Unelected, Unaccountable, Politically Connected Lawyers

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The Supreme
Court's 5-4 decision in the Louisville and Seattle schools cases
exposed one of the unspoken truths of American "constitutional
law": there is no law in this area. Instead, there are only
the justices' naked political opinions.

Since 1954's
decision in Brown v. Board of Education, the Court has taken
upon itself the task of superintending school assignment policies
touching on race. Yet, as the Court had said before 1954, the Equal
Protection Clause was not intended to ban race discrimination in
school assignment — even racial segregation of schools.

In fact,
the Congress that passed the Fourteenth Amendment established segregated
schools in Washington, D.C. The justices who wrote Brown,
and thus "constitutionalized" the ban on school segregation,
recognized this fact. One of them, Justice Robert Jackson, called
Brown "new law for a new day." The author of the
Court's opinion, Chief Justice Earl Warren, said the Court could
not be bound by the intentions of people who had lived in 1868.

But if
the Court is not going to interpret the Fourteenth Amendment's Equal
Protection Clause according to the intentions of the people who
added it to the Constitution, how is it going to interpret it? This
is one of the great fault lines in modern "constitutional law."

Most conservative
judges favor holding the Equal Protection Clause to be a general
ban on race discrimination, with only limited exceptions. Thus,
Chief Justice Roberts said in this latest opinion that, "The
way to stop discrimination on the basis of race is to stop discriminating
on the basis of race."

Roberts
here is not applying an originalist interpretation of the Equal
Protection Clause, which, again, clearly was not meant to ban all
state government (including local government) race-conscious policies.
Instead, he is applying the understanding of Brown v. Board of
Education that is current in conservative circles. He is behaving,
in other words, as if Brown itself were a constitutional
amendment.

Liberal
justices, led in this case by Clinton appointee Stephen Breyer,
generally hold that Brown and its progeny committed the Court
and the country to racial integration. Ever since 1971's Swann
v. Charlotte-Mecklenburg Board of Education decision, the Court's
liberal wing has supported race discrimination aimed at fostering
integration. (Beans must be counted before they can be sorted, that
is.) The liberal wing considers discrimination of this kind, whether
in the form of busing, of racial exclusion, or of any of numerous
other race-conscious policies, "benign."

Thus, Breyer
lamented that, "To invalidate the [school-assignment] plans
under review is to threaten the promise of Brown." Not
"of the Fourteenth Amendment," but "of Brown."
Why? Because Brown had nothing to do with the Fourteenth
Amendment. Brown was an innovation, and the integrationist
current in constitutional law is traceable to that decision, not
to the Fourteenth Amendment — to the judges, not the people.

In this
latest decision, Justice Anthony Kennedy followed former Justice
Lewis Powell in holding to a middle view that would allow racial
discrimination in the name of "diversity." Powell, a product
of segregated Virginia, did not have any problem with government
race discrimination, so long as the purpose was "good."

As Kennedy
put it, "A district may consider it a compelling interest to
achieve a diverse student population. Race may be one component
of that diversity."

What legal
argument did Kennedy offer in support of this pronouncement? None.
In fairness, however, none was all he had.

In fact,
none of these three views — the conservatives' color-blind view,
the liberals' integrationist view, or the Kennedy/Powell diversity
view — makes any mention of the original understanding of the Equal
Protection Clause.

The reason
for that is simple. It is that Brown v. Board of Education
was an instance of judicial legislation, plain and simple, and none
of the three positions staked out by the current justices has any
relationship to the Equal Protection Clause's actual meaning. Brown
really was "new law for a new day," and this revision
of the Constitution was entirely the act of federal judges.

In a governmental
system in which judges did not feel free to overturn the constitutional
intentions of the people, the Equal Protection Clause would be held
to be, as Jackson and Warren conceded it was intended to be, irrelevant
to school assignment. The Fourteenth Amendment, in other words,
does not ban racial segregation, and it does not ban race-based
school assignment in the name of "diversity." It simply
does not speak to this issue.

In case
the Court made this honest proclamation, the political process would
soon yield a new amendment banning segregation of schools. That
new amendment's legislative history, its actual language, would
give the justices something to follow in considering race-conscious
school-assignment policies other than their own naked political
preferences.

Then,
instead of being subject to the moral ruminations and political
preferences of John Roberts, or Anthony Kennedy, or Stephen Breyer,
Americans would be governed by constitutional law of their own creation.
If elected officials resolved this issue, in other words, Americans
would have republican government in this area, and not arbitrary
government by unelected, unaccountable, politically connected lawyers
called Supreme Court justices.

July
17, 2007

Kevin
R. C. Gutzman, J.D., Ph.D. [send
him mail
], Associate Professor of History at Western Connecticut
State University, is the author of The
Politically Incorrect Guide to the Constitution
.

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