Op-Ed The real Rehnquist record revealed

Author: Stefan Claypool, Natalie Komrovsky, Heather Pangle, Lauren Vollmer

In the discussions surrounding the William H. Rehnquist Professorship of American History, we believe that the conservative perspective has been underrepresented. Some student organizations have distorted the Rehnquist record in order to portray the late Chief Justice as anti-women's rights and anti-gay. We wish to inform the Middlebury community that Rehnquist's rulings were based on solid legal and constitutional grounds, rather than his personal political beliefs. In fact, Rehnquist was a staunch opponent of the judicial activist agenda, and spent his career fighting to reemphasize the Supreme Court's status as a judicial rather than a political body.

Rehnquist's detractors challenge that the Chief Justice was an opponent of women's rights, ignoring both that Constitutionally grounded Court rulings are not reflective of a Justice's personal opinion and that the legal basis upon which the pro-choice argument is formed is faulty. In the case of Roe v. Wade, the Court's erroneous conclusion that the so-called right of privacy extends to cases of abortion is an example of it overstepping its bounds and legislating from the bench. Said Rehnquist in his dissent, "The 'privacy' that the Court finds here [is not] even a distant relative of the freedom from searches and seizures protected by the Fourth Amendment to the Constitution, which the Court has referred to as embodying a right to privacy." Rehnquist's adherence to the Constitution, not his personal biases, formed the basis of his dissent.

The accusations branding Rehnquist as anti-gay are similarly baseless, as a reading of his verdicts will reveal. In Bowers v. Hardwick, the court refused to rule the Georgia law against sodomy unconstitutional because it is not a fundamental right "implicit in the concept of ordered liberty." Such a right would have to be granted through a political, not a judicial process. Again, this decision reaffirms that Rehnquist did not want the court to become a political institution. Whether or not Rehnquist supported this law, this ruling was based on sound constitutional analysis.

In The Boys Scouts of America v. Dale, the question was about free speech, not gay rights. Rehnquist voted to protect the first amendment right of private organizations. The New Jersey Supreme Court ruled that the Boy Scouts had to admit Dale because of their public accommodations law. However, the Boy Scouts are not a public organization. They have a system of values that may be unpopular, but as stated in the opinion, "protection of the right to expressive association is 'especially important in preserving political and cultural diversity and in shielding dissident expression from suppression by the majority'...[f]reedom of association...plainly presupposes a freedom not to associate." To force The Boy Scouts of America to admit a member they do not want would be to infringe on their first amendment rights.

We see in Rehnquist's written opinions a refusal to misrepresent the Constitution in order to fulfill a political agenda. And from this we can see the source of the opinions that many on campus have used to deride Rehnquist and his record. Said Rehnquist himself of the matter, "A judge who is a 'strict constructionist' in constitutional matters will generally not be favorably inclined toward claims of either criminal defendants or civil rights plaintiffs - the latter two groups having been the principal beneficiaries of the Supreme Court's 'broad constructionist' reading of the Constitution." To say that Rehnquist came to his legal conclusions based on his personal biases is an insult to his integrity. The protests surrounding the Rehnquist professorship are an attempt to claim a narrow set of values for the entire Middlebury student body. As a Middlebury faculty member said, the protestors "want to establish a uniform definition" of what they consider Middlebury values. In fact, there are conservatives in the Middlebury community who share Rehnquist's views. We consider our values to be just as legitimate as those the protesters want to impose on the whole community. We consider that we and they have the right to hold different values. For the protesters to seek a confirmation of their values as the official and only permissible values of Middlebury College is intolerant and offensive.

As Sir Thomas Moore said in Robert Bolt's A Man For All Seasons, "The world must construe according to its wits; this court must construe according to the law." In accordance with this statement, we believe that the Rehnquist professorship is appropriate. It is an honor for Middlebury College to have a professorship named after such an influential and well-respected figure in American history.