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are certain to arise. But how horrible it will be for the person who causes someone to lose his faith! |
I have a vague recollection that my ninth grade history teacher, trying to making American government as painlessly simple as possible, said something to the effect that in a democratic country in which the majority rules through elections, the Supreme Court is there to protect the minority against the majority. Now that was not exactly right, but it has remained my gut feeling about our Supreme Court. When the laws enacted through the representatives of the majority interfere with the equality and freedom our Constitution purportedly promises those in the electoral minority, then the courts have a duty to act.
In the recent Vice Presidential debate when asked whether a Romney administration would seek to eliminate a woman's choice to have an abortion, Ryan answered that "we don't think that unelected judges should make this decision. People, through their elected representatives and reaching a consensus in society through the democratic process, should make this determination." In other words, judges should not intervene so readily to overturn laws and promote freedoms-- to do so would create what the political right has condemned as judicial activism. It is through its laws that society is shaped.
If, as is unfortunately seeming more and more likely, the Romney ticket wins, there will be a groundswell of public opinion that will emerge as a bevy of more state laws to restrict or outlaw a woman's right to choose an abortion. If so, there may not be a sufficient number of activist justices to declare the laws unconstitutional. The reason why justices who intercede to preserve individual rights are deemed activists is that to limit oneself to a strict interpretation of the Constitution is ipso facto to begin from a discriminatory stance from which is is very difficult to argue out. The majority of ideological conservative justices on the U.S. Supreme Court will be prone to rendering decisions that restrict human freedom in favor of laws that reflect the majority sentiments, i.e. they will not advance judicial activism and they will keep all crazy opinions to themselves. No doubt Ryan would prefer if there were no Supreme Court involvement at all. The good news for conservatives is that judicial activism is the exception to the rule that justices should not travel too far from the prevailing world view of white males in determining the constitutionality of laws written and passed by a majority of white males in which they seek to protect the rights of white males-- the same select group by whom and for whom the U.S. Constitution was written. Even with the number of minorities and women who have gained access to the political system, it will take more than that to alter entrenched social mores and prevent the codification of these into laws.
The challenge in arguing from constitutionality was always the antithesis between the language of the document evocative of universal human freedom and equality and the reality of the framer's intent who either owned slaves or did nothing to encourage or demand their emancipation unlike England from whose fetters they declared their own freedom. Take as example the 1857 case of Dred Scott v. Sanford in which the plaintiff, a slave, declared his emancipation the moment he was taken by his master to a free state. In a 7 to 2 ruling, the Supreme Court denied his claim in words that seem better suited to a propaganda piece for white supremacy that from the hallowed chambers of the U.S. Supreme Court. Here are some of the more shocking bits from Taney's majority opinion
We think they [people of African ancestry] are not [citizens], and that they are not included, and were not intended to be included, under the word "citizens" in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.
. . . [T]he legislation and histories of the times, and the language used in the Declaration of Independence, show, that neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument.
It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased...to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.
African slaves were not among those for whom the Constitution was written-- state laws were upheld because to say otherwise would be to recognize non-white ethnicities as human. At the very least, we have to say that not only was Taney highly eloquent in his endorsement of racism, but he was right-- judged by the actions of the founding fathers, the Constitution could not have granted any degree of humanity to Africans. He forcefully illustrated his point by imagining a county in which blacks could go unmolested in public, speak in public, and enjoy the same level of public protection as the true white recipients of the Constitution's benefits. What kind of horror movie would that be? In fact, the only way Dred Scott would have won his case is through judicial activism, a total disregard for the Constitution.
