The Supreme Court—The Founders’ Biggest Mistake

 

Elizabeth Wright

      Elizabeth Wright is the editor of Issues & Views, a newsletter published in New York City. This article is reprinted from Issues & Views.

      With this latest Supreme Court decision on affirmative action at the University of Michigan, can we all now stop pretending that we’re living under the rule of that founding document called the Constitution? And have we gotten over the fantasy that the Supreme Court’s job is to interpret it? Actually, that wasn’t to be the Court’s job at all. That body wasn’t set up to interpret anything. And it’s this knowledge that makes matters all the more infuriating.

      How did it come about that we in this country wait in collective anxiety for some particular policy to be granted the breath of life or the kiss of death by that gang of nine? Where was it ruled that policies should be put on hold and laws held in abeyance, until Word comes down from Olympus and we learn how that crew has ruled on some particular case or practice? Who are these people?

      Yes, I know, Poly Sci 101, Marbury vs. Madison, explains it all. But, doesn’t the fact that this crew’s predecessors usurped power unto themselves—power that was never granted by the Constitution—make you want to blow a gasket all the more?

      You must admit, there’s not much guile going on here. Although fiction has it that the members of this branch of government are the final interpreters of the Constitution, they make little pretence that interpretation is what they’re doing. In this latest decision, for example, there’s exactly one direct reference to an Article in the Constitution. And if you peruse other decisions, you will see very few references to Articles and Sections and clauses and sub-clauses, that might appear to be validating or invalidating a given argument based on the Constitution itself.

      What we get, instead, are the usual references to precedent law cases, none of whose reasoning is related to the Constitution any more than is this case. And on it goes, one tissue of lies building upon earlier tissues of lies, and none of them with direct bonds to the Constitution. Of course, nothing should come as a surprise after the 1954 Brown vs. Board of Education decision, where grownup men based their reasoning for a Supreme Court decision on some psychobabbler’s interpretations of children’s play with dolls.

      The word “constitutional” is bandied about throughout the decisions of these Justices, and also something they refer to as the “spirit” of the Constitution. What exactly is “spirit” but a nebulous, subjective, even personal contrivance? We can assume that their other favorite pet phrase—a “compelling government interest”—is whatever the social engineers in the Court decide it is. One would think that We, the People, as the government, would get a chance to determine the state’s compelling interests—through Referenda and Propositions, perhaps?

      In reading the fuzzy verbiage, often full of platitudes, used to justify the Court’s decision to come down in favor of continued biased affirmative action policies, one can almost hear these Justices gloating,

We, Sandra and John Paul and David and Stephen and Ruth, prefer to believe this stuff, so we’re going to help to make it the law of the land.

      Their reasoning is based fundamentally on the earlier Powell Supreme Court decision that brought on the expansion of the “diversity” doctrine, which promotes the glorification of separate race/ethnic/gender identities, and has resulted in a corrosive brand of identity politics.

      In an early 1990s edition of Issues & Views, I wrote about the increasing numbers of charlatans who, by labeling themselves as various kinds of “Diversity Consultants,” were cashing in on the diversity racket. These were people who conducted so-called sensitivity sessions, where students or company employees were forced to attend some of the most blatant and often demeaning multicultural indoctrination.

      A most egregious example was a 1991 Florida conference for college personnel on “Advancement of Student Diversity,” where participants were encouraged to come away from the three-day event thinking of people, not as individuals to be reckoned with as such, but only as members of their ethnic backgrounds. According to the diversity creed, each person you meet has to be “handled” or related to in a specific manner, depending on the particular group to which he belongs.

      The conference’s promotion literature promised participants that after attending the workshops, they would have a “network of diverse friends,” who could be telephoned in the future if they ran into a “diversity” snag. Let’s say, if you’re attempting to iron out some difficulty involving a student who happens to be of Chinese ancestry, you could call one of the Chinese-American participants who you met at the conference and ask, ‘‘Hey, am I understanding your people right?” (This is a verbatim quote!)

      These multicultural fanatics have so profoundly tied all human actions and thoughts to ethnicity that, according to them, to engage in just the simplest human interaction with a member of another group requires specialized expertise and skill. And this skill can be acquired by attending “sensitivity training” sessions run by whom else but “diversity experts.” Instead of helping to bring an end to this type of chicanery and downright foolishness, our illustrious Supreme Court has just helped to foster more of it. Might this be what O’Connor and her cohorts mean in this decision by “promoting cross-racial understanding?”

      With this latest court decision, we can prepare for a long season of galloping diversity, as greater numbers of immigrants are drawn into the multicult game, as well as increasing numbers of pandering whites, who will seek ways to position themselves in order to further exploit the ethnic cause. From the majority opinion, it is clear that the Justices bought everything the University of Michigan lawyers sold—right down to citing the sacred contents of the multiculturalists’ discredited books on the “benefits” of diversity.

      At one point, the Opinion cites Powell in Bakke, writing,

Ten or twenty black students could not begin to bring to their classmates and to each other the variety of points of view, backgrounds and experiences of blacks in the United States.

So how many blacks will it take? And what happens to that black student who brings his own individual perspective, carved from his own evolution as an individual, and not from someone’s notion of an “African-American background and experience?” Talk about stereotyping!

      And, as if law school is not a rigorous enough academic ordeal, we learn from the Opinion that the social engineers at the University of Michigan require applicants “to highlight their own potential diversity contributions” and describe ways in which they “will contribute to the life and diversity of the Law School.” Those students who just want a law degree and don’t give a rat’s you-know-what about contributing to “diversity” are thereby put on notice.

