Mr.
DOOLEY & THE LAW OF UNINTENDED CONSEQUENCES
What happened last week was that the U.S. Supreme Court rewrote the Constitution, twice. Few mainstream media observers have couched these decisions in such apocalyptic language. Despite that lack of attention, it is nonetheless true. The Constitution was amended without prior notice, much less a single vote by any elected representative of the people. In the major media, the decisions have been reported as “Supreme Court upholds Affirmative Action” and “Gay Rights Wins”. But those were simple results not what really happened nor what is truly important. In
O’Connor’s diversity opinion, the 14th Amendment was re-written.
Here, in its entirety, is the pertinent section of the 14th Amendment: This is the oft cited “equal protection” clause of the 14th Amendment. Its plain language is admirable but the diversity decision has awarded UNequal protection to some groups of persons - blacks, Hispanics and American Indians - as opposed to other groups of persons - whites and Asians. That is new law; a new dimension has been added to the 14th Amendment, the dimension of group rights, whereas before our Constitution has always spoken of individual rights. Read the Constitution; it speaks of “persons” and “citizens”, never whites or blacks; nowhere does it speak of one group of persons having some right denied to another group of persons. O’Connor and her supporting cast - Souter, Ginsberg, Stevens and Kennedy - did precisely that: they awarded some groups rights denied to other groups. They said that a public university may (not must, may) take race into account as a factor for admittance to that university so as to achieve a predetermined result, that of having a “diverse” student body. Thus, the admissions department of, say, the University of Colorado, may predetermine that its student body is to be composed of so many persons of various races, irrespective of the other qualifications of its applicants. But, you may be sure, that same University would assuredly not be permitted to use the rule to configure a monochromatic student body, say an all-Asian student body as there are many kinds of Asians. No, this is a rule which is designed as a cover for Universities now and other entities later to favor mostly blacks ahead of groups of all others. This is a first, a sad first, for America. We have just been legally balkanized. It is reminiscent of Quebec vs. Canada, French speakers vs. English speakers. The theory of separatism, is now approvingly ensconced in the Constitution of the United States. It sounds like “separate but equal” to me. I thought we got rid of that accursed principle in 1955 with the Brown v The Board of Education decision. O’Connor, who has been generally liberal since her days in the Arizona legislature, again bowed to peer pressure on this issue as its legal underpinnings are arbitrary. She decided that diversity is a “compelling” state interest. For someone planning to work in academia post-retirement, perhaps some self-interest clouded O’Connor’s judgment as her judgement will be welcomed at those upper level, elitist universities where she is likely to work. It used to be that race mattered and blacks were thus kept out. Now, race doesn’t really matter but it is one of many factors to be considered. Despite that amorphous construct, O’Connor instructs us that a “critical mass” of blacks, Hispanics and American Indians is appropriate to create her and other elitist’s beloved diversity. Why some specific number of “minorities” is needed to attain such mass is explained by alleging that only a handful of minorities would create social unease for the minority. Can’t have that, but we can have a critical mass so as to assuage their social ease and elitist social conscience. What’s critical mass: two words meaning “quota”. While O’Connor’s decision is opaque, muddied and wrong, the Kennedy “privacy” decision is far worse. The racial quota principle affects a limited number of people: those whites and Asians who attend universities other than the one of their choice and for which they were qualified. It will be expanded but again its effect will be the dividing of Americans. The Kennedy decision will reverberate in American life and culture forever and in ways presently unknown. According
to Roe, the privacy right emanates from the 9th Amendment. Here is
the text of the 9th. Strict constructionists say one cannot find a right to privacy in the 9th. If you can’t either, then you would disagree with Roe and with the Texas sodomy decision as each is based on that perceived right found by some in the 9th Amendment. Really. This column has previously written of its concurrence with the right of consenting adults to indulge in their personal sexual preferences without regard to the long arm of the law in any of its intrusive forms, particularly with its police power. That said, the Court decided the case on the wrong basis, an alleged privacy right, which basis will open the door to other claims based on that “right”. We will no doubt see challenges to the laws on polygamy and prostitution, particularly prostitution in a private home. Who can now deny two persons of the same sex the right to marry? Or the right of adult brother and sister to fornicate to their heart’s content? Or two adult strangers, of either sexual combination, the right to anything at all? We are all now on that slippery slope with only one direction to go. The privacy issue will add grease to the further decline of the nuclear family as did no-fault divorce in the 1960s. Once divorce was reduced to the payment of damages based on the ability of one party to terminate the marital contract without penalty, divorce rates rose dramatically. It was the beginning of the social discord born of divorce, it gave impetus to the reduction of the influence of the male in the raising of children and, coupled with Roe, lessened the value of marriage. Kennedy has opened the church-doors to gay “marriage” and other social taboos born from millennia of human experience. O’Connor made legal the race hustling and racial divisiveness of the American social fabric. None knows where these will lead. Each justice followed fellow elitist opinion. Mr. Dooley’s aphorism still holds. It has been a truly terrible week for America. The Constitution has been unilaterally amended, racial discord has been retained for another generation or two and the historical morality of humankind has been tossed aside. None knows where this leads but it cannot be a better place. |