When the question of states rights was nullified by Lincoln's Emancipation Proclamation and after a civil war had to be fought in order to confirm this Proclamation, the old Confederacy simply turned to it's rights to ratify new racist laws believing as Ryan does today that unelected judges should not make this decision...[but that] people, through their elected representatives and reaching a consensus in society through the democratic process, should make this determination." This determination at that time was to quarantine all African Americans through the specious argument of "separate but equal." When Plessy appealed to the Supreme Court, the majority of justices upheld the racist laws that codified the discriminatory custom of prohibiting any "commingling" of ethnicities that would infect the white race. So the response to having their property taken away from them and declared human was to find more creative ways to legalize discrimination. The justices claimed that laws per se have no social ramifications, but they affirmed a racist law that codified social norms. Once again in avoiding judicial activism and allowing the laws created by majorities to stand, they reinforced the kind of racism that was an integral part of the founders' nation-building documents.
When Warren in 1954 overturned the separate but equal argument as set forth in Plessy, he did so with what one might depict as reckless disregard of judicial precedent, i.e. he was one of those activist judges Paul Ryan et al. despise so much. This was one of those singular moments in American History in which someone stands as the exception not the rule, audaciously choosing not to take the wide and well worn path set before him or her in order to protect the unprotected. It only took 178 years! Now at last Americans were compelled by law to begin the hard work of repairing and rebuilding the nation into a more just and equal one.
When colleges, however, began to implement procedures designed to increase the number of black students in colleges and universities, they were confronted with students whose history had given them anything but desirable educational opportunities. In order to accept one black student, one "deserving" white student would be rejected. And so The Civil Rights Act of 1964-- legislation that was miraculously promoted by Lyndon Johnson one whose personal history was stamped with the mark of ancestral racism, a step toward a lofty ideal, the creation of a Great Society-- was prostituted by whites for their own ends, who as a race had never been characterized or treated by law as property. Thus we heard whites actually claim that they were the victims of discrimination. Specifically, when Bakke claimed discrimination under Title VI of the Voting Rights Act of 1964 and the 14th Amendment because he did not gain admission to a medical school that had shown preferential treatment to minorities, the Supreme Court agreed. Just think of this evolution-- the language of the Constitution that contained no hint of inherent human freedom to Africans and flatly rejected as a basis for claiming any such such freedom was now being used by whites, the only group for whom freedom was actually granted, to claim that by showing any preference to blacks, their own freedom as whites was being undermined. Only in America!
In the real world of college admissions at that time, there was no equality. If, for example, Mr. Bakke had attempted to gain admittance into another medical school, he would have had little trouble. There is little doubt that the black student would never find another medical school except one that also implemented a similar program of affirmative action. No undue burden would be placed on the white students rejected. Where the educational stakes are all in their favor, a plurality of colleges would be happy to admit more white students. Compare this to the possibility of a black applicant's only choice, and any philosophical discussion should be a no brainer. The bottom line is that if Bakke was not admitted because his spot was taken by a black individual, he would still be a doctor today, but we will never know the black individuals who lost out for every white admitted.
While the 2003 Grunder case did uphold the compelling interest of a university to achieve diversity as an educational element, 4 of 9 Justice dissented-- three of whom are current members of the court (Justice Scalia, Justice Kennedy, and Justice Thomas). These three at the time determined that "the Law School has managed its admissions program, not to achieve a “critical mass,” but to extend offers of admission to members of selected minority groups in proportion to their statistical representation in the applicant pool. But this is precisely the type of racial balancing that the Court itself calls “patently unconstitutional.” Sandra Day O'Conner in writing the majority opinion, however, affirmed that to achieve racial diversity is a compelling enough interest in the educational duty of institution of higher learning. Her argument was tenuous, and I suspect she was doing the unthinkable: she was being a pesky activist. Why? Because she knew what was right!
And now enter Miss Fisher whose claim to racial discrimination from the University of Texas was upheld by a lower court. The University is now trying to win a case it has as much of a chance winning as a black girl the Miss Arizona pageant. Miss Fisher has graduated from college. I wonder whether or not she would now regret her decision and still mumble cliches about hoping that this makes a level playing field for all who come after her, if in her four years she would have taken a U.S. History course that actually taught the truth about U.S. History. Is she really proud of what she is dong? Does she really understand the destruction she is causing. If she does, she is just another one of the many racists in a country that may forever be a racist one.
