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The Demise of Liberalism
Forty years after Brown v. Board of Education, civil rightshas lost its good name to quotas. As civil rights has come tobe equated with preferential treatment based on race andgender, the public has withdrawn its support. This is not surprising.The civil rights movement was a popular and powerful democraticmovement precisely because the vast majority of Americansstand unequivocally for equality under the law.
Outrage over preferential treatment for "protected minorities"has taken the place of guilt over segregation. Americans whohailed Brown are distressed and confused that Brown is now usedto support privilege. Americans who supported desegregation andequal rights are astonished to find themselves governed by quotasdespite the overwhelming rejection of quotas by the 1964 CivilRights Act. Americans who marched, protested, and voted in favorof equal opportunity now discover that, in defiance of statutorylaw, race and gender preferences govern access to jobs, trainingprograms, promotions, universities, and even home mortgages.
Where the opportunity is open to them, as in California, withits public referendum system, citizens are moving to take backtheir sovereignty over the law. Momentum is building in Californiafor a 1996 initiative, modeled on the 1964 Civil Rights Act, toamend the state's constitution to prohibit the use of quotas byCalifornia public institutions. Polls indicate that the initiative'sobjective of ending affirmative action is enormously popular inCalifornia, even in traditionally liberal bastions such as Berkeleyand San Francisco. And asCalifornia goes, so goes the country.Citizens in other states are following suit with their own grassrootsefforts to place similar referenda on the ballot.
The hostility to race and gender preferments reflects a generalsense that reverse discrimination violates fundamental normsof justice and fair play. Thomas Wood, a codrafter of the Californiainitiative, and executive director of the California Association ofScholars, says that he has been denied a teaching job because heis a white male: "I was once told by a member of a search committeeat a university, `You'd walk into this job if you were the rightgender.' "Glynn Custred, a California State University anthropologyprofessor, says that he decided to join Wood in codrafting theinitiative because of his concern about the destructive impactracial quotas were having on higher education, where the push fordiversity overshadows academic merit.
The initiative has drawn support from across the politicalspectrum in California. Initiative supporter Charles Geshekter, ateacher of African history at Chico State University, wrote in theAugust 14, 1994, Chico Enterprise Record, "As a liberal Democrat,I despise those who advocate preferential treatment based on genitaliaor skin color. Having taught university classes on the historyof European racism towards Africa for twenty-five years, I amappalled to watch sexist and racist demands for equality of outcomeserode the principle of affirmative equality of opportunity."of California regent Ward Connerly, a black businessmanwho supports the initiative, lamented in the August 10, 1994,Sacramento Bee that "we have institutionalized this preferentialtreatment."
Opposition to quotas was initially unfocused because theirimpact was not widely felt. The public was aware of a few celebratedcases, but they seemed to be the exception rather than therule. Today this is no longer the case. Randy Pech, the owner ofAdarand Constructors, lost the bid for a guardrail construction projectin Colorado's San Juan National Forest because of his genderand skin color. Pech put in the lowest bid, but this wasn't enough tooffset the disadvantage of being a white male. His competitor, aHispanic-owned firm, was legally entitled to taxpayers' money inthe form of a bounty paid by the U.S. Department of Transportationto the prime contractor for hiring minority-owned subcontractors.The bounty was greater than the difference in the bids, so it paidthe prime contractor to hire the Hispanic-owned firm.
Pech filed a discrimination lawsuit, which worked its way tothe Supreme Court in January 1995. There U.S. Solicitor GeneralDrew S. Days III argued that Pech had no standing to be in courtdespitethe obvious fact that the U.S. government had paid theprime contractor $10,000 to discriminate against him.
The solicitor general's argument blatantly reveals the systemof racial preferments that passes for civil rights. "Protectedminorities" have been entitled to an automatic presumption of discriminationever since the Supreme Court's Griggs ruling in 1971,and therefore have been able to sue in court without having toshow that they have suffered from any discriminatory acts.Today's college-aged protected minorities were born into a legallyprivileged class and have never suffered from any legal act of discrimination.Yet U.S. policy assumes that they are victims of discriminationand provides remedies in the form of preferments. Incontrast, victims of reverse discrimination find that they are disadvantagedin the law.
The anomaly of these divergent rights is having politicalrepercussions. In the November 1994 congressional elections,white males deserted the Democratic party in droves, votingRepublican by a margin of 63 percent to 37 percent. The WallStreet Journal has identified "angry white males" as an importantnew political group, which now sees that helping minorities meansdiscriminating against white males.
