A Summary of: The Politically Incorrect Guide™ to the Constitution
by Kevin R.C. Gutzman
Compiled and Edited by
Dr. Jimmy T. (Gunny) LaBaume
Chapter 12: The Court’s Brave New World: From Affirmative Action to Sodomy
The Court decided that “all deliberate speed” was not desegregating the schools fast enough. So, in Green v. County School Board of New Kent County (1968) it declared that public schools must achieve racial balance immediately. Since it wasn’t getting the results it wanted, the Court ruled that voluntary desegregation plans were unacceptable.
Ironically (or maybe not so), the Court now insisted on assigning students to schools on the basis of their race when, in Brown v. Board of Education, it had prohibited that. In other words, in order to “implement” Brown, the court inverted it. And, busing (even the youngest) students between neighborhoods became required by the “constitution.”
Based on the racialist assumption that black students could never receive an equal education while going to school with other black students, this judicially mandated social experiment became a national political issue and especially in areas where schools had never been segregated. Meantime, notorious for their hypocrisy, wealthy liberals supported the Court’s decision but sent their children to private schools.
From this we can plainly see why the Founding Fathers left policy mostly to the states. It also is evident why Congress, not the court, is supposed to be the legislative body. Idiocy like this could not have occurred under a republican system. It occurred only because life tenure (and wealth) insulates federal judges. They cannot be held accountable for, nor do they experience the full effects of, their actions.
Gutzman sums it up well: “George III’s authority in America never rivaled that of a contemporary federal judge.”
Lyndon Johnson instituted “affirmative action” which has since come to be little more than “benign race discrimination.”
The Supreme Court got into the act with Griggs v. Duke Power Co. (1971). Duke Power required a high school diploma and a certain aptitude test score for employment and promotion. The Court found this to be racially discriminatory and declared that employment standards had to be “reasonably related” to the relevant job. Businesses responded by hiring and promoting staff on a racial basis—i.e. the non-discrimination policy has, in effect, resulted in a virtual mandate to discriminate.
Quotas also appeal to university administrators. In University of California Board of Regents v. Blake (1978), Allan Blake had been denied admission to the UC Medical School even though his qualifications were better than those of all the minority candidates that were admitted. The Court’s decision was nonsensical. Four of the judges would have upheld UC’s program, four would not have and the fifth voted to force “the school to admit Blake while also stating that schools could give particular races and ethnic groups special privileges to augment ‘educational diversity.’” But, these admissions had to be “on the margin” – i.e. outright quotas could not be used. Ironically, “…given the enormous disparity between the qualifications of most students admitted…and those of the preferred minority…marginal “affirmative action” would have admitted few, if any, specially privileged minority students.”
In Brown (back in the 1950s) the Court announced that non-discrimination was the “new law for a new day.” But, they didn’t like the results. So, they told the states that it was acceptable to discriminate against high-achieving racial groups in favor of underachievers. Apparently, in the Court’s opinion at least, some kinds of racial discrimination are better than others.
Sex discrimination and the 14th Amendment
The 14th Amendment says nothing about sex discrimination. During the 1860s-70s, Congress omitted language from the 15th Amendment guaranteeing women the right to vote. A hundred years later, it was ready to break new legislative ground.
In Frontiero v. Richardson (1973), Justice Brennan opined that sex discrimination was on par with race discrimination. If his had been the prevailing opinion, the Court would have once again passed a constitutional amendment into law.
In Craig v. Boren (1976) the Court invalidated an Oklahoma law setting the male drinking age at 21 and the female at 18. In making the law, the Oklahoma legislature had relied on the evidence that boys 18 to 20 were 11 times more likely to be arrested for alcohol-related driving infractions than those aged 21 or older. But, Justice Brennan substituted his “elevated expertise” for the wisdom of a local, elected legislature. There is no relationship between this ruling and the court’s previous definition of the Equal Protection Clause being for the purpose of protecting freed slaves from their masters.
The Court struck down “sexist” admissions policies in Mississippi University for Women v. Hogan (1982) and then again in 1996 when it disallowed the all male admissions policy of the Virginia Military Institute (VMI). This is in spite of the fact that, for a century and a half, the people of Virginia had considered the all-male education at VMI to be worthy of public support. But, the Court used the fig leaf of the Equal Protection Clause to substitute its judgment for that of Virginia’s legislature and arrive at a different conclusion.
The Supreme Court and “privacy”
The so-called right to privacy cannot be found anywhere in the constitution. It was simply invented and developed by the Supreme Court along with other “rights” such as the “right” to contraception, abortion, homosexual sodomy and even a right not to have a state constitutional provision that bans officials from conferring special privileges upon homosexuals.
In Griswold v. Connecticut (1965) a physician had been convicted of violating the state’s ban on prescribing contraceptives. He appealed claiming that the law violated the 14th Amendment’s Due Process Clause—although it (the law) had nothing to do with protecting the rights of freed slaves. Only the magic of the Supreme Court could render such logic even remotely tenable.
In Eisenstadt v. Baird (1972), the Court extended its newly declared contraception right to unmarried couples. Then in 1973, it declared that there is a “constitutional” right to an abortion. By some sort of inverted logic, they concluded that such a right is a component of “privacy” and therefore is a general right enforceable against the states.
Roe v. Wade undid the abortion regulations of all 50 states. The 14th amendment, intended to protect former slaves, had somehow been turned around to establish a right to end the lives of unborn children.
