Mark Brady
James Rothenberg explains why you should stop voting if you want to change the country.
Monday, August 20, 2007 - 20:57
Comments
Wendy McElroy
On June 5th, the New York Times published a transcript of the 2008 Republican presidential candidates debate moderated by Wolf Blitzer in which Ron Paul participated. Page 20 of the transcript contains the following exchange on separation of Church and State....
BLITZER: Congressman Paul...What do you say about this whole issue of church and state and these issues that are coming forward right now?
PAUL: Well, I think we should read the First Amendment, where it says, "Congress shall write no law.” [NOTE: the actual wording is "Congress shall make no law."] And we should write a lot less laws regarding this matter. It shouldn’t be a matter of the president or the Congress. It should be local people, local officials. The state should determine so many of these things that we just don’t need more laws determining religious things or prayer in school. We should allow people at the local level.
That’s what the Constitution tells us. We don’t need somebody in Washington telling us what we can do, because we don’t have perfect knowledge. And that’s the magnificence of our Constitution and our republic. We sort out the difficult problems at local levels and we don’t have one case fit all, because you have a
Supreme Court ruling like on Roe versus Wade; it (ruined ?) it for the whole country.
There are at least four disturbing aspects to Paul's statement that the separation of Church and State should be decided on the local level -- from state legislatures to town meeting to local school boards.
1) to get a technical and lesser point out of the way...the self-described Constitutionalist is advocating an unconstitutional position. The Fourteenth Amendment provides, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Those privileges and immunities are delineated in the first ten Amendments (the Bill of Rights) -- the First of which was clearly intended to provide for freedom of conscience/religion by removing state involvement in promoting or quashing specific beliefs.
2) He apparently does not believe in the tripartite division of power -- the Executive, the Legislative, the Judicial -- because he wants to hobble the Supreme Court so that it cannot act as a check and balance. If he attempts to change the power and the role of the Supreme Court, then he will be acting unconstitutionally in this regard as well. Elsewhere he has stated,
"[I]f federal judges wrongly interfere and attempt to compel a state to recognize the marriage licenses of another state, that would be the proper time for me to consider new legislative or constitutional approaches."
3) Since he believes "the difficult issues" like the relationship between Church and State should be sorted out at the local level, I must assume he believes that all the other "difficult issues" -- e.g. the right to bear arms, the availability of due process -- should be decided on a state-by-state or even city-by-city level. The Bill of Rights is a profoundly pro-natural rights document; Paul's diminishment of the Bill of Rights is profoundly pro-statist, leaving natural rights to the discretion of tens of thousands of local governments who are free to act as petty tyrants.
4) The establishment of theocracy is not and cannot be a libertarian position and, yet, this is the door Paul is deliberately opening. It is not merely abortion that will be targeted. Consider two quotes from Paul: "If I were in Congress in 1996, I would have voted for the Defense of Marriage Act[.]" AND "I was an original cosponsor of the Marriage Protection Act, HR 3313, that removes challenges to the Defense of Marriage Act from federal courts' jurisdiction."
The man would impose a Religious Right Conservate agenda upon the nation and circumvent Constitutional protections offered to the individual by appealing to "state's rights" and "local authority." Since when do libertarians consider states to have rights? Only individuals have rights and those rights can be violated as easily by a state government as by a federal one.
BLITZER: Congressman Paul...What do you say about this whole issue of church and state and these issues that are coming forward right now?
PAUL: Well, I think we should read the First Amendment, where it says, "Congress shall write no law.” [NOTE: the actual wording is "Congress shall make no law."] And we should write a lot less laws regarding this matter. It shouldn’t be a matter of the president or the Congress. It should be local people, local officials. The state should determine so many of these things that we just don’t need more laws determining religious things or prayer in school. We should allow people at the local level.
That’s what the Constitution tells us. We don’t need somebody in Washington telling us what we can do, because we don’t have perfect knowledge. And that’s the magnificence of our Constitution and our republic. We sort out the difficult problems at local levels and we don’t have one case fit all, because you have a
Supreme Court ruling like on Roe versus Wade; it (ruined ?) it for the whole country.
There are at least four disturbing aspects to Paul's statement that the separation of Church and State should be decided on the local level -- from state legislatures to town meeting to local school boards.
1) to get a technical and lesser point out of the way...the self-described Constitutionalist is advocating an unconstitutional position. The Fourteenth Amendment provides, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Those privileges and immunities are delineated in the first ten Amendments (the Bill of Rights) -- the First of which was clearly intended to provide for freedom of conscience/religion by removing state involvement in promoting or quashing specific beliefs.
