It's not the Constitution.

THERE is reason to believe that high-school girls in Harlem may do better in an all-girl school. A respected educational institute has produced a promising plan for such a school, the school district favors it, and a knowledgeable philanthropist has offered to help fund it. Unfortunately, the ACLU tells us, the plan cannot be implemented, no matter how promising, because the Constitution forbids it. [See "Can Democratic Government Survive?" by Robert H. Bork, p. 46.] It's almost enough to make one wonder whether the Constitution is really a good idea.

In a democracy issues of public policy are decided by the people; in a federalist system, usually by the people most directly concerned. According to the ACLU, however, most questions of public policy have already been decided by the Constitution. This means as a practical matter that they are to be decided by judges and ultimately by the Supreme Court for the nation as a whole. The American people, we are to believe, have so tied their hands by adopting the Constitution that even an issue of local school policy cannot be decided without obtaining the approval of a federal judge.

The most important thing to know about constitutional law, the ACLU's trump card over policymaking by the people, is that it has very little to do with the Constitution. An all-male military academy, for example, did not suddenly become unconstitutional in 1996 because the Constitution was changed or something was discovered in it that had not been noticed before. It became unconstitutional only because a majority of today's Supreme Court Justices chose to make it so.

The essence of the Constitution is decentralized representative self-government. It wisely places few restrictions on self-government, and elected legislators are ordinarily little tempted or inclined to violate those few. Government by judges --totally undemocratic and totally centralized -- is the antithesis of the constitutional system. It is favored and defended by the ACLU for the simple reason that the effect of moving policymaking from the people to the Supreme Court is almost always to move policy choices to the left.

As Justice Scalia has been valiantly pointing out in recent dissenting opinions, Supreme Court Justices serve primarily as the mirror and mouthpiece of current elite opinion. The result is to substitute the demands of ideology for the practical common sense of the people closest to and most affected by the decision to be made in a particular situation.

An all-girl school in Harlem may or may not prove to be a solution to the devastating problem of low academic achievement, but its proponents may be sure that nothing in the Constitution is opposed to its being tried. Justice Ruth Bader Ginsburg and some of her colleagues may decree otherwise, but that will only further illustrate that government by electorally unaccountable, life-tenured lawyers in robes is not an improvement on the constitutional scheme.