It seemed likely that the Court would backtrack on Roe. But, it failed to overturn Roe in Planned Parenthood v. Casey (1992). It also “delivered a breathtakingly silly statement of constitutional philosophy” when it said that it “calls the contending sides of a national controversy to end their…division by accepting a common mandate rooted in the Constitution.”
This statement conveniently overlooked the Court’s own pro-slavery decision in Dred Scott which had settled a “national controversy.” It ignored history when it said it could not reverse its decision of a controversial case. Sandra Day O’Connor even went on to say that Roe had been “in conformance with the Constitution.” Really? What part? Why the Due Process Clause, what else?
The Supreme Court has overturned the right of the people of the states to govern themselves, the 10th Amendment and, therefore the Constitution all in the name of the “rule of law.” Take, for example, the pearl delivered by Anthony Kennedy: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Well, yes but, these are rights that are not enumerated in the Constitution and are, therefore, best left to the people and the states—not an unaccountable Supreme Court.
Then the Court went on to use the Griswold precedent to establish a right to homosexual sodomy. In Bowers v. Hardwick (1986), in light of the long-standing tradition in the English-speaking world of punishing sodomy, the Court ruled that there was no fundamental right to engage in homosexual sodomy. And, the Constitution has never been amended to create any such right. But the Supreme Court did simply by deciding that there should be such a right. As had by then become the norm, it used the 14th Amendment’s Due Process Clause to overturn state laws, its own previous ruling and the English common law tradition.
Romer v. Evans (1996) involved a Colorado state constitutional amendment that denied self-identified homosexuals any special minority privileges. The Court overturned the amendment and said that state officials must be allowed to provide special privileges to such people. The Equal Protection Clause of the 14th Amendment, according to the Court’s interpretation, meant that homosexuals could not be denied the opportunity to seek special privileges from state and local governments. The Court ruled that the commonly held position that homosexuality is not about identity but about conduct is invalid. Once again, it used the 14th Amendment to access limitless power to disallow whatever state policies with which it disagreed.
As with Roe the Court preempted a legitimate political debate. As it had consistently done since 1937, it sided against the traditional (and coincidentally Christian) position.
The court then declared a constitutional right to homosexual sodomy in Lawrence v. Texas (2003). This can be called “legislation” because it is not founded on any provision of the constitution. Cynics rightfully ask why sodomy is protected while bestiality, incest, and group sex is not.
The Supreme Court’s electoral interventions
The purpose of the 1st Amendment was to place limits on the federal government in order to guarantee robust political debate. This was duly noted in 1833 in Barron v. Baltimore. However, in recent years the Court has allowed pornographers to operate in spite of state and local policies against them. Simultaneously, under the guise of “campaign finance reform,” Congress is allowed to restrict political discussion through bans on advertising within 60 days of an election—something that has always been a powerful tool against incumbents.
So, what originated as a guarantee that Congress could not regulate political speech has come to be treated by the Supreme Court as allowing exactly that. This is absurd. The actual effect is to protect incumbent politicians and media (who are free to editorialize) while restricting the purchase of advertising.
In the 2000 election, Florida announced that Bush had defeated Gore by a margin small enough to call for a recount by Florida law. The recount yielded the same result. Then a flurry of suits reached the state Supreme Court. The problem was that this court was interpreting its state constitution like the Federal Supreme Court interprets the federal Constitution—as it pleased with open disregard for Florida law.
The proper remedy lay with the Florida legislature which was fully empowered by the federal Constitution to establish Florida’s allocation of electors.
Furthermore, the secretary of state, under the state constitution, had a deadline. If counties failed to submit their votes on time, she could constitutionally ignore them.
Nevertheless, the Supreme Court could not restrain itself from opining on the electoral process in Florida . Only Rehnquist pointed out that the Constitution gives state legislatures the power to assign electoral votes. Surprisingly Rehnquist’s position carried the day by one vote—one vote in favor of the Constitution over the judicial clique that thinks the law is what it says it is.
The prospects of righting two centuries of manipulation of the federal Constitution are pretty dim. The 17th Amendment (popular election of senators) is a serious obstacle because it stripped the states of their only check on federal overreaching. Another obstacle is the modern case method of instructing law students. This makes it highly unlikely that many lawyers know that the Constitution of the judges is not the one the people voted for. Furthermore, opinion molders (academia, the liberal media and other elite) view an originalist understanding of the Constitution as disingenuous or irrelevant.
In sum, if we want the Constitution enforced the way it was explained at the time of its ratification, we must overcome the received wisdom about constitutional law.
The main problem with the Court’s rulings is that they allow Congress to do too much and state governments to do too little. The Court has ignored the intended division of powers between state and local governments. Thus, the solution is to provide the states with a new check on federal interference. Gutzman suggests a constitutional council with the power to review the federal court’s decisions. The council could be composed of either the 50 state chief justices or 50 elected members.
At the Philadelphia Convention a woman asked Benjamin Franklin what they had wrought. He said, “a republic, if you can keep it.” It is time we took it back.
The Essence of Liberty Volume I: Liberty and History chronicles the rise and fall of the noble experiment with constitutionally limited government. It features the ideas and opinions of some of the world’s foremost contemporary constitutional scholars. This is history that you were not taught at the mandatory government propaganda camps otherwise known as “public schools.” You will gain a clear understanding of how America’s decline and decay is really nothing new and how it began almost immediately with the constitution. Available in both paperback and Kindle versions.
You might be interested in the other two volumes of this three volume set: The Essence of Liberty Volume II: The Economics of Liberty and The Essence of Liberty Volume III: Liberty: A Universal Political Ethic.