DIVIDED WE CONTINUE

Brown’s status as an American Ninety-five Theses is undeserved and misleading. (For one thing, it was the murder of Emmett Till in 1955, as Juan Williams has noted, that sent outraged, united blacks into whites-only bus seats and lunch counters.) Yet the decision provided an important service in articulating a moral vision of a colorblind America. And it serves today as a reminder that liberals used to believe in such things, too. Alas, those days have now faded into ’50s nostalgia, largely because of what a half-century of jurisprudence has done to undermine Brown’s vision of integration.

It is therefore reassuring that a book should emerge from the judiciary that challenges the Balkanizing trends in our courts and culture. In One Nation Indivisible, Judge J. Harvie Wilkinson III takes up the range of racial and ethnic issues that affect contemporary separatism — affirmative action, immigration, voting rights, and so on. But unlike others who have covered the same ground recently, Wilkinson makes his case with such a firm but reserved manner that one can see why “judicial temperament” used to be a legitimate criterion for selecting judges, before it became a catchall way of borking conservative nominees to the bench.

Wilkinson, chief judge of the Fourth U.S. Circuit Court of Appeals, was appointed by President Reagan in 1984. And true to the principles of that administration, Wilkinson laments that the country has turned away from the legacy of Brown in its acceptance of the meltdown of the melting pot. ” Civil rights law,” he argues, should “regard racial separatism not simply as a moral wrong but as a barrier to togetherness.” Lately, though, racial separatism has become fashionable, lucrative, and highly resistant to reform. Recent trends in academia, the courts, and Congress have transmuted government into an “endless racial roundtable.” The growing acceptance of separatism fosters “a society where leaders neglect the need for interracial communication, where groups regard public resources as matters of racial entitlement, and where every minority asserts a special racial experience which others have not had and thus cannot question.”

Unfortunately, judges have had a lot to do with the transformation of America into this “racially obsessed Republic.” Wilkinson organizes the government’s separatist transgressions into four main areas: politics (racial gerrymandering), entitlements (affirmative action), bilingual education, and speech codes.

The chapter addressing racial gerrymandering is especially fruitful. It offers a pithy, forthright explanation of the circumstances that fuel the perpetual feuds over the Voting Rights Act during redistricting. State legislatures drawing up new legislative boundaries face a lawyer-enriching dilemma. They “cannot ignore race,” says Wilkinson, “because the Voting Rights Act requires that the racial composition of a district be a factor in redistricting.” On the other hand, a recent Supreme Court ruling (in Miller v. Johnson) prohibits race from being the predominant factor, although it may be a “limited” factor. The vagueness of this term invites litigation and rancor. The high court’s interpretations of the act have been a “mess,” Wilkinson says, contradictory in some respects and patched together by badly splintered majorities.

Affirmative action, in turn, is incendiary because it rewards groups that ” highlight racial oppression at the hands of America in order to bolster their present claims for preferential treatment.” To enlarge their portion of the spoils, ethnic activists coin broad terms that lump together (under their leadership, of course) diverse groups that have far less in common historically and culturally than do, for example, black and white Americans. Wilkinson is too genteel to note that the two most offensive terms at issue — “Latino” and “Asian” — are among the most presumptuous absurdities of modern sociology, hammering together as they do peoples of such ancient racial, linguistic, and cultural diversity as to make such groupings worthless for anything except the self-aggrandizement of the activists who press the terms into service.

The most disappointing chapter in the book deals with speech codes. In what could have been a groundbreaking analysis of the legality of these codes, Wilkinson briefly canvasses some of the speech codes adopted in major universities and dismisses them all indiscriminately as having an unacceptable “chilling effect” on free speech. A more careful treatment would not have simply skipped over, for example, Stanford’s limited speech code banning “fighting words,” defined by the university as speech “addressed directly to the [insulted] individual” that “makes use of insulting or ” fighting” words or non-verbal symbols.”

Wilkinson’s cursory treatment of speech codes is only one of several shortcomings. In his analysis of constitutional questions, Wilkinson seems oblivious to the problem of judicial activism, the stimulant of many racial woes. Most conspicuously, in his discussion of the equal-protection clause of the Fourteenth Amendment, he accepts at face value the modern tendency to conscript this Reconstruction amendment into combat against a broad range of social ills. Today, the amendment is commonly enlisted — successfully — by feminists, sexual deviants, and just about anyone else who has a beef with some government official or policy. In fact, as Raoul Berger, professor emeritus at Harvard Law School, has exhaustively demonstrated, the Fourteenth Amendment was designed with the narrow, clear, and admirable goal of ensuring simply that ex-slaves would be treated as equals before the law when their lives, liberty, or property was jeopardized in a criminal or civil action.

It is time for conservative jurists to restore to this amendment its original mission, thereby reducing much judicial mischief. Wilkinson not only fails to do this, he says at one point, incredibly, that the term “strict constructionism,” like “law and order,” amounts to nothing more than “code words” used by unscrupulous politicians to appeal to white racists.

Indeed, Wilkinson looks favorably on judicial activism when it suits his purposes. Like many on the right, he cheers on a high court that is increasingly likely to strike down racial quotas and similar offenses on grounds that they violate the equalprotection clause. But the Fourteenth Amendment no more prohibits affirmative action than it does the erstwhile all- male admissions policies of the Virginia Military Institute. Conservatives should stick to the original intent behind the amendment, and the Constitution generally. Otherwise, the document loses all meaning and judges elude all constraints. Wilkinson thinks otherwise, as does the Supreme Court, which now finds itself competing with Congress to undo racial preferences that, however misguided, are after all democratically and constitutionally enacted.

At times, Wilkinson strains a bit to posture as a centrist. For example, he offers this remarkable verbal shrug: “To this day, I do not know whether the Simpson verdict was a racial statement.” The verdict was, of course, an unambiguous racial statement of a highly inflammatory sort, and Wilkinson’s hesitancy to say so is odd.

Finally, the book is marred by too many humdrum declarations that border on cliches and detract from a work of otherwise significant stature — “What we make of New America is up to us”; “New America requires new thinking on civil rights”; “There is much debate these days about what America means. There is no one answer to this question.” The very term “New America” as a description of our racially transformed republic is itself regrettably dull.

Similarly, the biggest criticism likely to be made of One Nation Indivisible is that there is little new or original in the book as compared with other books of its type now on the shelves. This is fair enough, but conservatives know that such a standard, by itself, is a poor measure of any book’s worth. Most original ideas are, of course, wrong; originality in the area of public policy is mostly a recipe for disaster. It is useful for public figures like Judge Wilkinson to reaffirm the customs and ideas that once bound us together but that have now been jettisoned out of a combination of greed, ethnic pride, and intellectual negligence. Wilkinson performs this service well, offering, despite his lapses, a solid contribution to the growing body of literature assailing America’s flirtation with disunion.

Andrew Peyton Thomas, deputy counsel to the governor of Arizona, last wrote for THE WEEKLY STANDARD about victims’ rights.