Law, Justice and Democracy

The long shadow of Brown

by Patrick J. Shanahan
07/01/03

The recent Supreme Court decisions on Affirmative Action and sodomy laws have created an absolute surfeit of silliness. From the bench, from the sidelines, in our newspapers and on our local news there was almost nothing of substance. About the only truly important bits of clarity were Justice Scalia’s blistering dissent in the sodomy case, and a recent Charles Krauthammer column in which he correctly noted that the Michigan Affirmative Action case was not proper fodder for Constitutional litigation.

Underlying the silliness is a sad reality: almost all of us - conservative, liberal or middle of the road - share a poisonous misunderstanding of the role of the Court. We are all judicial activists now. Those who would use the Court to invalidate the University of Michigan’s admissions policies on Constitutional grounds are just as guilty of activist leanings as are those who would use it to validate homosexual practices. We all seem to be losing the ability to distinguish between that which is desirable (or undesirable) and that which is constitutional.

Affirmative Action is a lousy idea, for many reasons and on many levels. But that doesn’t make it a constitutional issue! The folks who framed and ratified the Fourteenth Amendment did not do so intending to change university admission practices. It is absurd and disingenuous to claim that racial preferences in admissions violates “equal protection of the law” as laid out in the Constitution. Yet we seek to use the court as a tool to change that policy on Constitutional grounds.

At the risk of blowing my chances for appointment to the Supreme Court, I trace this problem back to the landmark case of Brown v Board of Education. In that case, the desire to mend a severe injustice was just too strong for the Court to resist. While the specific issues and results of Brown are debatable and defendable on Constitutional grounds, and while it mended a serious social problem, it set a horrible judicial precedent by elevating “justice” over the law. That may sound a bit odd to the modern ear. Isn’t that the whole point of the law? Well, yes. But the traditional American understanding of justice is that it was the result, the outcome of the fair and consistent application of the law. What changed with Brown was that justice became an end to itself, it became elevated above the law.

This may sound noble, but each of us has his own idea of what is “just.” By elevating justice above the law, by permitting and encouraging our judges to imbue the Constitution with their own concepts of justice, it set the groundwork for the horribly mutating series of decisions - from Griswold to Roe to Bakke to Lawrence - which have disfigured the Constitution almost beyond recognition. Each of these decisions was reached specifically to achieve a concept of “justice” that a slim majority of the Court saw as being stymied by the democratic process. In fact, that is pretty much the Court’s major preoccupation nowadays. Almost all of the major decisions of the last three or four decades have revolved around the Court invalidating state laws that violated their sense of justice.

In the process the workings of democracy have been horribly damaged. Liberals like to wink to one another when they hear the term “state’s rights.” They know it is “code” for racism. But the reality is that most of the actual democracy that occurs in our country occurs at the state level. The sustained assault on state laws that are deemed “unjust” is a direct assault on democracy. Not only is justice elevated above the law, it has been elevated above democracy itself. This is a perversion of the concept of judicial review, and of the Constitution.

It saddens me greatly to see conservatives suckered into this line of thinking. If we are upset at the admissions policies of the University of Michigan - and we ought to be - the answer lies with the state of Michigan, not with the Supreme Court. To seek constitutional validation for ending affirmative action is to seek justice at the expense of democracy. To accept that is to accept that the future of constitutional law consists of a giant shell game in which one ideological camp or the other has a slight advantage and can therefore impose its concept of justice on all of us. We are perilously close to that point now.

As we approach Independence Day, let us reflect that the Declaration of Independence refers to “Life, Liberty, and the Pursuit of Happiness”, not the Pursuit of Justice. The philosophy of the Founders - as expressed through both their “Vision Statement” (the Declaration of Independence) and practical implementation of that vision (the Constitution) was one in which the rather mundane, unglamorous and sometimes flawed processes of local democracy defined the majority of the world we lived in. Times have changed, but that in my mind still represents the best and clearest vision of practical democracy. The inevitable changes in morals, social structures and societal fashion should be reflected through that practical democracy, not through five Supreme Court justices.

The pursuit of “justice” by any means is directly at odds with that vision. It now appears that all sides in the ongoing ideological debate have bought in to the underlying premise of Brown. In our mad pursuit of justice we are slowly strangling democracy. And that’s unjust.