2) He apparently does not believe in the tripartite division of power -- the Executive, the Legislative, the Judicial -- because he wants to hobble the Supreme Court so that it cannot act as a check and balance. If he attempts to change the power and the role of the Supreme Court, then he will be acting unconstitutionally in this regard as well. Elsewhere he has stated,
"[I]f federal judges wrongly interfere and attempt to compel a state to recognize the marriage licenses of another state, that would be the proper time for me to consider new legislative or constitutional approaches."
3) Since he believes "the difficult issues" like the relationship between Church and State should be sorted out at the local level, I must assume he believes that all the other "difficult issues" -- e.g. the right to bear arms, the availability of due process -- should be decided on a state-by-state or even city-by-city level. The Bill of Rights is a profoundly pro-natural rights document; Paul's diminishment of the Bill of Rights is profoundly pro-statist, leaving natural rights to the discretion of tens of thousands of local governments who are free to act as petty tyrants.
4) The establishment of theocracy is not and cannot be a libertarian position and, yet, this is the door Paul is deliberately opening. It is not merely abortion that will be targeted. Consider two quotes from Paul: "If I were in Congress in 1996, I would have voted for the Defense of Marriage Act[.]" AND "I was an original cosponsor of the Marriage Protection Act, HR 3313, that removes challenges to the Defense of Marriage Act from federal courts' jurisdiction."
The man would impose a Religious Right Conservate agenda upon the nation and circumvent Constitutional protections offered to the individual by appealing to "state's rights" and "local authority." Since when do libertarians consider states to have rights? Only individuals have rights and those rights can be violated as easily by a state government as by a federal one.
Sunday, August 19, 2007 - 07:59
David T. Beito
Sunday, August 19, 2007 - 11:38
Keith Halderman
The Columbia University's National Center on Addiction and Substance Abuse has just released the results of their most recent survey on teen drug use which provides evidence to back up the thesis of Jacob Sullum’s book, Saying Yes, In Defense of Drug Use. In that volume the author argues that the negative effects of the currently illegal drugs are highly exaggerated.
The survey reveals that the percentage of teenagers who believe that there is considerable drug use in their High School rose from 44% in 2002 to 61% now. However, it also tells us that the percentage of teenagers who list drug use as their number one concern dropped from 32% in 1995 to 24% now. Therefore this research shows us that teens have a greater exposure to illegal drug use with a corresponding decreased fear of them. If use of these prohibited drugs was the soul destroying, death inducing, horrific experience that the government says it is then you would not get the kind of survey results you see above.
Sunday, August 19, 2007 - 11:40
Keith Halderman
Jacob Sullum has an interesting column in The Washington Times where he looks at some of the limits and drawbacks which accompany open government. I particularly like the way he ends it; ”Although honesty and openness are surely preferable to dishonesty and secrecy (in politics, at least), they're not an adequate solution to a government that does too much and is therefore a magnet for people seeking gifts and favors. If a pickpocket becomes a mugger, he becomes more open and honest, but that doesn't make him more admirable.”
Sunday, August 19, 2007 - 11:47
David T. Beito
I just got back from the Alabama Republican Straw poll. Paul won a crushing 81 percent of the total.
Paul supporters came from all over the state and the party establishment here was overwhelmed and caught completely off guard. This is a wonderful victory, at least it was for me.
This is evidence that Ron's campaign not only has maintained its enthusiasm but has staying power. Here are the results:
Ron Paul - 216 (81%)
Tom Tancredo - 0 (0%)
Sam Brownback - 2 (.75%)
John McCain - 2 (.75%)
Mike Huckabee - 6 (2%)
Rudy Giuliani - 7 (3%)
Fred Dalton Thompson - 9 (3%)
Duncan Hunter - 10 (4%)
Mitt Romney - 14 (5%)
Saturday, August 18, 2007 - 15:49
Mark Brady
In today's issue of The Times (London) Matthew Syed suggests that we not cower from the hard truth about race and IQ.
"The debate over racial differences in IQ represents perhaps the greatest scientific controversy of the past half-century. The facts are not in serious dispute: blacks score, on average, significantly lower than whites in IQ tests in the United States, Britain and beyond.
"Some argue that the only plausible response is to accept that blacks are naturally less intelligent than whites, a view that causes outrage among equal rights campaigners. But is there an alternative explanation for these puzzling statistics and what would it mean if there were not?"
