats in the House voted against the bill to punish “surgeons” who kill babies who survive abortion. Even Catholics such as Megyn Kelly and Bret Baier, notable figures in the media, do not think the matter is worth mentioning when they question Hillary Clinton, Donald Trump, or other candidates.

And in case you haven’t paid attention to the news over the last few weeks, there has been yet another turn in making the bizarre not only plausible, but compulsory in our laws. A panel of the Fourth Federal Circuit overrode the judgment of a school board in Virginia insisting that children shall use the bathrooms in their schools designated for males and female, by their biological sex.

Judge Henry Floyd, an Obama appointee, was willing to credit the notion that the Civil Rights Act, barring discriminations based on “sex,” could be read now to encompass discriminations based on “gender.” That is, the law could now be set against the refusal to honor any youngster’s view of his or her sexual “identity,” quite apart from their defining anatomical features, rather hard to ignore.

Title IX of the Education Amendments of 1972 made it clear that by discriminations on the basis of sex, the law would not punish educational institutions for “maintaining separate living facilities” or “separate housing on the basis of sex.” The meaning of sex was quite evidently taken as “men and women,” boys and girls, and it would be the most implausible move on the part of the Administration to promulgate as a law an order so detached from the statutes and common sense.

Judge Floyd was willing to impose that reading of the law on the basis merely of an opinion written in the Civil Rights Division of the Department of Education. And yet around the same time, the Attorney General of the United States, Loretta Lynch, was willing to accuse the legislature of North Carolina of violating the Civil Rights Act with the same reading of the statute.

The legislature had acted to override the policy adopted in Charlotte of mandating the right of the “transgendered” to use any bathroom of their own choosing, regardless of the sentiments or feelings of everyone else. The Attorney General also accompanied her finding of wrongdoing with a threat to withdraw from North Carolina the federal moneys that flow to the schools of the state at all levels.


I would put aside for today that question of what is so implausible in the fantasy of the “transgendered.” Dr. Paul McHugh, at the Medical School at Johns Hopkins, put an end to the surgeries performed to alter the sexual organs of people. In the studies he recounts, there is a sad train of depression, along with a desire to “change back” when it became clear that the surgery could not alter the deep facts of nature in the way we are constituted. These confused young people are in need of deep counseling, not surgery.

My focus right now, though, is different. What we see on display in this case, first, is the Left emancipated from any respect for the standing of “nature” and moral restraints on the matter of sexuality.

We see also the willingness to engage the powers of the administrative State, detached from any plausible connection to the statutes that alone furnish the ground of authority for administrative orders.

And we see a willingness to extend the powers of the federal government in such a way as to make a nullity of the barriers and restraints of federalism.

Between 2001 and 2011, the federal funding for schools in North Carolina grew by just short of $400 million. When I was a youngster, in the days of Eisenhower, there was a serious question about federal aid to education. As those grants have been extended, here and in other domains, we’ve seen the heightened power of the federal government to strong-arm the States, and impose now even a perverse policy.

I have written in this space already in registering my discomfort, shared by many, over the choice between Clinton and Trump, and I’ve come down on the side, so far, of preferring the Wild Card over the Brutal Sure Thing. I have friends, however, who have argued that it is better to wait four years, let Hillary Clinton appoint the successor to Scalia, and just absorb the damage to be done, rather than take the risk of letting Donald Trump remake the conservative party.

But I’m afraid that my friends are too blithe here. They gravely underestimate the depth of the damage to be done as an Administration of the Left fills the lower federal courts with judges such as Judge Floyd. Those judges will be altogether too ready to sustain the theories of the academic left on sexuality, and the extension of the executive power well beyond the constraints of the Constitution.

What is gravely underestimated here is that these novelties and corruptions, continued over four to eight more years, may become so entrenched that they will become nearly impossible to uproot. The time is coming for prudent men and women to bite their lips and do what must be done.

Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College and the Founder/Director of the James Wilson Institute on Natural Rights & the American Founding. He is the author of Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law. Volume II of his audio lectures from The Modern Scholar, First Principles and Natural Law is available for download. His new book is Mere Natural Law: Originalism and the Anchoring Truths of the Constitution.