The New Racism

Shanta Driver, who argued Schuette v BAMN before the Supreme Court and lost, 6-2, is protesting her loss:

This is a racist decision that takes us back to an era of state’s rights. This decision cannot stand.

Yeah. The 10th Amendment can’t be allowed to stand. It must be struck, and never mind that Article V bit; that’s just in the way.

Oh, and never mind that the outcome of the Supremes’ ruling was to uphold a decision by the citizens of Michigan to codify in their constitution the concept that race (or gender, ethnicity, or national origin) cannot be used as a criterion for selection for admission to college.

Because to be color-blind, to not use race as a mechanism for preferential treatment, is racist. The new racism.

Bigotry in the Supreme Court

…not of the Supreme Court. I writing now about the Court’s ruling in the Michigan affirmative action case (Schuette v BAMN) concerning the state’s “decision to end affirmative action at its public universities.”

The Court ruled 6-2 to uphold Michigan’s decision, holding essentially, that such a choice should be left to the States’ citizenry and not determined by the court system.

Justice Anthony Kennedy, writing for the Court (mostly—there were a number of separate concurring opinions), expanded on that:

The electorate’s instruction to governmental entities not to embark upon the course of race-defined and race-based preferences was adopted, we must assume, because the voters deemed a preference system to be unwise on account of what voters may deem its latent potential to become itself a source of the very resentments and hostilities based on race that this nation seeks to put behind it.

Justice Elena Kagan recused, Justice Sonia Sotomayor dissented, and Justice Ruth Bader Ginsberg joined the dissent.

Sadly, Sotomayor’s dissent was fundamentally racist.[1] She insisted that “race matters.” And

The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.

Indeed. But the Constitution, which must be applied “with eyes open to the unfortunate effects of centuries of racial discrimination,” must be applied as it is written—especially because, in the present context, the Constitution is color—and gender, come to that—blind, and explicitly so under the 14th Amendment. That means that there cannot be anything other than equal treatment under law; in particular, there cannot be special treatment for some groups, and there cannot be special treatment for some groups at the expense of other groups.

Applying special treatment, as Sotomayor demands because of those centuries of racial discrimination, is only to maintain that racial discrimination for centuries more.

She attempted to offer alternatives to citizens speaking their voice:

In the wake of Grutter, some voters in Michigan set out to eliminate the use of race-sensitive admissions policies. Those voters were of course free to pursue this end in any number of ways. For example, they could have persuaded existing board members to change their minds through individual or grassroots lobbying efforts, or through gen­eral public awareness campaigns. Or they could have mobilized efforts to vote uncooperative board members out of office, replacing them with members who would share their desire to abolish race-sensitive admissions policies.

This, of course, is just what the voters of Michigan did—only they did it state-wide, rather than piecemeal. There is no difference between the two, except in the mind of Sotomayor.

She buried this in a footnote:

Although the term “affirmative action” is commonly used to describe colleges’ and universities’ use of race in crafting admissions policies, I instead use the term “race-sensitive admissions policies.”

Which is nothing but the racism of preferential treatment based on race. Made blatant by her preferred term of reference.

Sotomayor concluded her dissent with this:

For members of historically marginalized groups, which rely on the federal courts to protect their constitutional rights, the decision can hardly bolster hope for a vision of democracy that preserves for all the right to participate meaningfully and equally in self-government.

Because, of course, we cannot demarginalize those groups by treating them like adults and equals, we can only demarginalize them by perpetuating their status as…dependents…through continuing to single them out for special treatment.

I respectfully dissent from Sotomayor’s dissent.

 

[1] I of course do not mean to suggest that Justice Sotomayor wrote with anything like invidious intent. But the dissent at issue in this case seeks to change the rules of the political process and of the 14th Amendment to the disadvantage of members of our society disfavored by government.

Update: Added Justice Sonia Sotomayor’s first name to the first time she’s mentioned in the post.  It’s my usual habit; I missed it this time.

What is a Conservative?

