The basic concerns of this book go well beyond detailing how the original goals of the civil rights movement have been shamelessly perverted by the courts and bureaucracy. The authors show in some detail how the courts and bureaucracy acting in tandem have endorsed quotas and set asides, policies that now make race and sex “determining factors” in private employment decisions, which is contrary to the plain language and legislative intent of the Civil Rights Act of 1964. But the lasting value of this work relates to its thesis that our civil rights policies involve enormous costs, not the least of which is the total abandonment of the fundamental values and practices of our Western liberal heritage. Viewed from a wider perspective, this book is a case study that points out concretely in the area of civil rights what many Americans sense only vaguely with regard to a wide range of policy concerns: the values of our Founding Fathers are being eroded through processes over which there are scarcely am democratic controls.
In detailing this abandonment, the authors rightly stress the centrality of “equality before the law” and the “democratic ideal” to the liberal tradition. With the emergence of “equality before the law,” the individual was liberated from the constraints of “birth, privilege, and class” that determined his place and status in the feudal order. For its part, the “democratic ideal” relies on and strives to cultivate the common values that allow for civil discourse, the existence of “goodwill” among citizens that allows for resolution of differences without bitterness, hostility, or the need for government coercion, and, inter alia, the acceptance of the majority rule principle for making decisions after due debate and deliberation.
These traditional values, the authors maintain, have been ravaged in the civil rights “crusade” that started in 1954 with the Supreme Court’s decision in Brown v. Board of Education. Gone now is “equality before the law.” hi its place we have new categories of privilege, “race, general, and handicapped status,” as invidious as those found in feudal times. The “democratic ideal” has suffered perhaps irremediable damage. Our civil rights policies clearly did not result from the consensual processes provided for by our Constitution. Contrary to the basic tenets of traditional liberalism, the authors assert, we find that government today is pitted against society in the area of civil rights on the “premise” that there are “hegemonic discriminatory structures in law and employment that must be broken up by government coercion.” Needless to say, given this state of affairs, “goodwill” has long since dissipated in large sectors of society.
The authors’ claim that the Court’s Brown decision was the immediate cause for the depreciation of these values is bound to arouse controversy. But their argument is compelling. “The most important result of Brown,” they write, “was not the desegregation but the rise of kritarchy; the rule of judges. From Prince Edward County to Yonkers to Kansas City, cities, counties, and states have lost their sovereignty to federal judges who overturn democratic outcomes and usurp the power of the purse.” “Brown,” they continue, “has led a generation of judges to believe that they arc the ultimate power, because the Constitution has no meaning other than their subjective feelings about social policy.”
The significance of this position with respect to the Brown decision should not be lost on conservative critics of judicial activism who, over the years, have had difficulties dealing with this particular ease. Briefly put, liberal defenders of judicial activism use the Brown decision not only to take the high moral ground, but to point out that the Court must on occasion assume wide-ranging powers to promote “justice,” “human dignity,” and the like. Moreover, these liberals have managed to confound many conservative critics of an activist judiciary by simply pointing to Brown and asking whether the conservatives would have decided the case otherwise. A standard conservative response runs that the holding against segregation is correct, but the rationale used by the Court in support of its decision, relying primarily on sociological and psychological findings, is unsatisfactory because the decision could have been based on the “equal protection” clause of the Fifth Amendment. Yet this response has never been satisfactory: to establish a link between the intentions of drafters or ratifiers of the 14th Amendment and the Court’s ruling in Brown calls for an ingenuity that would do Justice Brennan proud. And, clearly, any such linkage would only legitimize further judicial circumventions of the democratic processes.
One of the more important messages of this book, then, is that whatever good resulted from the Brown decision (and it is certainly debatable whether the decision improved or worsened race relations) is far outweighed by the costs to constitutionalism and deliberative self-government. To say the least, the line of argument employed by Roberts and Stratton removes the Brown “encumbrance” that has served to hamper conservative critics of kritarchy. Equally significant, pointing to the logical consequences of Brown serves to deprive judicial activists of the moral high ground. They move to an even higher level of analysis by stressing that the Brown decision cannot be understood in isolation from its ideological moorings. Its origins, they demonstrate, are to be found in the views advanced by the Swedish socialist Gunnar Myrdal (1898-1987), long an idol of the American liberal community. One theme of Myrdal’s widely heralded and enormously influential work, An American Dilemma (1944), most relevant to Brown was that “American racist impulses were so strong . . . segregation could not be overturned through the democratic process.” He concluded that America was “caught in a dilemma between its creed of equality and the reality of segregation.” His elitism, sense of moral superiority, and basic distrust of democracy, as Roberts and Stratton show, compelled Myrdal to conclude that the integration of American society could only come about through the efforts of an educated elite, not through the democratic processes provided for in the Constitution. He eventually came to hold that integration could be best achieved through the Supreme Court acting in the “spirit of the Reconstruction Amendments.”
Myrdal’s message was not lost on the NAACP legal division that devised a strategy to downplay the centrality of original intent and precedent in legal interpretation while extolling the virtues of “legal realism,” with emphasis on the need for a sociological approach to jurisprudence. More importantly, Myrdal’s teachings apparently had a profound impact on Justice Felix Frankfurter, who went to great lengths to secure a victory for the NAACP and Thurgood Marshall in the Brown ease. Not only did he maneuver to secure a “two-year delay and subsequent rehearing of the ease to overcome Marshall’s initial failure before the Court in 1952,” during this delay “he conspired with the Solicitor General’s office to shape the Justice Department’s briefs and oral argument in a manner designed to sway his colleagues on the Court.” In these efforts, Frankfurter worked closely with Philip Elman, one of his former clerks, who served on the Solicitor General’s staff and “handled all civil rights cases before the Supreme Court in which the United States was involved as either a party or amicus curiae.” Thus, the authors conclude, “the Brown decision was won not only at the expense of the democratic process, but also at the expense of judicial impartiality.”
Frankfurter’s violation of judicial ethics, clearly vital to the evolution of the present indefensible civil rights policies, is significant for another reason. It reveals the power of ideology cloaked in righteousness that presumes to know what direction society should take; an ideology that should not be underestimated with regard to either its strength or prevalence in certain circles. The New Color Line points out how even the most basic principles and values undergirding the American constitutional order were corrupted by its own institutions through the stealth and cunning of ideologists motivated by their visions of racial “justice.” That this could happen means that something is drastically amiss in our political culture. It also serves to warn us to be ever vigilant: similar “progressive” ideologies that range well beyond civil rights concerns find favor in elite circles, particularly at our more prestigious law schools in their various “critical legal studies” programs.
The final message of The New Color Line is perhaps the most important: “Ultimately, either quotas will go or democracy will, because legal privileges based on status are incompatible with democracy’s requirement of equal standing before the law.” Quite so. But what is not certain is which one will go.
[The New Color Line: How Quotas and Privilege Destroy Democracy, by Paul Craig Roberts and Lawrence M. Stratton (Washington, D.C.: Regnery Publishing) 217 pp., $24.95]