Aug 11, 2007
The Scary Origins of the Dissent in the School Race Decision
There is a tustle over at another HNN site concerning the alleged racist, conservative, knuckle dragging origins of Chief Justice John Roberts and those who supported his decision to rule school race quotas as unconstitutional:
http://hnn.us/articles/41501.html
I have a "dog in this fight" because I include the opinions of Chief Justice Roberts and Associate Justice Thomas in a work sponsored by the Independent Institute, _Race and Liberty: The Classical Liberal Tradition of Civil Rights_ (forthcoming). Scholars such as Angela Dillard and Nancy Maclean lump 1950s racists, conservatives, Republicans, libertarians and segregationists all together. David Beito, Robert Collins and I have responded to the idiocy of Nancy MacLean's approach: Roberts is a "conservative," William F. Buckley was a conservative, Buckley opposed civil rights laws and was thus a racist, ergo Roberts and his ilk are also racist. Never mind Roberts' birth date of 1955!
Justice Thomas does address the "scary origins" of that recent decision as existing in the dissent: Justice Breyer culls up some of the same arguments of those who opposed Brown v. Board in '54. I'm appending an excerpt from Thomas's opinion. In my view, the Roberts and Thomas opinions are squarely in the mainstream of a longstanding classical liberal civil rights tradition. No decision is perfect, and it is sad that classical liberals--not "scary" conservatives--must resort to the courts to strike down government sponsored discrimination. But that's the world we live in.
For the full decision, see
http://tinyurl.com/33hdt5
Here is the excerpt from Thomas's opinion. Paralleling Maclean's piece, it might be titled "The Scary Origins of the Dissent in the School Race Decision":
*****
Parents Involved in Community Schools v. Seattle School District No. 1, et al. 551 U.S. _____ (2007).
Thomas (concurring):
Most of the dissent's criticisms of today's result can be traced to its rejection of the color-blind Constitution. The dissent attempts to marginalize the notion of a color-blind Constitution by consigning it to me and Members of today's plurality. But I am quite comfortable in the company I keep. My view of the Constitution is Justice Harlan's view in Plessy: "Our Constitution is color-blind, and neither knows nor tolerates classes among citizens." And my view was the rallying cry for the lawyers who litigated Brown. ("That the Constitution is color blind is our dedicated belief"); ("The Fourteenth Amendment precludes a state from imposing distinctions or classifications based upon race and color alone"); see also In Memoriam: Honorable Thurgood Marshall, Proceedings of the Bar and Officers of the Supreme Court of the United States, X (1993) (remarks of Judge Motley) ("Marshall had a 'Bible' to which he turned during his most depressed moments. The 'Bible' would be known in the legal community as the first Mr. Justice Harlan's dissent in Plessy v. Ferguson. I do not know of any opinion which buoyed Marshall more in his pre-Brown days"). . . .
The segregationists in Brown embraced the arguments the Court endorsed in Plessy. Though Brown decisively rejected those arguments, today's dissent replicates them to a distressing extent. Thus, the dissent argues that "[e]ach plan embodies the results of local experience and community consultation." Similarly, the segregationists made repeated appeals to societal practice and expectation. The dissent argues that "weight [must be given] to a local school board's knowledge, expertise, and concerns," and with equal vigor, the segregationists argued for deference to local authorities. The dissent argues that today's decision "threatens to substitute for present calm a disruptive round of race-related litigation," and claims that today's decision "risks serious harm to the law and for the Nation." The segregationists also relied upon the likely practical consequences of ending the state-imposed system of racial separation. And foreshadowing today's dissent, the segregationists most heavily relied upon judicial precedent.
The similarities between the dissent's arguments and the segregationists' arguments do not stop there. Like the dissent, the segregationists repeatedly cautioned the Court to consider practicalities and not to embrace too theoretical a view of the Fourteenth Amendment. And just as the dissent argues that the need for these programs will lessen over time, the segregationists claimed that reliance on segregation was lessening and might eventually end.
What was wrong in 1954 cannot be right today. Whatever else the Court's rejection of the segregationists' arguments in Brown might have established, it certainly made clear that state and local governments cannot take from the Constitution a right to make decisions on the basis of race by adverse possession. The fact that state and local governments had been discriminating on the basis of race for a long time was irrelevant to the Brown Court. The fact that racial discrimination was preferable to the relevant communities was irrelevant to the Brown Court. And the fact that the state and local governments had relied on statements in this Court's opinions was irrelevant to the Brown Court. The same principles guide today's decision. . . .
In place of the color-blind Constitution, the dissent would permit measures to keep the races together and proscribe measures to keep the races apart. Although no such distinction is apparent in the Fourteenth Amendment, the dissent would constitutionalize today's faddish social theories that embrace that distinction. The Constitution is not that malleable. Even if current social theories favor classroom racial engineering as necessary to "solve the problems at hand," the Constitution enshrines principles independent of social theories. Indeed, if our history has taught us anything, it has taught us to beware of elites bearing racial theories. See, e.g., Dred Scott v. Sandford (1857) ("[T]hey [members of the "negro African race"] had no rights which the white man was bound to respect"). Can we really be sure that the racial theories that motivated Dred Scott and Plessy are a relic of the past or that future theories will be nothing but beneficent and progressive? That is a gamble I am unwilling to take, and it is one the Constitution does not allow.
http://hnn.us/articles/41501.html
I have a "dog in this fight" because I include the opinions of Chief Justice Roberts and Associate Justice Thomas in a work sponsored by the Independent Institute, _Race and Liberty: The Classical Liberal Tradition of Civil Rights_ (forthcoming). Scholars such as Angela Dillard and Nancy Maclean lump 1950s racists, conservatives, Republicans, libertarians and segregationists all together. David Beito, Robert Collins and I have responded to the idiocy of Nancy MacLean's approach: Roberts is a "conservative," William F. Buckley was a conservative, Buckley opposed civil rights laws and was thus a racist, ergo Roberts and his ilk are also racist. Never mind Roberts' birth date of 1955!
