DIGG THIS

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

The Best of Kevin R. C. Gutzman