Brown v. Board of Education and the Civil Rights Act of 1964did not lead to the promised colorblind society, but to a system ofracial preferments that an overwhelming majority of Americansfinds very disturbing. In The Scar of Race, Paul Sniderman andThomas Piazza report that 80 percent of Americans oppose busingand affirmative action in employment and education. Even theminority that is supposed to benefit from these policies is split 50-50on busing and affirmative action. In our democracy, federalbureaucrats and federal courts have managed to impose a publicpolicy that is overwhelmingly opposed by "We the People." A countrythat overwhelmingly supported civil rights thirty years ago nowoverwhelmingly opposes what they have becomerace and genderpreferments.
This book offers an explanation for these ironic outcomes; inshort, democracy gave way to judicial and regulatory edicts, andpersuasion gave way to coercion. This happened because democracywas seen as the problem and not the solution. The SupremeCourt and elites generally were persuaded that Americans were soirredeemably racist that democracy would forever perpetuate segregation.The Court embarked on what has become a decades-longeffort to reform society from the judicial bench instead of thelegislative chamber. More is at stake than the plight of white malesand the relative fortunes of political parties. At issue is equalitybefore the law and the democratic process itself. As freedom ofconscience, goodwill, and persuasion are supplanted by regulatoryand judicial coercion, privilege reappears in open defiance ofJustice John Marshall Harlan's dictum: "There is no caste here.Our Constitution is color-blind." Privilege is incompatible withdemocracy, which depends on the notion of a common good. Thereis no common interest in a society where rights depend upon statusand people do not stand equal under the law as citizens.
In one of the odder twists of American intellectual and politicalhistory, it was not an American but a Swedish sociologist whocrystallized the belief that Americans were too irredeemably racistto be allowed to decide race questions democratically. Legal scholarMark Tushnet has pointed out that "the intellectual atmospherein which the Court operated enthusiastically received GunnarMyrdal's critical study of the caste system, An AmericanDilemma," which argued that America was a deeply racist society.In Brown's oral argument Justice Robert Jackson said, "I supposethat realistically the reason this case is here is that action couldn'tbe obtained from Congress."
Myrdal argued that it was unrealistic to expect a racist peopleto legislate the end of segregation. Therefore, the Court wouldhave to end segregation by decree, which is what the Court did.Ironically, the widespread public support for the decision beliedthe assumption on which it was made.
If Brown's result had been only to end public segregation, itwould have been a victory. But more than that happened. Brownbelittled democracy. The decision was based on the belief thatdemocracy could not do the right thing and would not produce amoral outcome. The basis for the desegregation decision threw outthe fundamental presumption of any democratic ordergoodwillamong citizens regardless of class, race, or gender. Without goodwillthere is no basis for uniting different people in democratic self-rule.
The importance of goodwill to the case for democracyCis notgenerally understood. Perhaps this is because the politicalphilosophers of liberalism, like John Stuart Mill, wrote before KarlMarx challenged them with the supremacy of class interests. Millassumed goodwill and did not see any need to formulate explicitlyits importance to the case for democracy. He simply took it forgranted, as do in our opinion those who argue that democraticgovernance is simply a matter of contracts between people in pursuitof mutual benefits.
Marx challenged democracy on the grounds that its essentialfeature, goodwill among citizens, was an illusion. The truth aboutsociety, Marx said, is class interests, and the class interests of capitalistsdominate. In Marx's analysis, law and democratic politicsare just part of the "ideological superstructure" that serves theunderlying dominant material interests. The brutal truth, Marxconcluded, is that class consciousness results in each class servingonly its own interest. Thus, no basis exists for uniting differingclasses in a common interest. Marx solved the problem of governanceby predicting the overthrow of the bourgeoisie and emergenceof a classless society.
Marx's challenge to democracy was total. If class interestsare supreme, people are unaffected by moral persuasion. TheFirst Amendment is pointless, and freedom of conscience simplyupholds class interests. Liberalism's self-image as a moral orderreplacing tyranny was reduced by Marx to a mere self-delusion.
Such views have gained a wider currency than is realized.The tyranny that democracy protects us against is long forgotten.It is commonplace today to hear democracy denigrated as a systemthat serves organized special interests. Critical Race Theoristsand radical feminists reduce society to disparate race and genderinterests. Even among libertarians there is a preoccupation notwith the protections that democracy affords but with protectingdissenters, minorities, and those who are different from the will ofthe majority. There is danger in becoming too disillusioned withdemocracy. If we give up on "We the People," we will cease to becitizens and become subjects.
The process of giving up on democracy is further along thanAmericans imagine. The Supreme Court gave up on it in 1954.Brown was not just the end of public segregation, it was also thebeginning of a judicial campaign to impose desirable racial outcomes.Neutral rules have been supplanted by social engineering.This outcome probably would have shocked much of the Browncourt, even as judicial and bureaucratic subversions of the 1964Civil Rights Act shocked congressional leaders who shepherdedthis legislation.