This post—a long one, so heads up—borrows heavily from a premise I develop early in my book A Conservative’s Manifesto.

One theme that ran through the English colonies in North America, early on, was the view that some men are better than others, and those others are born to be led—they have no liberty, only those “freedoms” and “rights” handed down from on high by the government that rules over them.  The common man is incapable of reason, is unable to decide what is best for himself, and must be led by his betters.  Of course, this governance always is for only the best of reasons: “We know better,” and “It’s for your own good.”  And it flowed, then, from a pater familias and kindly king.

However, those same colonists were an essentially self-selected population of men and women who had gotten fed up with the religious persecutions rampant in the Old World—both Great Britain and the European continent.  They also were tired of the lack of political and social freedom of that former life, especially as those stood in stark and growing contrast with the lives circumstance forced them to lead in these New World colonies.  No fatherly monarch, no benevolent and watchful Parliament, stood guard over these people; they were far too remote geographically, and rapidly becoming so emotionally, as well.  These men and women had, for their very survival, to depend on themselves and on each other, to rely on their own creativity and their own initiative—as, for instance, the survivors of the Jamestown and Plymouth colonies discovered.  They began to see, empirically, that they were capable of reason, they were fully able to decide what was best for themselves.

As a result, the colonists, having already selected themselves according to a characteristic of being able to seek something better for themselves, also began to understand what “better” might be and to pursue it.  This growing realization and a parallel growing sense of themselves as peers (in several senses of that word, even though lacking in title) of their English cousins in the empire, rather than as dependents, accelerated rapidly in the 18th century.  Their growing sense of distance and separation was helped along by an increasingly intrusive monarchy and Parliament as Great Britain sought to strengthen its hold on the colonies—both to preserve Empire and as weapons against continental powers in an also rapidly growing economic and political competition.

The American Revolution began when two major groups of people got fed up.  It began when the gentleman farmers, the lawyers, and the well-educated (most of them church school educated, church schools being the dominant source of secondary education), many of whom were men of the cloth—this colonial aristocracy, this American gentry—finally had had enough of interference from a monarchy distant and remote, not only geographically, but psychologically and morally, as well.  These men knew Locke and Rousseau, and their classical education also had taught them Roman and Greek ideas of law and polity.

The Revolution also began when the merchants, the businessmen, the small farmers, the laborers, these men who worked for a living (with no pejorative intended toward the American gentry) had had enough of interference with their business, with their pocketbooks, with their livelihoods, with their ability simply to do as they wished, from a monarchy distant and remote, not only geographically, but psychologically and morally, as well.

These two groups of colonials, one perhaps articulating the problems more crisply than the other, had done with the crown’s trampling on individual liberties, had done with the crown’s separation of man’s natural rights from the men themselves—rights that Locke had recognized and described 100 years prior and that Rousseau was articulating simultaneously with the growing colonial rejection of crown abuses of them.  Although the proximate causes of the Revolution were economic and political, the Revolution was broader and more far-reaching.  With a firm reliance on the protection of Divine Providence, the gentlemen mutually pledged to each other their Lives, their Fortunes, and their sacred Honor, and they enlisted the common man to the cause of freedom, as well.  Thus, the second paragraph of our Declaration of Independence contains an explicit reaffirmation of these natural rights as elucidated by Locke and Rousseau:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

As our Founders wrote, building on Locke and Rousseau, the relationship between the citizens of a polity and that polity’s government is a social contract that is originated by the citizens, among the citizens, and that is maintained by the citizens.  The government is an instrument of the people, not the other way around.

Thomas Paine wrote in Common Sense during the winter of 1776 while actively fomenting rebellion, “A government of our own is our natural right….”  Paine repeated this in 1791 in his Rights of Man:

There never did, there never will, and there never can exist a parliament, or any description of men, or any generation of men, in any country, possessed of the right or the power of binding and controuling posterity to the “end of time,” or of commanding for ever how the world shall be governed or who shall govern it: and therefore all such clauses, acts or declarations, by which the makers of them attempt to do what they have neither the right nor the power to do, nor the power to execute, are in themselves null and void.

