It is good news that the Clinton administration, the ACLU, and the rest of the “civil rights” establishment are fighting to have the California Civil Rights Initiative ruled unconstitutional. Their effort may indeed have “no likelihood of success on the merits,” as a unanimous three-judge panel of the Ninth U.S. Circuit Court of Appeals held last week when it lifted a lower court’s injunction blocking CCRI. But the fight, expected to resume shortly before a larger panel of the Ninth Circuit, usefully clarifies a fundamental public issue.
We should have had a national debate in 1996 on the question of whether individual rights or collective rights are the foundation of that “republican form of government” guaranteed by the Constitution to every state. But in an amazing display of political incompetence, Dole and Kemp made tax reduction their centerpiece. This, despite overwhelming evidence that the American people — after Bush in 1988 and Clinton in 1992 — were not prepared to believe campaign promises to cut taxes. Clinton easily neutralized the Dole/Kemp proposals by offering targeted tax cuts instead of general ones.
Voter cynicism aside, the tax-cut issue was of Lilliputian proportions in comparison with the question of whether our constitutional rights are derived from the natural and God-given rights of human persons or from their race, sex, religion, and ethnic origin This was the basic issue in the American Civil War, which pitted individual rights as proclaimed in the Declaration of Independence against collective rights, called states’ rights Jack Kemp rarely makes a speech without invoking the name and party of Abraham Lincoln. But when he had the opportunity, before a national audience, of making Lincoln’s argument his own — of demonstrating once again why a house divided between collectivism and individualism cannot stand — he fell strangely silent.
Conservatives around the country have expressed indignation at the federal district court judge who blocked the implementation of the California Civil Rights Initiative “Judicial usurpation of legislative authority is an old story,” they say. “What is new here is the apparent willingness to block the direct expression of popular will in elections.” It is a mistake, however, to think that a direct expression of popular will is more authoritative than the expression of that same will by an elected legislature. It is a much greater error to think that the “popular will” is the ultimate arbiter of questions of this magnitude.
The rights to be secured by constitutional government are antecedent to both majorities and minorities In the Notes on Virginia, Thomas Jefferson proclaimed, “It was not an elective despotism that we fought for.” And in his first inaugural address, he said:
All, too, will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will, to be rightful, must be reasonable; that the minority possess their equal rights, which equal laws must protect, and to violate which would be oppression.
There are few today, we presume, who would deny that any state initiative restoring Jim Crow — no matter how large the majority that passed it — ought to be held null and void. Sober citizens would recognize not only that such an initiative violated the federal Constitution, but also that, like slavery, it violated rights with which we have been endowed by our Creator, rights the Constitution came into being to protect.
To the intelligent citizen unsophisticated in the arcana of present-day constitutional law, what was truly remarkable about Judge Thelton Henderson’s district-court ruling was the presumption that the California Civil Rights Initiative violated the equal protection clause of the Fourteenth Amendment It certainly outraged common sense to suppose that a law decreeing that there should be no preferences based upon race or sex discriminated against some because of their race or sex. The aforesaid unsophisticated citizen would naively assume that the words of the initiative and the words of the equal protection clause meant what they said. But Judge Henderson operates in an Orwellian universe where the words of statutes and of the Constitution may be held to mean the opposite of what they mean according to common sense.
To understand the present divorce of constitutional law from the Constitution — and from common sense — the most notable landmark is the opinion of Chief Justice Earl Warren, for a unanimous court, in Brown v. Board of Education in 1954. The decision in that case quite reasonably held that segregated public schools violated the equal protection clause of the Fourteenth Amendment But the reasoning of the court in arriving at this decision was anything but reasonable. In fact, Warren’s opinion has probably done more harm than any since Taney’s in Dred Scott. The flood of liberal judicial activism — including Roe v. Wade — followed directly from this precedent.
Warren, in effect, turned his back on the intentions of those who framed and ratified the Fourteenth Amendment. Whatever they thought, he said, we today know that to segregate black schoolchildren
generates a feeling of inferiority that may affect their hearts and minds in a way unlikely ever to be undone . . . Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson (1896), this finding is amply supported by modern authority.
The alleged “modern authority” was psychologist Kenneth Clark’s experiments showing how children of different colors reacted to dolls of different colors. The doll tests, however, did not justify the conclusions Warren attributed to them, and it is doubtful that Warren even knew what was in the reports of Clark’s research For Warren, the tests were a means of invoking a higher authority for the Constitution than the Constitution itself With Warren blazing the trail, the principles of the Constitution would henceforth be found not in a reactionary past but in an enlightened future. This new jurisprudence would be that of a “living Constitution,” emancipated from a dead past and keeping pace with the progress of science.
Yet Warren must have known, even in 1954, that psychology — and science generally — does not speak with a single voice Then as now he could have found “experts” who, for a fee, would testify on almost any side of a question In choosing which experts to believe, the justices were acting in perfect independence of both science and the Constitution. With this precedent, the justices could decide what the Constitution meant by deciding what they wanted it to mean. Warren’s opinion opened the floodgates for a judicial activism that ever since has invented rights and remedies uncontrolled by any systematic juridical thought anchored in the historic meaning of the actual Constitution. This is the point at which the distinction between judicial and legislative power broke down.
That Warren had deliberately turned his back on traditional constitutional interpretation is shown by the fact that another opinion, squarely within the framework of such interpretation, lay open before him. It was Justice John Marshall Harlan’s 1896 dissenting opinion in Plessy. State-enforced segregation of public facilities was inconsistent with the equal protection clause of the Fourteenth Amendment, Harlan had said, because,
in view of the Constitution, in the eye of the law, there is in this country no superior dominant ruling class of citizens. There is no caste here. Our Constitution is color blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. . . . The law regards man as man, and takes no account of his surroundings when his civil rights, as guaranteed by the supreme law of the land, are involved.
That the Constitution contemplates “man as man,” that it is “color blind,” means neither more nor less than what the Declaration of Independence meant by “all men are created equal.” Warren’s opinion, based upon the hypothetical “feelings” of Negro children, did not reverse Plessy. It did not rule out the possibility that whenever Negro schoolchildren had different feelings, segregation might be lawful. In the years since Brown, it has often been found that in circumstances of sufficient cultural disparity, it is integration, not segregation, that causes feelings of inferiority in black children. For many years now on college campuses, black students and black faculty in quest of “ethnic identity” have pursued policies of both intellectual and social segregation. What Warren’s opinion really meant was that it was how the justices felt about how the children felt — -or about how they thought that the children felt (or ought to have felt!) — that determined what constitutional law would be. But rights are objective, and feelings are subjective. The former should not be decided by the latter. Harlan’s dissenting opinion is a clear demonstration of how utterly superfluous it was to have recourse to the feelings of black schoolchildren to determine their rights.
An amicus brief submitted recently to the U.S. District Court for the Northern District of California in defense of the constitutionality of the California Civil Rights Initiative notes that CCRI “essentially enshrines in California law Justice Harlan’s dissenting opinion in Plessy.” The argument from a “color blind Constitution” is the true ground, indeed the only rightful ground, upon which the fight to outlaw racial preferences can be won. But there are those, even among the supporters of the initiative, who are blindly hostile to admitting the principles of the Declaration of Independence into constitutional jurisprudence. We note not only that Harlan’s opinion was ignored by the court in 1954, but that it has never been endorsed by any subsequent court. The defenders of the California Civil Rights Initiative, standing upon the authority of Harlan’s “color blind” Constitution, will have to realize that support for their position must come from outside of present-day jurisprudence, conservative no less than liberal. *