      Let’s now return to the initial question of why this branch of government has been accorded the prestige it now enjoys as Final Authority. No one tells the story better of what the Founders had in mind, and what went wrong, than William Quirk and R. Randall Bridwell, in their remarkable book, Judicial Dictatorship. It is published by Transaction Publishers (New Brunswick, NJ) and couldn’t be more timely. Here are some gems of wisdom from the book’s Prologue:

The Supreme Court claims the ultimate say in the American legal system through the doctrine of judicial review, which allows the Court to invalidate any state or federal law it considers inconsistent with the Constitution. Jefferson believes judicial review to be a very dangerous assumption of power by the Court which “would place us under the despotism of an oligarchy.” To Jefferson, rule by a Supreme Court is no better than rule by an English king. Maybe worse, since nobody suggests the Court rules by divine guidance . . .

Supporters of judicial review believe one branch, as a practical matter, has to have the last word and that the judiciary is the most suitable one. Finality, they say, is necessary to the system. Jefferson, however, did not see it that way. He said that the sovereignty of the country, after the Revolution, passed from the king to the people. The people, by the Constitution, delegated power to three separate and independent branches. No branch is given power to control the actions of the others. The holder of a delegated power, Jefferson said, before he can act, must determine if the action is within the scope of his power. Each branch, therefore, has an equal power and obligation to interpret the Constitution on matters that come before it.

      The authors write that, for many years, judicial review managed to coexist with majority rule, because of judicial self-restraint. However, for the past 30 years the Supreme Court has used judicial review without restraint, in order to impose basic social and economic policies on an unwilling majority. In other words, they have been socially engineering our lives. Today, the Court, not the people, is the agent of change in American society.

What explains the country’s long acquiescence in such an antidemocratic doctrine as judicial review? Or, more to the immediate point, is continued acquiescence a good idea? Would we be better off with a return to majority rule? The Supreme Court, as Professor Edward S. Corwin writes, has made itself “morally answerable for the safety and welfare of the nation to an extent utterly without precedent in judicial annals.” The Court, as Professor Robert Nagel writes, “has isolated itself from the common man and the general culture, retaining ties of language and intellectual approach only to an academic elite.” . . .

[The] opponents of majority rule believe that majority rule will harm the rights of the minority. They suspect that the majority is bent on depriving the minority of its rights and that only the nine Supreme Court justices prevent them from doing it. The elite’s constitutional theory is accordingly simple—Thomas Jefferson wrote the Bill of Rights to enable the Supreme Court to protect the minority from the majority. Moreover, since protecting a minority is obviously preferable to oppressing one—and the Court’s primary mission is the restraint of the majority—then it follows that the more times the Court decides against the majority the better . . .

Jefferson did write the Bill of Rights to protect the individual and restrain the federal government, but he did not think the Supreme Court had the exclusive authority to interpret it. The Constitution does not assign to any branch the authority to interpret its meaning. Jefferson wrote that each branch is “independent of the others and has an equal right to decide for itself what is the meaning of the Constitution in the cases submitted to its action.” No branch has the absolute or final power to control the others, especially an unelected judiciary.

      A letter written in 1823 by Jefferson speaks of two conflicting views on government. There were those who had formed their opinions about government from “European writings and practices,” which suggested that “men in numerous association cannot be restrained within the limits of order and justice,” and, therefore, must be ruled by force—“by forces physical and moral, wielded over them by authorities independent of their will.”

      And then there were those who believed that man was a rational being, and he could be “restrained from wrong and protected in right” by powers confided to persons of his own choice. The Revolution, claimed Jefferson, was about self-rule.

      The authors continue:

The judiciary, led by the Supreme Court, is in the vanguard of the elite imposing non-majority values and policies on the country. They are, as Jefferson said, the “miners and sappers” of democracy. The traditional view was that the separation of powers made the legislature and executive responsible for change and the Court the guardian of continuity and stability. The Court, however, over the past thirty years, has made itself the major agent for change—one that operates without democratic check to accomplish ends that could not be achieved by democratic process. Is the new system better than majority rule? Have we finally found angels in the forms of justices to rule us?

      These are the questions that authors Quirk and Bridwell set out to answer in their excellent book, Judicial Dictatorship. Chapters explore the rise of federal judicial power, the erosion of majority rule by the Supreme Court, and the costs to citizens, when their society is designed by the judiciary.     Ω

See also, “Ending Judicial Dictatorship,” by Patrick Buchanan.    

Addendum 1:

      What happens when Supreme Court Justices reveal that they are willing to overturn American law for the laws of other lands or, more accurately, willing to subordinate American law to Europe’s supra-national legal body? Are such Justices still fit to be the Constitution’s watchkeepers?

Addendum 2:

      Here’s further evidence that the current stock of Supreme Court Justices see nothing special in that Document they have sworn to uphold. An editorial in the American Conservative (8/11/03) tells of a television appearance by Justice Stephen Breyer, in which he approvingly described the coming “one world” and reflected on how our Constitution “fits into the governing documents of other nations.” AC responds:

Comes the obvious question: why would our Constitution need to suit the dimensions of other nations’ governmental guideposts? And, for that matter, why should Americans accept its mutation in service of a global fantasy? That anyone would consider the Constitution so malleable is distressing. But for one of the nine entrusted with keeping its integrity to entertain publicly “whether our Constitution” shows disqualifying contempt for his oath.