Further, as Locke and Rousseau emphasized, and as our Founders acknowledged in word and their action of the Rebellion, these natural rights cannot be given up by man to a government; they are God’s gift to man and so are indivisible from us.

Our Founders went further.  Not only is a government the servant of the people, the direction of this relationship utterly determines and controls the nature of the powers that the government has.  This government, this object of the social contract that men have with each other to create that government has only those powers, only those authorities and permissions, explicitly granted to that government by the people in their social contract with each other; and that government has no other such powers, authorities, or permissions whatsoever.

Thus, the social contract which our Founders wrote and which Americans approved among themselves and for themselves, includes the Constitution of the United States, which created a government with the following structure, carefully crafted to correct the deficiencies, both moral and physical, of the monarchy being replaced.

  • an assemblage of representatives of the people, elected by the people.  (Originally, one part of this assemblage, the Senate, had its members chosen by the States’ elected assemblies, in turn elected by the citizens of each state).
  • to counterbalance this assemblage, a national executive officer, also elected by the people (albeit indirectly; the choice is made by an Electoral College, but the electors of a particular State are chosen by a mechanism determined by that State’s legislature, and these legislatures, again, are elected by the citizens of the respective State).
  • counterbalancing these two, an independent judiciary as a third equal branch of the government, whose purpose is to try matters of law, both civil and criminal as created by the representatives and carried out by the executive officer.  The Supreme Court of the United States also makes the final determination, when particular cases rise through the appellate process to it, of the Constitutionality, the legitimacy, of any law.

It originally was envisioned that gentlemen would become the elected officials.  The thinking here was that gentlemen, having no pecuniary interest in the world, were best suited to govern because they would do so disinterestedly and solely with the best interests of the nation at heart (centuries old habits die hard, even in the fire of Revolution).  Here is where the radicalism of our Revolution appears.  The citizen soldiers, the common man, who did most of the actual fighting (through their sheer numbers in the continental forces; this is not to denigrate the sacrifices of gentry, who fought with every bit as much courage and sacrifice), took the American aristocracy, the gentlemen of the Declaration of Independence, Thomas Paine with his pamphleteering, et al., at their word: government should flow up from the people and not down from the pinnacle of an aristocracy.  These private citizens and these pecuniary merchants and businessmen voted in earnest, alongside the gentlemen, in the elections subsequent to victory, and more radically, they stood for office and got elected to city governments and to State and Federal office, in competition with the gentlemen.

Thus, this liberal/radical movement, for this is what it was, even though it was not so organized, brings us to the major outcome of our Revolution.  Society, politics, and the underlying conceptualization of these were changed completely in our new nation compared to the English colonies of just a few short years prior:

  • A completely new social contract among the citizens of the new country was created, one which laid out the new nation’s principles of liberty and which created a republican government subordinate to the people, who are sovereign in that new nation, and which removed all monarchy from the polity.
  • Perhaps most importantly, the individual was recognized as politically superior to government, in control of government, with national sovereignty acknowledged as residing solely in the people and not at all in the government.
  • Related to this, government was recognized to be, and created as, an instrument of the people with the sole purpose of protecting the individual’s natural rights.
  • Religious tolerance (not merely nominal freedom) replaced persecution, and the new government-as-people’s-servant was explicitly enjoined from taking any action that might even begin to seem like taking a stand on religion.
  • Society was severed from government.  Perquisites of social standing, business deals, honors, and the like no longer flowed from a monarchical peak downward through a pyramid of class relationships.
  • Society itself changed and was no longer hierarchical.  Who one was or could ever be was no longer defined by to whom one was connected or where one lived.  Who one was or could become was defined instead by the character and characteristics of that person.
  • More than not merely not hierarchical, society became truly classless:
    • The relationship between a common man and a gentleman changed.  One might work for the other (it was, indeed, a two way relationship, as many of the gentleman were economically ruined by the war and others were unable to collect enough in rents to cover expenses, and so these gentlemen had to work for pay, as well), but each was the equal of the other where it most mattered—civilly, in the eyes of the law and in open court; religiously as our social contract also explicitly recognized, in the eyes of God.
    • Businessmen and merchants were getting elected to legislatures at all levels of government jurisdiction; government service no longer was the sole province of disinterested gentlemen.
  • Central government was limited to a very few, explicitly identified powers.  If the Federal government didn’t have these powers, the people did or their State governments did, and neither needed any permission from the Federal government to exercise them.  Further, the non-named powers were not government’s to give or to withhold; they resided solely in the people or their State governments—which, being closer to the people, were even more directly under their control.