Read the rest here.
"The debate over racial differences in IQ represents perhaps the greatest scientific controversy of the past half-century. The facts are not in serious dispute: blacks score, on average, significantly lower than whites in IQ tests in the United States, Britain and beyond.
"Some argue that the only plausible response is to accept that blacks are naturally less intelligent than whites, a view that causes outrage among equal rights campaigners. But is there an alternative explanation for these puzzling statistics and what would it mean if there were not?"
Read the rest here.
Friday, August 17, 2007 - 00:41
Mark Brady
Terence Kealey is Vice Chancellor of the University of Buckingham, Britain's one and only university that does not receive direct subsidy from the state. He also writes on science for The Times (London). Go here for his latest column on recent findings in neuroeconomics. Be advised that"public schools" in Britain are private, which will help you make more sense of the penultimate paragraph.
Terence Kealey is known for his book The Economic Laws of Scientific Research (Macmillan Press, 1995; St. Martin's Press, 1996) and his journalism and scholarship where he has been an articulate and outspoken opponent of government funding of science and higher education. His new book Sex, Science and Profits will be published by Heinemann (UK) in January 2008.
Terence Kealey is known for his book The Economic Laws of Scientific Research (Macmillan Press, 1995; St. Martin's Press, 1996) and his journalism and scholarship where he has been an articulate and outspoken opponent of government funding of science and higher education. His new book Sex, Science and Profits will be published by Heinemann (UK) in January 2008.
Friday, August 17, 2007 - 11:21
Anthony Gregory
Certainly not. Listen to the heroic (and civil) Scott Horton take on Stu Bykofsky from the Philadelphia Daily News, author of the crazed article “To save America, we need another 9/11” as well as this unsatisfactory retraction, based on the new insight that even another 9/11 wouldn't do the trick.
This is really wonderful radio. I love listening to Scott's great show regularly, but this is particularly grand. He really corners Bykofsky, dismisses the warmongering nationalism, and makes a great concise case against Bush's war on terror, Clinton's foreign policy, the bipartisan extraConstitutional surveillance state, and American warmongering nationalism in general. Bykofsky tries to make Scott look like a leftie hypocrite. Of course it doesn't work against this intimidatingly well informed Rothbardian dove."Whichever administration is working against my liberty, they are the target of my criticism," Scott says, as he educates his guest.
It's a powerful 18 minutes. Give it a listen.
This is really wonderful radio. I love listening to Scott's great show regularly, but this is particularly grand. He really corners Bykofsky, dismisses the warmongering nationalism, and makes a great concise case against Bush's war on terror, Clinton's foreign policy, the bipartisan extraConstitutional surveillance state, and American warmongering nationalism in general. Bykofsky tries to make Scott look like a leftie hypocrite. Of course it doesn't work against this intimidatingly well informed Rothbardian dove."Whichever administration is working against my liberty, they are the target of my criticism," Scott says, as he educates his guest.
It's a powerful 18 minutes. Give it a listen.
Thursday, August 16, 2007 - 13:51
Mark Brady
Unless you're a Brit, you've probably never heard of this Conservative Party MP and Leader of the House of Commons under Margaret Thatcher. As you might expect, I usually don't care for politicians but I liked John Biffen. Read Edward Pearce's obituary and perhaps you'll see why.
Wednesday, August 15, 2007 - 11:52
Mark Brady
Michael Neumann writes a nice appreciation of the historian Raul Hilberg.
Wednesday, August 15, 2007 - 13:27
Mark Brady
Watch Jim Cramer here.
Or as Martin Wolf explains in his most recent column in tomorrow's Financial Times:
"When William Poole, chairman of the St Louis Federal Reserve, said that"the Fed should respond to market upsets only when it has become clear that they threaten to undermine achievement of fundamental objectives of price stability and high employment or when financial market developments threaten market processes themselves", I gave a cheer.
"Not so Jim Cramer, hedge fund manager and television pundit, who declared last Friday that chairman of the Federal Reserve, Ben Bernanke,"is being an academic!...My people have been in this game for 25 years. And they are losing their jobs and these firms are going to go out of business, and he’s nuts! They're nuts! They know nothing!...The Fed is asleep."
"So capitalism is for poor people and socialism is for capitalists. This view is not just offensive. It is catastrophic."
Wolf's column is behind a subscription wall but you can take out a free 15-day trial subscription to the Financial Times.