The more frequently courts step in to remedy the shortcomingsof democracy, the less the presumption that self-rule is trustworthy.Courts, moreover, have gone beyond making the law toseizing the power of the purse from local and state governments.Scholars such as Ivan Hannaford have concluded that in the UnitedStates, race is crowding out politics altogether and that race andethnicity have displaced citizenship as the badge of identity. Thiscan only be worsened by the continuing struggle to gamer as manyrace (and gender) privileges and preferments as possible.
Whatever the failures of democracy, they do not warrantsubstituting judicial and regulatory coercion for majority rule. Theapproach to race taken forty years ago has weakened our democracyand the concept of citizenship. It was done with good intentionsand high hopes, but with disregard of the requirements andachievements of liberal society. Segregation could and should havebeen ended by legislative action.
Liberal society is a historic achievement. The mountingassaults on this achievement are the cause for the growing senseof unease about Brown. The unease is not with desegregation butwith the manner in which it was done.
Many liberals have grown uneasy with Brown and its aftermathbecause of the pressures put on them to accept in Brown'sname a hardening system of racial preferments and infringementson the First Amendment as necessary steps to complete the desegregationthat Brown began. Conservatives are uneasy becauseBrown seems to have separated constitutional law from theConstitution and instead based it on sociology. Critical RaceTheorists have dismissed Brown as, at best, a Cold War ploy todeflect communist propaganda, and, at worst, a plot to destroyblack identity.
At the heart of all of this is the feeling that in Brown the Courtsubstituted itself for the law. In the most important constitutionaldecision of our time, the Court rested its decisions neither on legalprecedent nor constitutional interpretation, but on psychologicalexperiments and a sociological analysis.
Many legal scholars have criticized Brown as an abandonmentof law. Columbia Law Professor Herbert Wechsler, a prominentNew Deal liberal, Nuremberg prosecutor, and NAACP litigationconsultant, criticized Brown as an unprincipled decision thatsacrificed neutral legal principles to the Justices' desired outcome.In his comprehensive study, Government by Judiciary: TheTransformation of the Fourteenth Amendment, Raoul Bergeraccused the Brown decision of following the discredited doctrinethat the end justifies the means when it usurped legislative power"on the ground that there is no other way to be rid of an acknowledgedevil."
Even those primarily concerned with social results must findBrown lacking. In The Burden of Brown: Thirty Years of SchoolDesegregation, Raymond Wolters concluded that in the wake ofthe decision education deteriorated even in the school districtsthat were the original defendants in the case. After surveying theresults of Brown, University of Chicago Professor GeraldRosenberg wrote in 1991 in his book, The Hollow Hope, that thejudiciary is impotent to induce social change successfully. And in1994, Irving Kristol wrote that Brown, "contrary to expectations,turned out to be the prelude to a major step backward inAmerican race relations."
The unpopular and educationally disastrous aftermath ofBrownbusing and racial quotashas been laid at the decision'sfeet by no less a figure than Yale Law Professor Alexander Bickel,who as Justice Felix Frankfurter's law clerk was instrumental inboth shaping and obtaining the Brown decision. University ofTexas Law Professor Lino Graglia has stated that Brown turnedthe Supreme Court into a "seemingly omnipotent instrument foreffecting fundamental social changes without obtaining the consentof the American people or their elected representatives."Political scientist Edward J. Erler says that the "legacy of Brown v.Board of Education" is "judicial oligarchy."
Many who have stood by Brown have become disaffected atsome stage in its aftermath. Some believe the problems began withbusing. Others accept busing but reject quotas. Still others believethat the civil rights movement went off track with assaults on freespeech and academic freedom. For others the trouble began withracially gerrymandered congressional districts, race-weighted votingproposals, and a perceived shift in the civil rights movementtoward separatist thinking.
None of the disaffected, however, have explained why badcame out of good only at their point of disaffection. Moreover peoplewho accept Brown but reject its aftermath are confronted withthe fact that the same lawyers who litigated Brown litigated itsaftermath. For NAACP attorneys such as Jack Greenberg, busing,racial quotas, and gerrymandered districts are logical consequencesof Brown. For the NAACP it was all part of litigating therevolution. What is undeniable is that the unpopular aftermath ofBrown followed logically from the decision's assumption that anabsence of racial goodwill precluded a democratic solution.
