Let’s start by asking ourselves some questions. What exactly have “conservatives” conserved so far? Gun rights? Well, the Supreme Court has refused to take up any meaningful cases regarding the Second Amendment since McDonald v. Chicago in 2010. What about social issues, such as homosexuality or transgenderism? Well, we failed to keep order during the Sexual Revolution in the 1960s and failed to preserve traditional marriage with Obergefell v. Hodges in 2015. Now, on June 15, 2020, it happened once again. The Supreme Court, with a supposed 5-4 conservative majority, ruled 6-3 that “sexual orientation” and “gender identity” fall under Title VII protections for employment discrimination.
There has always been a struggle between two prevailing constitutional philosophies: originalism and activism. The former interprets the Constitution based on how it was originally written while the latter varies the text’s meaning depending on prevailing social trends. One of the biggest criticisms of activism is how it blurs the lines between rulings and legislation, as was the case in Monday’s ruling. Antonin Scalia, viewed by many as a strict originalist, has said that “If you think aficionados of a living Constitution want to bring you flexibility, think again. You think the death penalty is a good idea? Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it. That’s flexibility.”
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on “race,” “color,” “religion,” “sex,” and “national origin.” Never does it mention “sexual orientation” or “gender identity,” which is exactly what Justices Samuel Alito, Clarence Thomas, and Brett Kavanaugh pointed out in their respective dissenting opinions. “There is only one word for what the Court has done today: legislation. The document that the Court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive,” Alito wrote.
What’s not surprising about Monday’s ruling isn’t the four liberal justices applying an activist mentality to the Constitution, but rather the two votes that tipped the scales coming from conservative-leaning Chief Justice John Roberts and Trump-appointed Justice Neil Gorsuch. To put it simply, these two are perfect examples of what has happened to modern American conservatism. We’ve become afraid to voice our opinions and in doing so, have appeased the left time and time again. Even President Trump, who has been constantly vilified by the media regardless of his actions, continues to appease and pander to groups that will never consider voting for him or the Republican Party.
As Pat Buchanan stated in The Death of the West, “In half a lifetime, many Americans have seen their God dethroned, their heroes defiled, their culture polluted, their values assaulted, their country invaded, and themselves demonized as extremists and bigots for holding on to beliefs Americans have held for generations.” It isn’t at all surprising what happened on Monday. If mainstream conservatives haven’t gotten the message already, pandering to the left will never benefit us on the right. If we truly want to win, then conservatism has to become more than just “fiscal responsibility, free markets, and limited government.”