The Court versus Federalism
June 26, 2003
The U.S. Supreme Court has done it again, striking
down a Texas law prohibiting homosexual acts. I havent read the
opinion yet, but I think I get the idea. As usual, the Court is being
Im still reeling from
Sandra Day OConnors majority opinion in the affirmative
action cases, issued earlier this week. In the excerpts published in the
papers, she managed to use the words diverse and diversity
nearly fifty times. Nobody would call her prose musical.
OConnor is a walking
example of affirmative action. Ronald Reagan wanted to be the first
president to appoint a woman to the Court, so he picked her, a woman
judge with no particular distinction but lots of Republican connections.
Her nomination was hailed as historic, like the
inevitable comparison Jackie Robinson playing in the big leagues.
The difference is that Robinson
was good at what he did. He wasnt picked to fill a quota, or to
provide diversity. He was chosen because he was a great athlete, and he
could win ballgames. Which he proceeded to do for many years with the
OConnor has made her
niche as a swing vote on the Court. Her mind is perfectly
banal, but you never know which faction she will vote with. She is
politically, not intellectually, interesting.
The Courts first
affirmative action justice was Thurgood Marshall, who was equally devoid
of original thought but predictably liberal. He never deviated. He never
surprised. He never sharpened ones understanding of constitutional
law. Never even coined a fresh phrase.
Marshall cared about was results. He always knew the outcome he wanted
and voted accordingly. His reasoning was perfunctory, and today nobody
I love diversity, really I do, but
you dont achieve it by gathering mediocre people with the sort of
superficial differences that interest liberals. You can get real diversity by
assembling a group of people with keen minds, even if they look identical.
A half-dozen lively minds will produce a richer conversation than a
hundred dullards. Seek intelligence first, and diversity will take care of
In the affirmative action cases,
OConnor didnt even cite the Constitution. She merely echoed
the Pledge of Allegiance one nation, indivisible
which has no legal value, but does have dubious constitutional
implications (which she is probably unaware of).
Maureen Dowd of the New
York Times bitterly ridicules Clarence Thomas for opposing
affirmative action, since his race was obviously a chief factor in his own
selection for the Court. In effect she accuses him of biting the hand that
But by her logic, a man who gets
a seat on the Court through bribery should thereafter vote in favor of
bribery. Happily, however, Thomas has shown a better understanding of the
Constitution than most of his colleagues. He realizes (most of the time)
that the Tenth Amendment is the cornerstone of American federalism.
The real genius of the American
political system is the original understanding, born more of experience
and compromise than of theory, that power should be limited, divided, and
dispersed. Spreading power thinly is one way imperfect, but
practical of protecting liberty.
Unfortunately, most Americans
have lost their grasp of this vital idea, to which this country owes so
much of its real greatness. Since the Civil War the prevalent tendency has
been to concentrate power, enabling the Federal Government to dictate
terms to the states. This is contrary to the principle of the Tenth
Amendment and to the very structure of the Constitution. Supposedly
progressive, centralization repudiates and undermines
Americas best heritage.
Instead of opposing this
centralizing tendency, the Court itself has become an instrument of
centralization. Its up to its old tricks in striking down the Texas
Maybe its a bad law, but
that isnt the real question. The issue is whether its up to
the Federal Government, including its judicial branch, to make and enforce
that judgment. Nothing in the Constitution says, or remotely implies, that
In a truly federal system, states
are united on a few specified points, but free to differ in all other
respects. How ironic, but how typical, that the apostles of
diversity want to make the states uniform. Real diversity,
the kind the United States used to have, is the last thing they want. This
is E pluribus unum with a vengeance.