Dictators in Black Robes
Mises Review 2, No. 1 (Spring 1996)
THE NEW COLOR LINE: HOW QUOTAS AND PRIVILEGE DESTROY DEMOCRACY
Paul Craig Roberts and Lawrence M. Stratton
Regnery Publishing, 1995, vii + 247 pp.
This is a much more radical book than its title suggests. Criticism of quotas and affirmative action is hardly new. As the authors note, opinion polls show a vast majority of the public opposed to these programs; and even among the groups that benefit from them, opinion on their merits is split. A line common among neoconservatives, ever anxious to curry favor among the public, relies on this popular discontent.
These programs, it is alleged, betray the true struggle for civil rights, culminating in the 1964 Civil Rights Act and the 1965 Voting Rights Act. The neoconservatives urge us to drop racial quotas and to return to the legacy of Dr. Martin Luther King. Roberts and Stratton take the argument in a far different and much more illuminating direction.
In a move sure to provoke cries of outrage, our authors oppose the very foundation of modern civil rights law, the decision in the celebrated case (actually a consolidation of several cases) of Brown v. Board of Education (1954). Chief Justice Earl Warren, speaking for a unanimous court, found segregated schools “inherently unequal.” As such, they violated the Fourteenth Amendment to the Constitution and were to be eliminated, as an order the next year famously put it, “with all deliberate speed.”
How can a sane person of good-will oppose the Brown decision? Does not doing so brand one as a benighted defender of racial segregation, if not of the reimposition of slavery? Our authors do not argue as advocates of a regime of white dominance: they themselves oppose segregation. Roberts tells us that he “helped to organize civil rights protests as a college student” (p. i); he further claims, “This book is not about racism, segregation, or integration” (p. iv).
The mystery deepens. If the authors oppose segregation, on what grounds can they reject Brown? Their response lies in the nature of the Courts reasoning, with its disastrous implications for the future of the American political system.
As earlier mentioned, Chief Justice Warren found segregated schools at variance with the Fourteenth Amendment. But he did not claim the intent of the framers of that Amendment was to end segregation. Quite the contrary, the Chief Justice stated: “we cannot turn the clock back to 1868 when the [14th] Amendment was adopted, or even to 1896 when Plessy vs. Ferguson was written” (p. 44. The Plessy decision upheld a Louisiana law that mandated separate seating in railroads: Brown partially overturned it). Indeed, to argue that the Fourteenth Amendment, as originally intended, could be bent to the purposes of the Warren Court was a losing enterprise. The very Reconstruction Congress that passed the Amendment established segregated schools in the District of Columbia.
But if the Amendment did not mean what Warren and his fellow justices said it did, then the conclusion is obvious, however much it grates against prevailing sensibilities. The Brown decision constitutes a naked act of judicial usurpation. It substitutes a regime of judicial oligarchy for the self-government of the American people. (The authors amusingly use the obscure word “kritarchy,” to describe rule by judges.)
Even, then, if one approves the goal--the end of segregation--an evil means cannot rightfully be used to attain it. Once we accept the principle that the Supreme Court can establish and overturn law as it wishes, what assurance do we have that the goals at which the Court aims will invariably be to our liking? The authors spend much of the book showing that the busing, quotas, and preferential treatment that have in recent years aroused so much popular fury stem from exactly the principle of judicial oligarchy paramount in Brown.
The analysis offered by Roberts and Stratton must confront an objection. They argue that if the Court was not justified by original intent, it has substituted its arbitrary will. But perhaps the justices followed some other standard besides original intent. If so, the answer to the claims of arbitrariness and usurpation may be at hand.
Some other rule, it might be argued, guided the Court; it is this rule, not their naked wills, that the members of the Court endeavored to put into effect. How, then, did the Court attempt to justify its decision? (Parenthetically, even if one could show that the Court followed a reasonable principle in deciding Brown, the Court would not be home free. The issue would then arise: what was the Courts constitutional warrant for use of that principle in their decision?)
The authors response turns the objection in their favor. The rationale of the Court in Brown compounds the felony: it itself rests on a premise inconsistent with democracy. Chief Justice Warren based his opinion on studies by psychologists and sociologists that purported to show the harmful effects of school segregation on black children. Further, the harm in question could not be left for Congress and state legislatures to remedy. American society, pervaded by racism, could not by its own efforts end segregation. Judicial guidance was essential.
Where did Warren get his strange ideas? The answer lies in a notorious footnote of the decision: “See generally, Myrdal, An American Dilemma.” The Court abandoned the Constitution for the dubious study of a Swedish economist, Gunnar Myrdal, of markedly socialist opinions.