And so we come now to my definition of an 18th Century Liberal.  The Liberal movement had succeeded in withdrawing government from its absolute control over life, and the movement had replaced that with a government that was subordinated to free men as a product of a social contract among free men, with the sole function of preserving the individual liberty of free men, and with powers limited to exactly those necessary to achieve that end and no more.

This Liberal movement also had changed the state of mind of man from that of a dependent whose worth, whose very definition, depended on his connection to others in a governing hierarchy, and restored him to his proper status as a free and sovereign individual and thereby restored to him his understanding of his own true worth.

This movement had restored man, with his rights morally inseparable from his person.  This movement had restored to the individual man his own morality, his own responsibility to act and to accept the consequences of those actions.

This movement had restored to the individual man his freedom of choice.  This movement had restored to him the actual ability to enter into agreements, of his own free will, with his fellow man, and to engage those agreements for any purpose he would—including the purpose of forming a government that can, and can be required to, devote itself to the preservation of his abilities and of his freedoms.

In sum, this movement had restored to the individual man his rights to Life, Liberty, and the pursuit of Happiness.  This movement was consummated by these men, now finally freed of a government thrust upon them against their will (a government which tended to deny the very freedom of that will), reaching an agreement among themselves on the proper nature of a government working for them as sovereign, and then by their establishing that government.

An 18th Century Liberal, then, is a person who recognizes and acts to achieve and to support the following:

  • The individual man is sovereign over his person and his beliefs.
  • The individual man, acting in concert with his fellows, is sovereign over their common polity.
  • The individual man is the sole decision maker as to what he will or will not do, and is acknowledged to have a rationality and freedom of will to do so.
  • The individual man is the sole person responsible for the outcomes of his actions.
  • The individual man is fallen and imperfect but can take his own steps to improve himself, both in physical circumstance and morally, without government mandating those improvements or their means of achievement.
  • The government formed through the mutual agreement of these free men is subordinate to, responsible to, and has only those powers explicitly granted it by, those free men.
  • The government formed through the mutual agreement of these free men must be kept small and limited to, and in, the powers granted it by those free men.
  • The government formed through the mutual agreement of these free men has as its sole purpose the preservation of the liberties of those free men.”

Our contract thus acknowledges that we begin life equal—created equal, equal under law, with equal opportunity—while protecting our freedoms to pursue our own interests and to achieve our own goals without government interference.  This is key: freedom to do as we will and sole ownership of our private property are inseparable from our responsibility for our actions; if we cannot act freely, if we do not own our property exclusive of all other claims, then we cannot assume that full responsibility.  On the other hand, if we do not assume that responsibility, if we somehow slip that off onto another entity (government, for instance), then we give up control over our actions—we lose our freedom.

Now, what is a Conservative?  Today’s Conservative is that 18th Century Liberal: he lives by the principles codified in our social contract, written 230 years ago, which has needed modification only a few times, and then only after open national debate of those specific Amendments.  A modern Conservative trusts to the wisdom, talent, and strength of the individual American citizen, acting individually or in concert with his fellows (a non-government collective action), to resolve crises and to make better lives for ourselves and our children, doing so without the hindrance of government welfare.  A modern Conservative recognizes that on those rare occasions where government assistance is warranted, that assistance must be narrowly defined, short-lived, and a last resort.

Broadening Attacks on Vote Sanctity

Now President Obama is having his DoJ attack Pennsylvania’s Voter ID law.