Justice Thomas does address the "scary origins" of that recent decision as existing in the dissent: Justice Breyer culls up some of the same arguments of those who opposed Brown v. Board in '54. I'm appending an excerpt from Thomas's opinion. In my view, the Roberts and Thomas opinions are squarely in the mainstream of a longstanding classical liberal civil rights tradition. No decision is perfect, and it is sad that classical liberals--not "scary" conservatives--must resort to the courts to strike down government sponsored discrimination. But that's the world we live in.
For the full decision, see
http://tinyurl.com/33hdt5
Here is the excerpt from Thomas's opinion. Paralleling Maclean's piece, it might be titled "The Scary Origins of the Dissent in the School Race Decision":
*****
Parents Involved in Community Schools v. Seattle School District No. 1, et al. 551 U.S. _____ (2007).
Thomas (concurring):
Most of the dissent's criticisms of today's result can be traced to its rejection of the color-blind Constitution. The dissent attempts to marginalize the notion of a color-blind Constitution by consigning it to me and Members of today's plurality. But I am quite comfortable in the company I keep. My view of the Constitution is Justice Harlan's view in Plessy: "Our Constitution is color-blind, and neither knows nor tolerates classes among citizens." And my view was the rallying cry for the lawyers who litigated Brown. ("That the Constitution is color blind is our dedicated belief"); ("The Fourteenth Amendment precludes a state from imposing distinctions or classifications based upon race and color alone"); see also In Memoriam: Honorable Thurgood Marshall, Proceedings of the Bar and Officers of the Supreme Court of the United States, X (1993) (remarks of Judge Motley) ("Marshall had a 'Bible' to which he turned during his most depressed moments. The 'Bible' would be known in the legal community as the first Mr. Justice Harlan's dissent in Plessy v. Ferguson. I do not know of any opinion which buoyed Marshall more in his pre-Brown days"). . . .
The segregationists in Brown embraced the arguments the Court endorsed in Plessy. Though Brown decisively rejected those arguments, today's dissent replicates them to a distressing extent. Thus, the dissent argues that "[e]ach plan embodies the results of local experience and community consultation." Similarly, the segregationists made repeated appeals to societal practice and expectation. The dissent argues that "weight [must be given] to a local school board's knowledge, expertise, and concerns," and with equal vigor, the segregationists argued for deference to local authorities. The dissent argues that today's decision "threatens to substitute for present calm a disruptive round of race-related litigation," and claims that today's decision "risks serious harm to the law and for the Nation." The segregationists also relied upon the likely practical consequences of ending the state-imposed system of racial separation. And foreshadowing today's dissent, the segregationists most heavily relied upon judicial precedent.
The similarities between the dissent's arguments and the segregationists' arguments do not stop there. Like the dissent, the segregationists repeatedly cautioned the Court to consider practicalities and not to embrace too theoretical a view of the Fourteenth Amendment. And just as the dissent argues that the need for these programs will lessen over time, the segregationists claimed that reliance on segregation was lessening and might eventually end.
What was wrong in 1954 cannot be right today. Whatever else the Court's rejection of the segregationists' arguments in Brown might have established, it certainly made clear that state and local governments cannot take from the Constitution a right to make decisions on the basis of race by adverse possession. The fact that state and local governments had been discriminating on the basis of race for a long time was irrelevant to the Brown Court. The fact that racial discrimination was preferable to the relevant communities was irrelevant to the Brown Court. And the fact that the state and local governments had relied on statements in this Court's opinions was irrelevant to the Brown Court. The same principles guide today's decision. . . .
In place of the color-blind Constitution, the dissent would permit measures to keep the races together and proscribe measures to keep the races apart. Although no such distinction is apparent in the Fourteenth Amendment, the dissent would constitutionalize today's faddish social theories that embrace that distinction. The Constitution is not that malleable. Even if current social theories favor classroom racial engineering as necessary to "solve the problems at hand," the Constitution enshrines principles independent of social theories. Indeed, if our history has taught us anything, it has taught us to beware of elites bearing racial theories. See, e.g., Dred Scott v. Sandford (1857) ("[T]hey [members of the "negro African race"] had no rights which the white man was bound to respect"). Can we really be sure that the racial theories that motivated Dred Scott and Plessy are a relic of the past or that future theories will be nothing but beneficent and progressive? That is a gamble I am unwilling to take, and it is one the Constitution does not allow.
What classical liberals have said about the decision:
Ward Connerly:
http://tinyurl.com/36agw3
Roger Clegg:
http://tinyurl.com/376ms4
Of course, the social engineers couldn't put people in "boxes" if more Americans followed the Libertarian Party's call to "Boycott the Census" (beyond a head count).