In a recent NY Times article, blame was laid at the feet of the attorneys for the University who are arguing on racial grounds alone. The author suggests that using an argument based on socio-economics and now race would allow many blacks to enter universities because they are poor, and justices would be more inclined to accept this argument. First, isn't it terrible that in order for universities to increase the number of black students, they should be forced to these sneak tactics. "We can't get you in as a black individual (that would be unfair to whites), but if you call yourself poor, we can get most of you in!" Maybe the ends justify the means, but the truth is that the poorest of the poor white student was never enslaved in America because of his or her race, or was actively declared not good enough for white society even after he or she was emancipated. Only blacks can claim this travesty. That should be the de facto argument from which all others flow. The deleterious effects on American society, particularly in the South, of legally, socially, and religiously endorsed slavery cannot be overcome without time, hard work, and a certain degree of white discomfort.
And now as the court is ready to reject any preferential treatment of minorities in higher education, should anyone really be surprised? After all, this is a country that never dreamed that Africans would ever be a free, equal,and participating member of American society. The Supreme Court is set to re-establish what most of us already knew-- that America is now and will always be a white nation who will accept blacks and other people of color only in small doses. White earlier justices at least promulgated their racism without dissimulation, shortly the current Supreme Court justices will eliminate affirmative action not to preserve racism in this country but in the name of freedom and equality for all exactly as the Constitution never intended.
As the public schools in which a majority of African American students are forced to attend continue to provide lackluster education and offer minimal educational opportunities, a lack of colleges and universities that maintain an affirmative action mission will devastate an already unequal system. Justice Brennan in writing for the majority in Brown v. Board of Education declared education to be the sine qua non of human development. It will now in 2013 be returned as a monopoly for those applicants who have had a more rewarding, challenging, and more expensive education. By refusing to allow young black men and women from realizing this crucial aspect of their humanity, this country finds itself in a familiar historical position-- the devaluation of the African in America. And we will have stepped backward once again, while groups of conservatives will congratulate themselves as upholders of the law and of the values that made this nation the greatest on earth and so on and so forth...
A sadder reality is that if the granting of so-called preferential treatment to African Americans who apply to colleges involved the kind of gargantuan profits that college football and basket ball elicit, a way would be found to justify, elevate, and laud the process. The fact is that thousands of African American high school students who are incredible athletes are being admitted into colleges and universities with scholarships without any concern over their educational past or their educational future. Easy courses with ridiculous majors are created and even then GPAs are fudged, all so that in putting a winning product on the courts and fields, the money comes pouring in. Less than one percent
make it to the professional level where they make millions so that owners may make every more; the majority, however, 80 percent, never graduate, and those who do are often left with having spent four years in the halls of education without ever having been shown its tremendous life altering power. There is no groundswell of litigation citing the number of football or basketball scholarships granted African American student-athletes as a peculiar source of reverse discrimination. To come away from such experiences without a true education is just another failure on the part of a country that is directed by profits and the freedom to use anyone and anything in order to make more money.
On October 8, 2012, George Whitmore passed away, another black American nobody, victimized and forgotten as all bad history is. He was a young black man who after being coerced by white police detectives into confession for crimes against white that he did not commit, found himself in and out of the criminal justice system until the last of the illegal charges was dropped. His entire life was overturned from the age of 19. The only good that came of his victimization was a Supreme Court ruling that rights have to be read including the right to remain silent. Just think, it was only after extreme examples of police brutality and a discriminatory criminal justice system that police were forced to do something as simple as telling an individual his or her rights. That speaks volumes for what blind trust anyone of us should have in legislation. We need the courts, especially their so-called "activism;" but we need them to think in a way that puts human freedom and rights first, having at least a clue to the reality of the society in which many of these litigants live, those well outside the comfort and sterility of their chambers.
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