OPINIONSrnLegal Insanityrnby William J. Quirkrn”Knowing that religion does not furnish grosser bigots than law,rnI expect little from old judges.”rn—^Thomas JeffersonrnJudicial Power andrnAmerican Characterrnby Robert F. NagelrnNew York: Oxford University Press;rn188 pp., $29.95rnAsociety governed by the judiciary—rnrather than by the will of the majorityrn—displays odd characteristics. OnrnJuly 29, 1994, a seven-year-old girl inrnHamilton Township, New Jersey, wasrnsexually assaulted and murdered. Arnneighbor who is a twice-convicted sex offenderrnhas been charged in her death. Inrnresponse to this crime, the state enactedrnlegislation requiring that a communityrnbe notified when sex offenders are releasedrninto it. In 1984, Carlos Diazrnpleaded guilty to raping a 20-year-oldrnGarfield, New Jersey, woman in Teterboro.rnTwo days after Mr. Diaz’s releasernfrom prison. Federal Judge John W. Bissellrnexempted him from “Megan’s Law.”rnThe judge found that the law could haverna “punitive impact” on Mr. Diaz. JudgernWilliam J. Quirk is coauthor, with RandallrnBridwell, of Judicial Dictatorship,rnrecently released by TransactionrnPublishers.rnBissell said he was sympathetic with thernlegislature’s intentions, but added thatrnthe Constitution “has stood for centuriesrnas a reservoir for individual rights.” Hernfound, as the New York Times reported,rnthat “the harm Mr. Diaz would facernthrough the notification provisions wasrngreater than the threat the communityrnfaced by not invoking them.”rnOn October 7,1994, a Federal DistrictrnJudge in Colorado ruled that an inmaternserving a ten-year sentence for kidnappingrnmust be allowed to perform satanicrnrituals in his cell. Satanism, the judgernruled, was protected under the FirstrnAmendment; a prison rule barring devilrnworship was unconstitutional. We oughtrnto give the devil his due, said the judge.rnMidshipman Joseph Steffan was dismissedrnfrom the Naval Academy in 1987rnafter he stated he was a homosexual, a violationrnof Defense Department regulations.rnChief Judge Abner J. Mikva of thernDistrict of Columbia Circuit Court ofrnAppeals conceded that the militaryrncould prohibit homosexual conduct, butrnfound that it is “inherently unreasonable”rnto presume that a person is morernlikely to break a rule simply because ofrnintention or desire. The military’s findingrnthat the presence of homosexualsrnharms morale and discipline was setrnaside by the court because it “dependsrnsolely upon the prejudice of third parties.”rnThe court’s opinion also rejectedrnthe military’s argument that the presencernof homosexuals invades the privacyrnof heterosexual servicemen: “The argumentrnthat homosexuals will stare is veryrnsimilar to the argument that they will engagernin homosexual acts. . . . The argumentrnthat heterosexuals will fear suchrnstaring is, in turn, a version of the argumentrnthat government should be allowedrnto give effect to the irrational fearsrnand stereotypes of third parties.”rnMost Americans would regard theserndecisions as insane. Learned Hand oncernasked who had made the judiciary “thernarbiters of all political authority in thernnation with a discretion to act or not asrnthey please?” Hand’s is a good question,rnto which Robert F. Nagel, a professor atrnthe University of Colorado School ofrnLaw, has given us a thoughtful answer.rnNagel, in his 1989 book ConstitutionalrnCultures, concludes: The “Constitutionrnhas become an ambitious political andrnTo order these books, (24hrs, 365 days)rnplease call (800) 962-6651 (Ext. 5200)rn28/CHRONICLESrnrnrn