Politically Incorrect Guide To The Constitution (Politically Incorrect Guides) (35 page)

When Allen Bakke first applied to the University of California Medical School in 1973, the school reserved 16 percent of its admissions for
minorities. Bakke was denied admission even though his qualifications
were better than those of all the minority candidates admitted under the
16 percent quota. In fact, as the Supreme Court conceded (in a footnote),
the qualifications of the minority students were pitifully poor.

Would you want your heart surgery performed by a doctor who had
scored in the bottom third on the Medical College Admission Test
(MCAT)? Note that the MCAT percentiles listed in the box at left are average scores of the admittees, which means that some of them scored lower
than the bottom third or even below the eighteenth percentile on portions
of the MCAT.

The Court's decision was nonsensical: four justices would have upheld
the University of California's program as consistent with the Equal Protection Clause, four would have torpedoed it completely, and the ninthJustice Lewis Powell, who would make a career of decisions like
this-voted to force the school to admit Bakke while also stating that
schools could give particular races and ethnic groups special privileges
to augment "educational diversity." These privileges, however, had to be
"on the margins." A forthright quota could not be used.

Of course, given the enormous disparity between the qualifications of
most students admitted to the school and those of the preferred minority
applicants, marginal "affirmative action" would have admitted few, if
any, specially privileged minority students at all.

In Hopwood v. Texas (1996), a case similar to Bakke, a circuit court of
appeals struck down the race-based admissions policy of the University
of Texas School of Law. The court stated that the University of Texas
could not use racial discrimination now "to make up for past racial
wrongs."

The Supreme Court let that case stand, but then in Gratz v. Bollinger
(2003), it ruled that while the University of Michigan could no longer give blanket preference to members of certain preferred minority groups,
its law school could discriminate in the way outlined by Justice Powell
in Bakke-which presumably made Hopwood a dead letter.

Way back in the 1950s, with Brown, the Court had announced non-discrimination as "new law for a new day." But when the legislators on the
bench didn't like the results of non-discrimination, they told state governments that it was acceptable to discriminate against academically
high-achieving racial groups (usually Asians and non-Hispanic whites)
in favor of underachievers (blacks, Hispanics, Eskimos, Aleuts, and Indians). Some kinds of race discrimination were better than others.

Do you think the ratifiers would agree? To ask the question is to answer
it.

The Fourteenth Amendment has nothing at all to say about sex discrimination, and while it was a matter of public debate at the time (the late
1860s and the 1870s) whether women should be granted the rights guaranteed to black men, Congress omitted language from the Fifteenth
Amendment guaranteeing women the right to vote. A hundred years later,
however, the Court was ready to break new legislative ground.

So in the 1973 case of Frontiero v. Richardson, Justice William Brennan offered up an opinion effectively declaring sex discrimination on par
with race discrimination. He won three other justices' votes for that opinion, falling one short of a majority. If he had won, the Court would have
(yet again and unconstitutionally) passed into law a constitutional
amendment. As it was, the public was already discussing an Equal Rights
Amendment to the Constitution, which Congress had sent to the states
for their ratification. If Brennan's opinion had been the majority opinion,
it would have rendered the public debate pointless. And in the end, it would have overturned the result of the
states' consideration of the amendmentwhich was to reject it.

If Justice Brennan did not win that one,
he did win in 1976s Craig v. Boren, in
which the Court invalidated a provision of
Oklahoma law setting the male drinking age
at twenty-one and the female drinking age at
eighteen. Justice Brennan sounded every bit
the 1970s feminist in his "reasoning." He
used the word "gender" instead of "sex" and
invoked the (constitutional?) idea that legislators should seek "more `germane' bases of classification." He then
turned to evidence showing that boys eighteen to twenty were more than
eleven times as likely as those twenty-one or older to be arrested for
"alcohol-related driving offenses," which he described as an "unpersuasive" justification for such "gender" discrimination.

How wonderful for the people of Oklahoma, then, that justice Brennan
was going to substitute his elevated expertise for that of the local, elected
legislators who had determined that a 1,111 percent higher likelihood of
alcohol-related offenses was substantial! Need it be added that Brennan's
diktat about men and equal protection had no relationship whatsoever to
the Supreme Court's own previous definition of the Equal Protection
Clause's purpose: protecting recently freed slaves from their masters?

Having invented the idea that sexual classifications fall under the Equal
Protection Clause, the Court has since felt itself entitled to strike down various other state statutes distinguishing males from females. In 1982's Mississippi University for Women v. Hogan the Court struck down the school's
"sexist" admissions policies. The Court ruled that it caused impermissible
hardship to a male applicant who lived in Columbus, Mississippi (where the school is located), to have to travel to
Jackson or Hattiesburg, where he could
find state-supported nursing schools that
allowed men to enroll.