Myrdal used his massive work to drum home a deadly message. To reiterate, in his view America was so sunk in racism that its people could not act to end segregation by their own volition. Only a superior caste of judges, guided, of course, by socialist intellectuals such as Myrdal himself, could break the bonds of prejudice.
Roberts and Stratton find Myrdals argument at odds with a free society. “The basis for the desegregation decision threw out the fundamental presumption of any democratic order--goodwill among citizens regardless of class, race, or gender. Without goodwill there is no basis for uniting different people in democratic self-rule” (p. 5). To claim that people inevitably respond to racial or class interests is to adopt a key principle of Marxism. People, in this view, cannot be swayed by appeals to reason or morality; interest dominates all action.
In combatting this assumption, the authors of course do not adopt the nonsensical view that peoples interests never influence their political deliberations. Rather, all that they reject is the claim that these interests operate with iron force, leaving us no room for deliberation and moral suasion.
An episode the authors do not mention supports their claim that Myrdals work was fatally infected with deterministic assumptions. In a German work written decades before An American Dilemma, Myrdal claimed that economists do not objectively pursue truth. Rather, their theories reflect the interests of the economic class to which they belong.
Ludwig von Mises exposed the fallacies in Myrdals case to devastating effect; as a result, Myrdal dropped the claim in the English translation of his book, without mention of Misess criticism. (Mises exposes Myrdals dishonesty in the preface to Epistemological Problems of Economics.)
If the authors are right, and they have made a powerful case, a new question demands attention. How did the Court come to adopt so strange a view? Perhaps the greatest contribution of The New Color Line lies in the detailed account it provides of Browns genesis.
When the case was first argued before the Court in December, 1952, the tenor of the questions by the Justices strongly suggested that the Court was not about to overturn separate schools. John W. Davis, widely regarded as the greatest twentieth-century member of the Supreme Court Bar, easily bested Thurgood Marshall, the lead counsel for the plaintiffs, in argument. Further Fred M. Vinson, then the Chief Justice, regarded the issue of segregation as one best left to the legislative branch.
In 1952, the Court seemed inclined to uphold Plessy; the decision, when issued in 1954, unanimously condemned segregation. What happened? Our authors locate the answer in the machinations of Justice Felix Frankfurter, a Roosevelt appointee to the Court who fancied himself a great judicial statesman. Frankfurter strongly desired a verdict for the plaintiffs but recognized the weakness of Marshalls case.
What was to be done? Frankfurter persuaded his colleagues to order the case reargued, thus averting an unfavorable outcome. The Justice Department was invited to submit a new brief. By odd coincidence, the attorney in charge of civil rights cases for the Justice Department was Philip Elman, a former law clerk of Frankfurters. Elman had the task of preparing the new brief; and he did so in close consultation with Frankfurter. In gross violation of judicial ethics, a sitting justice thus assumed the role of advocate. Frankfurter, a friend of Myrdal, strongly advised reliance on the work of this Swedish socialist; and Elman proved an apt student.
Roberts and Stratton tell the story in great detail and with a high sense of drama. I do not think it quite enough, though, to say that Frankfurters clerk, Alexander M. Bickel, “argued that the language used by the Constitutions framers was so elastic that the Court could reinterpret it according to the needs of the times” (p. 40). This is not wrong, but it leaves out Bickels claim that the language of the Fourteenth Amendment was designed by its framers to be open for future construal.
Further, to say that “[s]egregation was supported by more than a half century of precedent” (p. 44) goes too far. Several cases, decided before Brown, had already weakened Plessy. But on the whole the discussion of the intrigue that led to the Brown decision is first-rate. How ironic that in some circles Frankfurter retains his inflated reputation as a supporter of judicial restraint.
I have concentrated on the books discussion of Brown, since this seems to me by far the works most vital contribution. But it includes much else of interest, including a spirited argument against quotas. The authors contrast the classical liberal principle of equal treatment of all before the law with the creation of legally privileged castes. To guarantee jobs, promotions, and contracts to some groups, while excluding others, is to return to feudalism.
Relying on the work of the great French medievalist Marc Bloch, the authors argue that “[h]istorys compelling lesson is that privileges once granted are not easily rescinded” (p. 129). This ingenious parallel brings to mind a similar display of ingenuity in a notable early essay on the Pirenne thesis by the books senior author. But this is by the way.
By their sharp challenge to conventional opinion, Roberts and Stratton have compelled a complete rethinking of the civil rights decisions of the Warren Court and its successors.