Or as Martin Wolf explains in his most recent column in tomorrow's Financial Times:
"When William Poole, chairman of the St Louis Federal Reserve, said that"the Fed should respond to market upsets only when it has become clear that they threaten to undermine achievement of fundamental objectives of price stability and high employment or when financial market developments threaten market processes themselves", I gave a cheer.
"Not so Jim Cramer, hedge fund manager and television pundit, who declared last Friday that chairman of the Federal Reserve, Ben Bernanke,"is being an academic!...My people have been in this game for 25 years. And they are losing their jobs and these firms are going to go out of business, and he’s nuts! They're nuts! They know nothing!...The Fed is asleep."
"So capitalism is for poor people and socialism is for capitalists. This view is not just offensive. It is catastrophic."
Wolf's column is behind a subscription wall but you can take out a free 15-day trial subscription to the Financial Times.
Tuesday, August 14, 2007 - 23:41
Chris Matthew Sciabarra
Just a note to announce the publication of the new issue of The Journal of Ayn Rand Studies, which features contributions from some of our esteemed L&P associates, including Stephen Cox and David T. Beito.
For information on the new issue, check out the table of contents and abstracts here and the contributor biographies here.
I'm also delighted to announce that the Jounral has entered into an electronic licensing relationship with EBSCO Publishing, the world's most prolific aggregator of full-text journals, magazines, and other sources. For further information, see Notablog.
Tuesday, August 14, 2007 - 20:21
David T. Beito
Monday, August 13, 2007 - 10:51
Amy H. Sturgis
Upward Mobility and the Common Good: Toward a Literary History of the Welfare State by Bruce Robbins is new from Princeton University Press (July 2007):
We think we know what upward mobility stories are about--virtuous striving justly rewarded, or unprincipled social climbing regrettably unpunished. Either way, these stories seem obviously concerned with the self-making of self-reliant individuals rather than with any collective interest. In Upward Mobility and the Common Good, Bruce Robbins completely overturns these assumptions to expose a hidden tradition of erotic social interdependence at the heart of the literary canon.
Reinterpreting novels by figures such as Balzac, Stendhal, Charlotte Brontë, Dickens, Dreiser, Wells, Doctorow, and Ishiguro, along with a number of films, Robbins shows how deeply the material and erotic desires of upwardly mobile characters are intertwined with the aid they receive from some sort of benefactor or mentor. In his view, Hannibal Lecter of The Silence of the Lambs becomes a key figure of social mobility in our time. Robbins argues that passionate and ambiguous relationships (like that between Lecter and Clarice Starling) carry the upward mobility story far from anyone's simple self-interest, whether the protagonist's or the mentor's. Robbins concludes that upward mobility stories have paradoxically helped American and European society make the transition from an ethic of individual responsibility to one of collective accountability, a shift that made the welfare state possible, but that also helps account for society's fascination with cases of sexual abuse and harassment by figures of authority.
We think we know what upward mobility stories are about--virtuous striving justly rewarded, or unprincipled social climbing regrettably unpunished. Either way, these stories seem obviously concerned with the self-making of self-reliant individuals rather than with any collective interest. In Upward Mobility and the Common Good, Bruce Robbins completely overturns these assumptions to expose a hidden tradition of erotic social interdependence at the heart of the literary canon.
Reinterpreting novels by figures such as Balzac, Stendhal, Charlotte Brontë, Dickens, Dreiser, Wells, Doctorow, and Ishiguro, along with a number of films, Robbins shows how deeply the material and erotic desires of upwardly mobile characters are intertwined with the aid they receive from some sort of benefactor or mentor. In his view, Hannibal Lecter of The Silence of the Lambs becomes a key figure of social mobility in our time. Robbins argues that passionate and ambiguous relationships (like that between Lecter and Clarice Starling) carry the upward mobility story far from anyone's simple self-interest, whether the protagonist's or the mentor's. Robbins concludes that upward mobility stories have paradoxically helped American and European society make the transition from an ethic of individual responsibility to one of collective accountability, a shift that made the welfare state possible, but that also helps account for society's fascination with cases of sexual abuse and harassment by figures of authority.