Conservative critics of judicial activism and libertarian criticsof expansive government have accommodated themselves toBrown because they believe that segregation was unfair and unjustwhatever its legal basis. Legal philosophers have long recognizedequity as a necessary component of law and its interpretation. Inthe seventeenth century Grotius defined equity as "the correction ofthat, wherein the law is deficient." Brown could be seen as the useof interpretation to correct inequity in the law.
It would have been better for democracy if the Court hadargued Brown on this basis rather than on Myrdal's assumptionthat democracy is unequal to the challenge of race. The renownedjurist William Blackstone said that there is a place for the moralconscience of judges in their interpretation of law in behalf of equity,but he warned of the dangers of letting the heart take over thelaw:
The liberty of considering all cases in an equitable light must not be indulged too far, lest thereby we destroy all law, and leave the decision of every question entirely in the breast of the judge. And law, without equity, though hard and disagreeable, is much more desirable for the public good, than equity without law; which would make every judge a legislator, and introduce most infinite confusion; as there would then be almost as many different rules of action laid down in our courts, as there are differences of capacity and sentiment in the human mind.
Blackstone could have added that when judges become legislatorsdemocracy is preempted and law ceases to flow from thepeople. Georgetown Law Professor Peter B. Edelman, a Clintonadministration candidate for the federal bench, has argued thatBrown is the precedent that gives the judiciary the power to makethe law whenever the legislature comes up short on equity. In theNovember 1987 Hastings Law Journal, he argues that Brown wasa case "where the Court saw a political and legislative impasseregarding very basic and important rights, and decided to initiatea process of constitutional change." Brown is historic because thejudiciary exercised its "affirmative obligation" to make the lawserve a right that Congress was shortchanging, thereby establishingthe principle of "judicial intervention to require legislativeintervention."
Once this door is open, it is hard to close. Edelman wants thejudiciary to use its four-decades-old power to instruct legislators"that they must do better than they have done" for the poor. Hebelieves that just as Congress failed to meet its duty to blacks, ithas failed to do right by the poor. Edelman sees a judicial mandateof a guaranteed income as the logical extension of Brown. Equitythus becomes a wedge for the judiciary to run away with the law.
Desegregation is an important accomplishment, but it losesits luster when it is done in a way that discredits democracy. AsFriedrich Hayek said, majority rule is "the essential condition forthe absence of arbitrary power and therefore of freedom." Thepower of the majority is not unlimited, but it is an absolute powerover the imposition of government coercion. No government coercivepower is legitimate in the pursuit of any end unless it isapproved by at least a majority. In recent decades this power ofdemocracy has been breached. Federal judges have imposed busing,quotas, and taxation on unwilling majorities. This governanceby an extrademocratic clerisy is an atavistic throwback to a pre-Americanform of government.
Political philosophers and realists long ago made clear theperils of relying on a Charlemagne to protect us from ourselves.Today many see the Court as a Charlemagne whose function is toexercise veto power over democracy. They regard Brown as a gooddecision and the Civil Rights Act as good legislation, while deploringtheir distortion by subsequent judicial and regulatory rulings.Those who hold to this view are hard pressed to explain how wecan rely on the Court to protect us from the tyranny of the majoritywhen the Court only randomly does the right thing itself.
This book offers no plea for segregation or apology for racialdiscrimination. It is conceivable that Brown could have simplyended any government racial policy and stopped at that, and thatthe Civil Rights Act could have prohibited intentional racial discriminationin the workplace and stopped at that. These salutaryoutcomes were denied to American society because Brown gaveup on goodwill and substituted judicial coercion for democraticoutcomes. The Civil Rights Act gave up on freedom of conscience,preferring instead regulatory coercion. Both events took decision-makingpower away from the people on the grounds that theycannot be trusted to do the right thing if permitted to rule themselves.
Brown and the 1964 act did more than attack segregationand racial discrimination. They also attacked the presumption ofgoodwill and freedom of conscience, which are the foundations ofcivil society. Brown was based on the assumption that representativedemocracy cannot produce moral outcomes. Consequently,Brown's aftermath is not only busing and racial preferments, butalso judicial usurpation of legislative power. The Civil Rights Actextended Brown's premise of inexorable racism from politics toprivate life. It reflects the belief that freedom of conscience wouldperpetuate racial discrimination in private affairs just as democracywould perpetuate segregation in public life.
We are still laboring under this heavy indictment of democracy.In the end it appears that Karl Marx won once the argumentshifted from the supremacy of class interests to the supremacy ofrace interests. There is no way to govern a society composed ofimplacable separate interests except through coercion fromabove. If we continue the assaults on goodwill, we will lose ourdemocracy.
Wall Street Money Machine
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By Wade B. Cook
Lighthouse Publishing Group, Inc.
Copyright © 1997 Wade B. Cook.All rights reserved.