The letter from DoJ to Pennsylvania’s Secretary of the Commonwealth can be viewed here.  Not only is Obama objecting to protecting the sanctity of a legitimate vote by trying to block efforts at screening “voters” who are ineligible, in this letter he’s also demanding a potful of wholly irrelevant personally identifying information on voters and potential “voters.”  Here’s a sample from his DoJ’s letter:

  • The current complete Pennsylvania voter registration list, including each registered voter’s full name, address, date of birth, identifying numbers (including driver license, social security, or other numbers), voter history, and race.
  • The current complete Pennsylvania driver license and personal identification card list, including each individual’s full name, address, date of birth, identifying numbers (including driver license, social security, or other numbers), and race.

There are a total of 16 different items of information being demanded, including the legitimate request for clarification of the apparent disconnect between the governor’s statement that 99% of eligible voters already have acceptable ID, and the commonwealth secretary’s statement that 758,000 registered voters lack acceptable ID.  However, this question’s legitimacy only exists on the basis of a legitimate concern for voter eligibility and has nothing to do with any voter ID requirement itself.  Since the administration’s attack on the Pennsylvania law has no legitimacy, the question about the disconnect is irrelevant.

Moreover, a voter’s voting history is wholly irrelevant to such an inquiry: what other fishing expedition is Obama’s DoJ conducting, sub rosa?  Nor is the individual’s address or age relevant.  Nor is the voter’s race, except that this administration intends to play, again, its race card.  In fact, the prior question that must be answered is whether legitimate voters are being removed from the voter registration lists in any significant number.  Only then can a question of racial motivation come into play.  (Disparate impact has no legitimate role, here, only motive.)  Since DoJ hasn’t established that legitimate voters are being removed in Pennsylvania, the entire investigation is bogus.

Finally, the Supreme Court already has upheld a substantially identical Voter ID law passed by Indiana.

Why is Obama running this, then?  So he can add names and addresses to his campaign and fund-dunning mailing lists?  So he can target those who might vote or support the wrong candidate?

Religion vs. Atheism in the Public Square

The atheists are at it again.  The Daily Caller describes this situation in Warren, MI.

It seems that the city has allowed a Nativity scene to be displayed, as it has done for a number of years, in the City Hall lobby.  This offends the Freedom From Religion Foundation and a local associate, complainant Douglas Marshall.  Marshall wants to place his own sign next to the Nativity to balance the display.

City Mayor Jim Fouts appears to have a clear understanding of the issue at hand, though.  In response to last year’s letter to Fouts, in which Marshall also objected to the Nativity, the mayor stated that the city was not at all endorsing any religion; on the contrary, all religions were free to have their displays present:

Your objections focus on freedom of religion guaranteed by the U.S. Constitution and that the nativity scene somehow was a violation of that constitutional right because [it] favors one religion over another. I vehemently disagree with your objection[.]  The city of Warren in no way whatsoever shows any favoritism to any religion. All religions are welcome to celebrate their religious seasons with a display in city hall[.]

Indeed, the 1st Amendment says this about the government’s role vis-à-vis religion:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof

Eliding the reference to Congress, notice carefully that the clause discusses religion, and only religion; it makes no mention of atheism.  By Marshall’s own statement (see below), his view, and by extension atheism generally, is not a religion, and so his complaint is outside the scope of the Constitution: he has no constitutionally protected freedom of religion right to present his atheism in the public square (he certainly does have a freedom of speech right to do so, but this he seems not to assert).

This is, to some extent though, a sophistry.  Readers of my blog know that I’m as in favor of the free competition of ideas as I am of the free competition of a market place.  This is the sign that Marshall wishes to place next to the Nativity:

At this season of the Winter Solstice, let reason prevail.  There are no gods, no devils, no angels, no heaven or hell.  There is only our natural world.  Religion is but myth and superstition that hardens hearts and enslaves minds.

Hmm….

Let him put up his sign.  Let the free competition of ideas play out.  The good people of Warren will see the right of this.