Sunday, August 12, 2007 - 08:37
Gus diZerega
Given Randy Barnett's claims to still be a libertarian and also to like Giuliani, I wonder what he and those who defend him think of the following quotation by hizzoner:
“Freedom is not a concept in which people can do anything they want, be anything they can be. Freedom is about authority. Freedom is about the willingness of every single human being to cede to lawful authority a great deal of discretion about what you do.”
see
http://www.dailykos.com/story/2007/8/11/16360/0636
and
http://www.rmchronicle.com/index.php?option=com_content&;task=view&id=1138
“Freedom is not a concept in which people can do anything they want, be anything they can be. Freedom is about authority. Freedom is about the willingness of every single human being to cede to lawful authority a great deal of discretion about what you do.”
see
http://www.dailykos.com/story/2007/8/11/16360/0636
and
http://www.rmchronicle.com/index.php?option=com_content&;task=view&id=1138
Sunday, August 12, 2007 - 15:32
David T. Beito
As they did with Katrina, the politicians and public have taken it for granted that the Minneapolis bridge collapse illustrates the need for bigger government. In record speed, Governor Tim Pawlenty recanted his previous opposition to a gas tax increase for bridge and road repears. Few have even considered that the collapse might illustrate the dangers of relying too much, not too little, on governments for infrastructure.
One hundred and fifty years ago, the citizens of Nevada, who faced an even more daunting infrastructure crisis, came to a different conclusion. An example was the Placerville State Road, a government-maintained mountain artery on the section of the Overland Trail. It"was literally lined with brown-down stages, wagons, and carts, presenting every variety of aspect, from the general smash-up to the ordinary capsize. Wheels had taken rectangular cuts to the bottom, broken tongues projected from the mud; loads of dry goods and whiskey barrels lay wallowing in the general wreck of matter; stout beams cut from the roadside were scattered here and there, having served in vain efforts to extricate the wagons from the oozing mire."
Instead of assuming that these problems proved the need for more government, Nevada's politicians and voters turned to the private sector. They granted dozens of charters to companies and individuals to construct and maintain roads. Between the 1850s and 1880s, local entrepreneurs financed, built, and operated more than one hundred toll roads and bridges. This represented an enormous amount of activity in an area with so few people.
While some grumbled about paying tolls, even the sternest critics acknowledged that privatization brought dramatic improvements in quality. Referring to the Placerville Road, one observer commented that"a narrow, dangerous, wretched trail [which] was scarcely fit for the passage of sure-footed pack-mules" had been transformed into"a broad, compact, well-graded highway, which might be fairly be likened to an old Roman road."
For more on the rise and fall of Nevada's toll roads and bridges, see my article (co-authored with Linda Royster Beito), "Rival Road Builders: Private Toll Roads in Nevada, 1852-1880," Nevada Historical Society Quarterly 41 (Summer 1998), 71-91.
Saturday, August 11, 2007 - 00:54
Karen Kwiatowski
It could have been entitled"Liberty and Power!"
Bill Moyer's Journal yesterday featured John Nichols and Bruce Fein on impeachment and the constitution. I missed last month's interview with Bruce Fein on the same subject -- well worth watching, if only for the quotes on the need for presidential honesty made by Republican congressmen back in the day of Clinton's impeachment.
Both the"liberal" and" conservative" guests were making the same points, using the same language, and they quietly lauded Ron Paul -- and sounded much like him. It almost made me think the country could be saved, because normal, reasonable, government-constraining people like John and Bruce live here and are considered mainstream in their respective political circles.
They talked about the supine congress (in those words), the jackboot-licking mainstream media (not in those words) and the nature of the failure of a Republic. They talked about our historical precedents and trends leading to this point. They talked about the dangers of a king, and what the founders would think. They offered peaceful solutions -- impeachment hearings in the House, they seem to think, would be a great start.
Then it was over.
Bill Moyer's Journal yesterday featured John Nichols and Bruce Fein on impeachment and the constitution. I missed last month's interview with Bruce Fein on the same subject -- well worth watching, if only for the quotes on the need for presidential honesty made by Republican congressmen back in the day of Clinton's impeachment.
Both the"liberal" and" conservative" guests were making the same points, using the same language, and they quietly lauded Ron Paul -- and sounded much like him. It almost made me think the country could be saved, because normal, reasonable, government-constraining people like John and Bruce live here and are considered mainstream in their respective political circles.
They talked about the supine congress (in those words), the jackboot-licking mainstream media (not in those words) and the nature of the failure of a Republic. They talked about our historical precedents and trends leading to this point. They talked about the dangers of a king, and what the founders would think. They offered peaceful solutions -- impeachment hearings in the House, they seem to think, would be a great start.
Then it was over.
Saturday, August 11, 2007 - 07:50
Jonathan J. Bean
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).
Saturday, August 11, 2007 - 19:33