Translation: We Can Do
Whatever We Want

"We who have the final word can speak
softly or angrily. We can seek to challenge
and annoy, as we need not stay docile and
quiet."

Justice William 0. Douglas

Notoriously, in United States v. Virginia (1996), the Court disallowed the allmale admissions policy of the Virginia
Military Institute (VMI). The hallowed
Virginia school objected that admitting
women would change the school's purpose, lower the physical fitness
standards the school required, and force it to segregate its traditionally
shared housing (essentially a barracks). The Court swept these concerns
aside as insignificant. In short, perhaps the people of Virginia had
believed for a century and a half that the all-male education offered by
VMI was worth public support, but a majority of the Supreme Court came
to a different legislative conclusion. The Court used the fig leaf of the
Equal Protection Clause as justification to substitute its judgment for the
Virginia General Assembly's.

Nothing since Brown and its "civil rights" interventions has won the
Court more plaudits from the liberal intelligentsia than inventing and
developing a "right to privacy." Under this rubric, found nowhere in the
Constitution-but allegedly hiding there-the courts have created a right
to marital contraception, a generalized right to contraception, a right to
abortion, and a right to homosexual sodomy; they have even created a
right not to have a state constitutional provision banning officials from
conferring special privileges upon homosexuals. (No, that is not a typo.)

The Court first turned to this matter in Griswold v. Connecticut (1965).
In that case, a physician had been convicted of violating Connecticut's ban on prescribing or using contraceptives. He appealed, claiming that
the Connecticut law violated the Fourteenth Amendment's Due Process
Clause. As the Connecticut law had nothing to do with protecting the
rights of freed slaves (which was what the Fourteenth Amendment covered), it was only through the magic of the Supreme Court that this logic
could be even remotely tenable.

A Book You're Not
Supposed to Read

The Southern Essays of Richard Weaver by
Richard Weaver (particularly the essay "Life
without Discrimination"); Indianapolis: Liberty Press, 1987.

Justice William 0. Douglas should have produced guffaws when, for
the majority, he announced, "We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions."
Exceptions, though, inevitably had to be
made. As Justice Douglas noted, "This law,
however, operates directly on an intimate
relation of husband and wife." It was not
clear why the Supreme Court was the proper
institution to pass upon the desirability of
state laws operating "directly on an intimate
relation of husband and wife." That role for
the Court never came up during the drafting
and ratification of the Constitution.

But according to the Court, the Due
Process Clause of the Fourteenth Amendment enshrined a right for married couples
to use condoms. Perhaps the Constitution
did not actually say so, but "the specific guarantees in the Bill of Rights
[as purportedly made applicable against the states by the Due Process
Clause] have penumbras, formed by emanations from those guarantees
that help give them life and substance. Various guarantees create zones
of privacy."

Even among academics devoted to the existence of a "right" to contraception, Douglas's "reasoning" here is considered entirely laughable. Mere mention of the "emanations of penumbras" will draw titters in most
legal forums. But, as in the sex discrimination cases, lack of justification
has not led to the unraveling of the precedent. Far from it: the Court has
built upon Griswold and continues to do so.

Isn't This a Job for
Legislatures?

"We must never lose sight of the fact that
the law has a moral foundation, and we
must never fail to ask ourselves not only
what the law is, but what the law should
be."

Justice Anthony Kennedy

In Eisenstadt v. Baird (1972), the Court extended the newly minted
contraception right to unmarried couples. Next, in 1973, it decided that
there exists a "constitutional" right to procure an abortion. Purchase of
this service, and its provision by strangers, is a component of "privacy,"
which is a general right enforceable by the federal courts against the
states.

With its decision to that effect in Roe v. Wade, the Court undid the
abortion regulations of all fifty states. Academics and liberal intellectuals helped sell this idea to the public by taking up the word fetus (Latin
for "very young one") to refer to unborn
babies (eventually defined by the Court's
precedents as "babies whose heads have not
cleared the birth canal completely"). As the
Fourteenth Amendment was self-evidently
about protecting the civil rights-including
the right to life-of former slaves, it took the
"reasoning" of a Supreme Court justice to
turn it around and use it to establish a right
to end the lives of unborn children.

It seemed likely to many observers that
the Court was going to backtrack on its controversial Roe decision when
it undertook to decide 1992's Planned Parenthood v. Casey. A series of
appointments to the Court by presidents forthrightly opposed to Roeand opposed to "judicial activism" generally-gave the Court an opportunity to recant.